Federal Court of Australia

FBU20 v Minister for Immigration and Citizenship [2026] FCA 1076

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal, fixed in the amount of $4,200.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    The first appellant, FBU20, is the husband of the second appellant, FBT20. They both appeal against a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA): FBU20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 523. The primary judge dismissed their application for judicial review of a decision that had been made by the Administrative Appeals Tribunal (Tribunal) on 6 November 2020: 2007571 (Refugee) [2020] AATA 5123. The Tribunal had affirmed a decision of a delegate of the predecessor of the first respondent, the Minister for Immigration and Citizenship (Minister), refusing to grant FBU20 and FBT20 Protection (Class XA) (Subclass 866) visas.

2    The appellants’ notice of appeal identifies three grounds of appeal, which are to the following effect:

(1)    The primary judge erred in finding that the Tribunal’s rejection of FBU20’s claim of a secret marriage was legally reasonable. The Tribunal’s reasoning lacked an intelligible justification and did not properly consider FBU20’s explanations and cultural context.

(2)    The primary judge failed to find that the Tribunal’s reliance on generalised country information over specific personal evidence (photos, marriage certificate, and family dynamics) was legally unreasonable or irrational.

(3)    The primary judge erred in concluding that the Tribunal applied the correct legal test under s 36(2)(a) and (aa) of the Migration Act 1958 (Cth). The Tribunal improperly assessed FBU20’s fear of harm as speculative and failed to account for the risk of mental and financial harm upon return to Bangladesh.

3    The appellants did not file written submissions in support of their appeal, but FBU20 appeared at the final hearing and made oral submissions on behalf of the appellants.

4    For the reasons that follow, FBU20 and FBT20 have not demonstrated any error in the judgment of the primary judge. Nor have they established any jurisdictional error in the decision of the Tribunal. Consequently, the appeal must be dismissed with costs.

Factual background

5    FBU20 and FBT20 are both citizens of Bangladesh. On 18 July 2012, FBU20 first arrived in Australia on a student visa. He studied a Master of Commerce in Australia with the financial support of his sister’s husband (FBU20’s brother-in-law). FBU20 returned to Bangladesh on several occasions between 2013 and 2016, including in June 2013, when he married FBT20 at the home of FBT20’s father (FBU20’s father-in-law) in Bangladesh. FBT20 came to Australia in April 2014 as the dependent spouse of FBU20. FBU20 and FBT20 were later granted further student visas. In 2016, they were granted Temporary Skilled Provision (Subclass 485) visas.

6    On 7 February 2018, the day before the temporary skilled visa which he then held was to expire, FBU20 made an application for a protection visa. FBT20 was included as the secondary applicant in FBU20’s protection visa application, on the basis that she was a member of the same family unit as FBU20, under s 36(2)(b) of the Migration Act. She did not advance any protection claims of her own.

7    FBU20 claimed that he had sought permission from his father-in-law, FBT20’s father, to marry FBT20. FBU20’s father-in-law had eventually agreed to the marriage on the condition that FBU20 take FBT20 to Australia, that he pay a mahr (a financial gift given by the groom to the bride in an Islamic marriage) of 50 million Bangladeshi Taka (BDT) (equivalent to around AUD $84,000), and that he convince his own parents to accept the marriage after the event. Photographs of the wedding of FBU20 and FBT20, depicting them in traditional dress, were produced by FBU20 in support of the protection visa application. These photographs had also been produced by FBT20 in support of her earlier application for another visa.

8    In support of his application for a protection visa, FBU20 claimed that his marriage to FBT20 had been kept a secret from his own family, including his parents and his brother-in-law, who disapproved of his relationship with FBT20. In November 2017, FBU20 claimed, his brother-in-law found out about the marriage, became upset, stopped providing FBU20 with financial assistance, and told FBU20 that he should not return to Bangladesh. FBU20 claimed that, once his father-in-law became aware that FBU20’s family had found out about the marriage, he threatened FBU20 that if he were to return to Bangladesh, his father-in-law would force FBT20 to separate from FBU20; would force FBU20 to pay 50 million BDT and commence legal proceedings against him if he could not pay; and would make life very difficult for FBU20 by ensuring that he would not be able to make a living in Bangladesh. FBU20 claimed that his father-in-law is a well-known politician in the government of Bangladesh, but later explained that he was not a politician but worked for the local government. FBU20 did not claim that he would be subjected to physical harm, but asserted that he would suffer “mental torture and anguish”.

