Federal Court of Australia

BKT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 918

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the primary judge are set aside and in lieu thereof it is ordered that:

(a)    The decision of the Administrative Appeals Tribunal dated 21 March 2017 is quashed;

(b)    The matter is remitted for reconsideration according to law.

3.    The first respondent pay the appellants' costs fixed in the sum of $5,000.

4.    There be liberty to apply for an order as to the costs of the proceedings before the primary judge.

5.    The liberty reserved by order 4 may be exercised by sending an email to the associate to the allocated judge indicating the order sought, short submissions as to why the order should be made and whether the order is opposed. If the order is opposed, further directions will be made as to the determination of any order as to the costs of the proceedings before the primary judge.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    Two citizens of Nepal were married in 2008. In 2009, they were both granted student visas to enter and stay in Australia. In 2014, whilst in Australia, they applied for protection visas. A delegate of the Minister refused their applications. In 2017, the Administrative Appeals Tribunal affirmed the delegate's decision. In 2020, an application for review of the Tribunal's decision was dismissed by a judge of the Federal Circuit Court of Australia (Division 2). An appeal to this Court was upheld in 2023: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384. It was determined that there had been a failure to afford procedural fairness in the Circuit Court. The matter was remitted to the Circuit Court, now known as the Federal Circuit and Family Court of Australia (Division 2).

2    In November 2023, the application for review was re-heard on remitter. The application was dismissed. A further appeal was brought in this Court. The appellants advance a single ground of appeal to the effect that the primary judge erred in failing to find that the Tribunal denied them procedural fairness by failing to accord them an opportunity to comment on whether they had colluded during the hearing. The primary judge was said to have erred in concluding that the Tribunal did not make a finding that there had been collusion between the appellants as to their evidence before the Tribunal.

3    For the following reasons, the appeal should be allowed, the decision of the Tribunal should be set aside and the matter should be remitted for determination according to law.

4    Before the Tribunal, in the course of oral evidence given by one of the appellants (referred to by the Tribunal as Applicant One) he was asked questions about his membership of a student union that formed part of the basis for his claim to protection. In issue was whether he had been a member of the student union. An important issue was whether he attended the relevant educational campus as at the date shown on the membership card that he produced in support of his application.

5    It is common ground that there was break in the course of the oral evidence given by Applicant One. After evidence had been given by Applicant One, the other appellant (referred to by the Tribunal as Applicant Two) gave oral evidence. There was a short pause between the evidence of the two appellants when Applicant One was asked to go and bring Applicant Two into the Tribunal hearing.

6    The transcript of the Tribunal hearing shows the following matters that are of relevance for present purposes. Applicant One gave evidence that he formally got his membership of the student union in 2006. When Applicant One gave that evidence, the Tribunal member asked:

But why, I don't understand why you would get your formal membership in 2006 when you were no longer a student but rather, um, working hard, going to very remote places as you told me.

7    Applicant One gave the following answer:

I haven't mentioned in the form but at that time, at that time I used to do part-time study because of my, uh, family economic situation, I have to work but it doesn't mean that I didn't study. Uh, you know, working time I also used to do part-time study, that's, that's why I got the membership.

8    Applicant One then gave evidence as to the sequence of his education. The Tribunal member then challenged the evidence by saying that the Tribunal member did not recall Applicant One providing those educational details in his visa application. Applicant One then gave the following evidence:

Yeah, I haven't mentioned all the certificates of that one because I feel like the, uh, certificate is not necessary when I come in Australia because I was on a dependent visa with my wife so I feel like the certificate is not necessary for me, but if you really need, I can provide it.

9    After this evidence and some further evidence from Applicant One there was a break of about ten minutes. After that, further questions were asked of Applicant One. Then the Tribunal member said:

Thank you. I do need to speak to your wife. Would you mind going and getting her and I'll get you in again later at the end, please.

10    Applicant Two then gave evidence. She referred to meeting her husband (Applicant One) when he was conducting a program at the secondary school that she attended. Applicant Two was then asked details about her schooling and the way her relationship with Applicant One developed.

11    Later in her evidence she was asked about concerns that the Tribunal member had with her claims. The Tribunal member referred to her studying and the student union documents saying that Applicant One joined the student union in 2006. The Tribunal member then asked questions about concerns as to whether the student union documents produced to the Tribunal were genuine.

12    In its reasons, the Tribunal made the following findings concerning the evidence given by Applicant Two (paras 109 and 110):

The Tribunal finds that her finishing school in March/April 2006 is inconsistent with Applicant One's [student union] membership card dated 10 April 2006. They could not have met through his activities in her school if she had finished before or just after the date he joined and began undertaking those activities. If she had met Applicant One in 2004 or 2005 as she also said at the hearing, that is not consistent with meeting him while he was engaged in an [student union] program in her school, based on his [student union] membership card. In making those findings, the Tribunal has taken into account the various other inconsistent and unsupported versions of Applicant One's evidence about his activities but gives them no weight.