Relevant legislative provisions

9    In considering the appellants’ applications for protection visas, the Minister’s delegate (and, on review, the Tribunal) was bound to grant each of them a visa if satisfied that the criteria for the grant of the visa were met, and that the grant of the visa was not prevented by other provisions of the Migration Act. Otherwise, the delegate or Tribunal was required to refuse to grant the visa: Migration Act, s 65.

10    Section 36 of the Migration Act sets out the main criteria for a protection visa. Relevantly, among other things, an applicant for a protection visa must satisfy at least one of the criteria in s 36(2), which is as follows:

36 Protection visas – criteria provided for by this Act

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

(b)    a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i)    is mentioned in paragraph (aa); and

(ii)    holds a protection visa of the same class as that applied for by the applicant.

11    For the purposes of the Migration Act, and s 36(2)(a) in particular, s 5H provides that a person in Australia is a refugee if (relevantly) the person “is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”. The meaning of “well-founded fear of persecution” is set out in s 5J of the Migration Act, which provides, in part:

5J Meaning of well‑founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

…

(4)    If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)    the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

…

The decision of the Tribunal

12    The Tribunal accepted (at [35] of its reasons) that FBU20 married FBT20 in Bangladesh in June 2013. Based on evidence given by FBU20 before the Tribunal, the Tribunal found (at [37]) that neither he nor FBT20 had been threatened with physical harm by FBU20’s father-in-law or his own family.

13    The Tribunal found (at [37]) that “the essential or significant reason for [FBU20’s] fear of persecution in Bangladesh is because of a personal family dispute with his father-in-law over the circumstances surrounding his marriage” and that FBU20 “does not fear persecution in Bangladesh for any of the reasons in s 5J(1)(a) of the [Migration Act]”.

14    The Tribunal proceeded to consider the credibility of the factual claims made by FBU20 (at [38]-[47]). The Tribunal did not find FBU20’s evidence about the circumstances of his marriage to be credible. It did not accept that he took part in a secret Islamic marriage that was only attended by FBT20’s family and without the knowledge of FBU20’s parents. The Tribunal found it “unusual” that FBU20 would arrange a secret marriage in Bangladesh without even trying to obtain his parents’ consent to the marriage. It found that FBU20’s explanation for this – that he was influenced by his brother-in-law’s views, and that his parents were old – was not persuasive or credible. The Tribunal also considered this inconsistent with country information which suggested that parents’ consent was important even in the context of a “love marriage” that was not arranged by the family.

15    The Tribunal found it “unusual” that FBU20’s father-in-law would consent to a secret marriage in circumstances where FBU20’s parents had no knowledge of the relationship and did not consent to the marriage (at [40]). This was considered inconsistent with country information that Islamic marriages would usually be declared publicly and never undertaken in secret. The Tribunal also thought it “unusual” that FBU20’s father-in-law would demand such a large mahr from FBU20 when he was still studying in Australia, had no employment or assets, and did not have his parents’ consent to the marriage (at [41]). The Tribunal further considered it “unusual” that FBU20’s father-in-law would give his consent to the marriage on condition that FBU20 was to convince his parents to accept the marriage after the event, and noted that FBU20 gave no evidence of any efforts to convince his parents to consent to the marriage (at [42]).

16    The Tribunal then said (at [43]-[45]):

Importantly, the Tribunal finds [FBU20’s] evidence about the father-in-law’s angry reaction to the news of the marriage and that his parents had not given their consent unusual, inconsistent and lacking in credibility. The Tribunal does not find it consistent that the father-in-law would be angered in 2017 that [FBU20’s] parents had not consented to the marriage in circumstances where both the applicants returned to Bangladesh in 2015 and lived separately and kept the marriage a secret and [FBT20’s] father took no issue with this at the time.

In assessing the credibility of the applicants’ claims for protection the Tribunal has also had regard to the timing and delay of the protection visa application. The applicants married in June 2013 and have been living together in Australia since April 2014 on temporary visas. They have now been married for over seven years. According to [FBU20’s] evidence his parents found out about his marriage in November 2017 and this caused the conflict with the father-in-law. The Tribunal notes that the applicants did not apply for protection until 7 February 2018, the day before the Temporary Skilled Provisional visa expired. When the Tribunal raised its concerns with [FBU20] at the hearing [FBU20] said he was hopeful to get a business sponsorship so that he could remain in Australia but did not have enough money to apply for the business visa at the time. He obtained migration advice and applied for protection. The Tribunal asked [FBU20] if he applied for the protection visa because he feared harm in Bangladesh or because he wanted to remain in Australia. [FBU20] said he wanted to remain in Australia for both reasons. He is still hopeful that he will get business sponsorship.