When the Tribunal queried how Applicant One met her when he was working, according to the employer's reference, Applicant Two said that he had been studying part-time. The Tribunal notes that the break in the hearing had occurred before Applicant Two gave her evidence which provided an opportunity for the applicants to speak to each other. The explanation that Applicant One was studying part-time in 2006, is inconsistent with the documents the applicants provided about Applicant One's education and his employer reference. There is no document supporting that claim. The Tribunal finds that the part-time study explanation was given to overcome an obvious difficulty in the evidence.

(emphasis added)

13    The key finding for present purposes is the highlighted sentence. As to that sentence, the primary judge made the following findings (at [107]-[108], referring to the Tribunal as the AAT):

I reject any interpretation that the wording…denotes that the AAT made a finding that the applicants colluded with each other. I do not accept that the AAT made any finding that the applicants 'got their heads together'. If the AAT did not make such a finding, there can be no lack of procedural fairness if such a matter had not been put to the applicants.

The finding, made by the AAT, was that the 'part-time study' explanation was not true and was given to overcome a difficulty in the evidence. That much is very clear by what the AAT said…. I do not accept that there is any obligation upon the AAT to have put this to either applicant, however, the transcript is clear that the AAT made it known to both applicants that the timing of the new claim of 'part-time study' was an issue for it. And, most importantly, it did give both applicants an opportunity to be heard on that aspect.

14    Earlier, the primary judge had described the contentious sentence as 'simply acknowledging that the applicants had the opportunity to speak to each other but did not conclude that they actually did speak to each other' (at [91]).

15    On the appeal to this Court, the sole issue is whether the primary judge was in error in concluding that the Tribunal made no finding of collusion between Applicant One and Applicant Two. Despite the context in which the key sentence appeared in the reasons, the submission for the Minister was to the effect that there was nothing to suggest that the sentence was a factual finding on a material question of fact. It was said that the primary judge was correct to describe the sentence as a record of what happened without making a finding. No persuasive submission was advanced as to what the purpose might be of including such a record of what happened in the middle of reasoning as to why the credibility of the account of Applicant Two was not accepted. It is the case that other points were being made as to why the credibility of the account by Applicant Two should not be accepted. However, that does not mean that concerns as to collusion were not also part of the reasoning.

16    It was suggested that the Tribunal had adopted the same form of simply narrating what had happened when it reasoned as follows at para 79 (when considering the evidence of Applicant One):

Later at the hearing, after a break, Applicant One said that the neighbour was also a relative through his paternal grandfather and wants to kill Applicant One.

17    However, that statement was also part of a series of adverse findings about the credibility of the account given by Applicant One. In my view, the reference to the statement being made after a break was to indicate that the answer was one formulated after Applicant One had time to come up with an answer to deal with an issue that had been raised with his evidence. It is not a mere recital of events. It provides further support for the Tribunal's view that there was significance for what occurred in breaks for the credibility of the accounts being given.

18    On the previous appeal to this Court when the same passage in the reasons of the Tribunal was considered, Feutrill J reached the following conclusion at [41]:

It is evident from the Tribunal's reasons that it had rejected the evidence of the first appellant that he had been a part-time student in 2006 due to various inconsistencies in his evidence. When the second appellant was questioned about various inconsistencies in her evidence, she also gave evidence to the effect that the first appellant had been studying part-time in 2006. In para [110], the Tribunal's reason for rejecting that evidence is partly due to inconsistency with documents and the absence of documents supporting that claim. It is also, in part, based on an imputation, in effect, that the first appellant and second appellant had colluded in a break between the first and second appellants providing evidence to the Tribunal.

19    I agree entirely.

20    Neither the course of the process before the Minister's delegate nor the nature of the review process before the Tribunal would have indicated that there was an issue as to whether the appellants should not be believed as to their accounts on the basis that they had colluded as to their evidence in the course of the proceedings before the Tribunal. It was an issue of significance because it bore upon whether the Tribunal accepted the account given by the appellants as to the foundation for their claim to protection. It is not possible to reach any conclusion as to the extent to which the Tribunal's concerns about collusion between the appellants during the break in the Tribunal proceedings as to their evidence to the Tribunal infected other findings. It was procedurally unfair not to raise the issue with the appellants: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.

21    It follows that the alleged error by the primary judge has been established and the appeal must be allowed.

22    As to costs, each party submitted that, as to the appeal, the appropriate order was that the unsuccessful party pay the costs of the successful party costs by fixed in the amount of $5,000. Counsel for the appellants was not in a position to make submissions as to the costs below. In the ordinary course, the appropriate order would be for those costs to follow the success on the appeal. However, in the circumstances, I will reserve liberty to apply as to those costs.

Associate:

Dated:    16 July 2026