In conclusion, the Tribunal has had regard to the inconsistencies in the evidence, the unusual nature of the agreement with the father-in-law and the timing of the protection visa application and finds that [FBU20] has manufactured his evidence about the family dispute so that he can remain in Australia.

17    Two other aspects of the Tribunal’s reasons should be noted. First, in the course of describing the proceedings before the Tribunal and the evidence given by FBU20, the Tribunal (at [24]) referred to photographs produced by FBU20, saying:

[FBU20] provided photographs depicting both of them [ie, the appellants] on the day of their wedding in traditional clothing and a photo of [FBT20] with her parents taken on the day before the wedding “gave holoud”. The Tribunal notes that according to the delegate’s decision when [FBT20] applied for a visa to travel to Australia, she provided wedding photographs depicting a traditional wedding with a number of guests. [FBU20] said it was a small religious celebration held in the father-in-law’s home. The Tribunal finds it unusual that [FBU20] would have photos of the wedding if he wanted to keep it secret.

18    Secondly, FBU20 provided a letter of support from his employer in Australia, which referred to FBU20’s marriage being kept secret. However, the Tribunal said that it gave this letter “little weight” for reasons which it explained at [31] of its reasons:

[FBU20] also provided a reference letter from [Mr A], his employer in Australia. The Tribunal has considered the letter and notes that [FBU20] is highly regarded by his Australian employee. The employer claims to know about the secret circumstances of his marriage. He wrote “… [FBU20] explained to me the complexities and challenges that faced him back in his former home in Bangladesh because of the choices that he and his wife had made. At this point the marriage was still being kept from their respective families several years later.” The Tribunal finds the information provided by [Mr A] is inconsistent with [FBU20’s] evidence that his father-in-law knew about the relationship, gave his consent to the marriage and paid for the wedding. The Tribunal has considered the letter but given this information little weight.

19    The Tribunal concluded (at [46]-[47]) that it was not satisfied that, if FBU20 returned to Bangladesh, he would face serious harm from his father-in-law or any other person because he married FBT20 in secret and without his parents’ consent. The Tribunal found that FBU20’s fear of persecution was not well-founded, and that it was not satisfied that he was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act.

20    The Tribunal then went on to consider the alternative “complementary protection” criterion in s 36(2)(aa) of the Migration Act. Referring to the factual findings it had already made, the Tribunal explained (at [49]-[51]) that it did not accept that there was a real risk that FBU20 would suffer significant harm because of the circumstances of his marriage to FBT20, and was not satisfied that he was a person in respect of whom Australia has protection obligations under s 36(2)(aa). It also followed that FBT20 did not satisfy the criterion in s 36(2) of the Migration Act, based on her being a member of the same family unit as FBU20.

The decision of the primary judge

21    In the FCFCOA, the appellants advanced six grounds of judicial review. After considering each of the grounds, the primary judge found that the appellants had not demonstrated any jurisdictional error in the decision of the Tribunal. In particular, the primary judge held that:

(a)    the Tribunal had correctly applied the criteria set out in s 36(2)(a) and (aa) of the Migration Act, asking itself whether there was a “real chance” of FBU20 facing serious harm, or a “real risk” of FBU20 facing significant harm, were he to return to Bangladesh, and that the Tribunal’s rejection of FBU20’s protection claims was based on adverse credibility findings rather than an incorrect understanding of the legal test to be applied (at [44]-[45], [47]);

(b)    the Tribunal properly understood and considered the evidence about the marriage between FBU20 and FBT20, including who attended and from whom FBU20 claimed to have kept it secret, and it was open to the Tribunal to find that it was unusual to have photographs of a wedding purportedly carried out in secret (at [54]);

(c)    the appellants’ grounds of review concerning the mahr arrangement and their family circumstances amounted to no more than further explanations of the claim, and did not identify any jurisdictional error (at [57]-[59]); and

(d)    the Tribunal’s broader findings about the appellants’ desire to remain in Australia were rational, open on the evidence and legally reasonable, and the appellants’ submissions with respect to them rose no higher than a disagreement with the Tribunal’s findings (at [60]-[64]).

Ground 1 – legal unreasonableness in rejecting claim of secret marriage

22    By their first ground of appeal, the appellants contend that the primary judge erred in finding that the Tribunal’s rejection of FBU20’s claim of a secret marriage was not affected by legal unreasonableness. They contend that the Tribunal’s reasoning lacked an intelligible justification and “did not properly consider [FBU20’s] explanations and cultural context”. In oral submissions, FBU20 further submitted that the Tribunal had erred by failing to verify his account of the marriage by contacting his family members, friends and employer.

23    I agree with the observations of the primary judge (at [53]) that “the Tribunal carefully undertook its task in understanding and considering the [appellants’] evidence” and that the Tribunal “considered at length and in detail the [appellants’] claims in respect of the alleged secrecy of their marriage”. As is apparent from the summary of its reasons above, in deciding to reject FBU20’s account of the circumstances of his marriage to FBT20, the Tribunal relied on several considerations in combination.

24    In the course of its reasons, the Tribunal referred to several features of the account given by FBU20 which it regarded as “unusual”. One of those was the fact that FBU20 had photographs of a wedding that was to be kept secret. This might have been thought to be one of the less central considerations referred to by the Tribunal (perhaps reflected in the fact that the Tribunal only referred to it in the course of discussion of the evidence, and did not explicitly reference it in that part of its reasons in which it explained why it rejected FBU20’s claim). However, it was not irrational or legally unreasonable for the Tribunal to regard that as an “unusual” feature of FBU20’s account. Nor was it irrational or unreasonable to take that view into account as one of several matters bearing on the Tribunal’s unfavourable assessment of FBU20’s evidence.

25    The Tribunal’s conclusion was reached after weighing the various features of the account which it considered as “unusual”, as well as the country information and the timing and circumstances of the lodging of the protection visa application. As the Minister submits, the Tribunal was under no obligation to investigate FBU20’s claims further, by attempting to contact people who might have been able to corroborate FBU20’s account, but from whom FBU20 had not adduced evidence. In those circumstances, the conclusions reached by the Tribunal were not irrational or legally unreasonable.

26    FBU20 takes issue with the Tribunal’s finding that it was “not consistent” for FBU20’s father-in-law to have become angered in 2017, given that the appellants had “returned to Bangladesh in 2015 and lived separately and kept the marriage a secret and [FBT20’s] father took no issue with this at the time”. He submits that this finding was irrational because, when they returned to Bangladesh in 2015, the marriage was still secret and he and FBT20 visited their respective families separately. FBU20 also criticises the Tribunal’s finding that his employer’s letter was inconsistent with his evidence. He submits that his employer, in referring to the marriage “still being kept from their respective families several years later”, was repeating what FBU20 had told him, and that FBU20 was saying that the marriage had been kept secret from FBU20’s family and FBT20’s extended family, not that it was secret from FBT20’s own parents. However, the Tribunal was entitled to assess the evidence relied on by FBU20, including as to its apparent consistency with other evidence, and was not under any obligation to speak with his employer. The matters the subject of these two criticisms were matters for the Tribunal to consider and decide, and these arguments merely amount to disagreement with the merits or correctness of the Tribunal’s reasons and findings.

27    FBU20 also identifies that the Tribunal, at [25] of its reasons, referred to FBU20’s brother-in-law telling FBU20 that he had found out about the marriage in November 2011. However, this would make no sense, given that the marriage did not take place until 2013. It is clear, on a fair reading of the Tribunal’s reasons, and as FBU20 himself properly accepted in the course of oral argument, that this was a typographical error and that the Tribunal had intended to refer to FBU20’s evidence about what he said had happened in 2017. This was not a jurisdictional error.

28    The Tribunal’s rejection of FBU20’s claims about the circumstances of his marriage had an “evident and intelligible justification”, as explained in the Tribunal’s reasons: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at 367 [76] (Hayne, Kiefel and Bell JJ). “[I]t is only a truly unsupportable departure from the standards of rationality and logic that will justify a conclusion of jurisdictional error”: D J Reynolds, The Law of Fact Finding (Lawbook Co, 2026) at p 216 [10.190]. The Tribunal’s reasoning process involved no such departure. It was open to the Tribunal to engage in the reasoning in which it engaged, and to make the findings it made on the material before it: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at 648 [133] (Crennan and Bell JJ).

29    For these reasons, the first ground of appeal should not be upheld.

Ground 2 – legal unreasonableness in reliance on generalised country information

30    By the second ground of appeal, the appellants claim that the primary judge erred in failing to find that the Tribunal’s “reliance on generalised country information over specific personal evidence (photos, marriage certificate, and family dynamics)” was legally unreasonable or irrational.

31    The Tribunal did not simply rely on country information in preference to specific personal evidence. Rather, a fairer characterisation is that the Tribunal had regard to certain aspects of the country information before it, as well as certain common sense considerations, in assessing the claims made by the appellants and the evidence given by FBU20. In this case, by way of background informing its assessment of FBU20’s claims, the Tribunal indicated that it had regard to a country information report prepared by the Immigration and Refugee Board of Canada, in relation to practices with respect to arranged and “free choice” or “love” marriages in Bangladesh, and to information from two other sources about the requirements and ceremonial customs applicable to Islamic marriages.

32    The Tribunal had regard to country information which indicated that, in Bangladesh, parental consent is an important aspect of an Islamic marriage, and that marriages usually have to be declared publicly. This information was considered in the context of FBU20’s explanation that he had not sought his parents’ consent because he was influenced by his brother-in-law’s views and because his parents were old. The Tribunal did not accept that to be a credible explanation for his not attempting to seek his parents’ consent. The country information also suggested to the Tribunal that it was “unusual” that FBU20’s father-in-law would consent to a secret marriage occurring without the knowledge or consent of FBU20’s parents. It was open to the Tribunal to take into account the country information in the ways that it did, together with other considerations, in assessing and forming a view about the credibility of FBU20’s account of the circumstances of his marriage.

33    FBU20 submits that parts of the country information to which the Tribunal referred were expressed to relate to urban areas in Bangladesh, and that it was inappropriate for the Tribunal to have regard to it in assessing his claims, given that he was from a rural area. It is true that some of the background country information set out by the Tribunal distinguished between marriage practices in urban and rural areas, but the information on which the Tribunal seems to have relied in particular (described but not quoted at [34] of its reasons) in assessing FBU20’s submissions referred to “certain things that are basic to all Muslim marriages”, including that they “have to be declared publicly” and “should never be undertaken in secret”. I do not think the reasons of the Tribunal demonstrate that its reasoning was based on a misunderstanding of those parts of the country information which were expressed to describe the situation in urban areas. While FBU20 submits that the Tribunal should have gathered a wider range of sources of country information, it is generally up to the Tribunal to decide for itself which country information it considers, and the weight it attributes to such information in the assessment of the evidence before it, including in relation to the credibility of the claims and evidence of a protection visa applicant: see, eg, NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. I do not understand FBU20 to submit that he advanced other specific country information before the Tribunal which was not considered, and the Tribunal was under no obligation to obtain or consider alternative information.

34    It was the task of the Tribunal to make factual findings, including by reference to country information where it thought appropriate. This Court, on appeal from a decision on an application for judicial review, cannot substitute its own view as to the use of country information or the merits of the factual claims advanced by FBU20. The Tribunal’s reliance on country information was not such as to amount to legal unreasonableness or irrationality, and does not suggest any jurisdictional error. For these reasons, the second ground of appeal should not be upheld.

Ground 3 – application of the wrong legal test relating to fear of harm

35    By the third ground of appeal, the appellants contend that the primary judge erred in failing to find that the Tribunal applied the wrong legal test in relation to the application of s 36(2)(a) and (aa) of the Migration Act. I understand the argument to be that the Tribunal applied too high a threshold, requiring not just that FBU20 establish that he would face a “real chance of serious harm” if he returned to Bangladesh but that he demonstrate that such harm was certain, inevitable or guaranteed, or that the Tribunal considered only the risk of physical harm and failed to have regard to FBU20’s claims that he would suffer financial loss and “mental anguish” if he returned to Bangladesh.

36    The primary judge addressed the relevant ground of judicial review before him in terms which included the following (at [44]-[45]):

In the Court’s view, the Tribunal correctly recognised the test for the refugee criterion, being whether there is a real chance of an applicant facing serious harm, and for the complementary protection criterion, being whether there is a real risk of an applicant facing significant harm. The Tribunal in this matter correctly cited the relevant provisions of the Act and used the correct terminology throughout (see in particular at [2]-[6], [46]-[47] and [50]-[53]). The Tribunal also explained to the applicants that it was required to assess their claims for protection by looking to the reasonably foreseeable future if the applicants were returned to Bangladesh. There was no error in this approach.

It is also not the case that the Tribunal took the approach [FBU20] said it did. The Tribunal did not at any point say that the applicant needed to establish that harm was inevitable or guaranteed. Nothing in the Tribunal’s approach indicates that this was the manner in which it approached its task. To the contrary, the decision represents an orthodox application of the appropriate statutory test to [FBU20’s] claims.

37    I agree with the primary judge’s assessment of the Tribunal’s reasons. The Tribunal repeatedly referred to the expressions used in the relevant provisions of the Migration Act and, in particular, identified the assessment it was required to make as being whether FBU20 faced a “real chance” of serious harm or a “real risk” of significant harm.

38    The Tribunal rejected the central factual premise of FBU20’s claim. It did not accept his evidence that the marriage between FBU20 and FBT20 was kept secret from FBU20’s family, for a combination of reasons which were cogently explained. It did not accept that FBU20’s father-in-law disapproved of the marriage. Consequently, it did not accept that any adverse consequences would follow for FBU20 because of the circumstances of his marriage. There is nothing about the way the Tribunal expressed its reasons to suggest that it harboured doubts about its factual conclusions, such that it would be required to ask itself what the situation would be if it were wrong: cf Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. There is nothing about the way the Tribunal expressed itself which suggests that it misunderstood what is required by s 36(2)(a) or (aa) of the Migration Act.

39    The Tribunal was aware of the claims that FBU20 would suffer financial consequences if he returned to Bangladesh; his (somewhat speculative) claim that his father-in-law would sue him for the mahr and that, being unable to pay, he would be imprisoned; and his claim that he would suffer “mental torture and anguish” as a result of the anticipated actions of his father-in-law. It is clear from the Tribunal’s reasons that it was aware of these claims. The Tribunal’s finding that it did not accept FBU20’s central claims, that the marriage had been kept secret from his family and that his father-in-law had later come to disapprove of the marriage, meant that there was no need for the Tribunal to give further specific consideration to these particular consequences that FBU20 had claimed might follow if he returned to Bangladesh.

40    FBU20 submits that the Tribunal was still required to consider his claim that he could suffer harm as a result of his failure to pay the mahr, including imprisonment if he were sued by his father-in-law for the mahr and was unable to pay (as he said he would be), and that it failed to do so. He submits that that claim did not depend on the Tribunal’s acceptance that the marriage was secret, and instead arose from the fact that an enforceable mahr was payable, had not been paid, and could not be paid by him. However, the claim critically depended not only on FBU20’s evidence that a substantial mahr was payable, and remained unpaid, but also on the claim that FBU20’s father-in-law now disapproved of his marriage, such that he would take steps to enforce the mahr, including by seeking to have FBU20 imprisoned for not paying it. The only basis on which it was claimed that FBU20’s father-in-law would take such action was that FBU20 had married FBT20 in secret and without his parents’ consent. That claim was addressed by the Tribunal.

41    The manner in which the Tribunal approached the application of s 36(2)(a) and (aa) of the Migration Act does not reveal jurisdictional error. The appellants’ third ground of appeal should not be upheld.

Conclusion

42    For the reasons given above, the appellants have not established any error in the decision of the primary judge, or any jurisdictional error affecting the decision of the Tribunal. The appeal must be dismissed.

43    The Minister seeks an order that the appellants pay his costs of the appeal, fixed in the amount of $4,200. Since the appeal has been unsuccessful, it is appropriate that the appellants pay the Minister’s costs. Rule 40.43 of the Federal Court Rules 2011 (Cth) provides that, on an appeal of this kind, if a party obtains an order for costs, the party is entitled to costs as set out in item 15 of Sch 3 to the Federal Court Rules 2011 (Cth). The amount of costs sought by the Minister is substantially less than the amount specified in item 15.3, which may be claimed if an appeal or application is dismissed after a hearing. At the hearing, the Minister confirmed that his actual costs of defending the appeal exceed the amount sought from the appellants. FBU20 does not oppose the fixing of costs in the amount of $4,200 in the event that the appeal is to be dismissed. In the circumstances, I am satisfied that it is appropriate to make a lump sum costs order as sought by the Minister.

Associate:

Dated:    5 August 2026