Federal Court of Australia

AQX20 v Minister for Immigration and Citizenship [2026] FCA 1159

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2.    The name of the Second Respondent is amended to “Administrative Review Tribunal”.

3.    The appeal is dismissed.

4.    The Appellants are to pay the First Respondent’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA): AQX20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 264 (J). The primary judge dismissed an application for review of a decision of the former Administrative Appeals Tribunal, which affirmed a decision not to grant the Appellants protection visas.

2    The appeal should be dismissed, essentially for the reasons given by the primary judge.

background

3    Arrival in Australia (Feb, Sep 2014): The Appellants are citizens of Pakistan. The First and Second Appellants are husband and wife, and the Third and Fourth Appellants are their children. The First Appellant was granted a student visa in January 2014 while he was in Pakistan. He arrived in Australia on the student visa in February 2014, and his family joined him in September 2014 as members of his family unit.

4    Application for protection visa (Jun 2015): In October 2014, the Department was advised that the First Appellant did not re-enrol. On 11 June 2015, he applied for a protection visa, with the other Appellants applying as family members. On 17 June 2016, the Department informed the First Appellant that this application was invalid, because he had not paid the necessary charge.

5    On 23 June 2015, the First Appellant re-applied for a protection visa, again with the other Appellants applying for visas as his family members. The First Appellant claimed to fear harm if returned to Pakistan on the basis that he is a Shia Muslim and because, while he was a bank employee, he exposed corrupt activities of certain employees at the bank and was then threatened by them (J [1]). He was interviewed by a delegate on 14 October 2015.

6    Delegate refuses application (Aug 2016): On 2 August 2016, a delegate of the Minister refused the application for protection visas.

    The delegate found that the First Appellant’s claims based on his religion were not credible and were manufactured for the purpose of his protection visa application.

    The delegate found that the First Appellant’s whistleblower claims (based on his employment at a bank) were not credible. The First Appellant’s evidence of the consequences of his disclosure was vague and general, and the delegate did not accept that, if the First Appellant had uncovered corrupt activities in early 2013, that he would have remained in the workplace until his resignation in November 2013, and would not have been assaulted until December 2013.

7    Application to AAT (Aug 2016): On 15 August 2016, the Appellants applied to the Tribunal for merits review of the delegate’s decision. On 6 December 2019, the Appellants appeared before the Tribunal, with the assistance of a migration agent and an interpreter (J [5]). The First Appellant elected to communicate with the Tribunal in English, and he only used the interpreter when he thought that was necessary.

8    AAT confirms refusal decision (Jan 2020): On 6 January 2020, the Tribunal affirmed the delegate’s decision not to grant the Appellants protection visas (J [2]). The relevant parts of its reasons for the purposes of this appeal are as follows. The Appellants challenge the finding in AAT [52] (set out in [10](d) below).

9    Tribunal’s credibility concerns: The Tribunal summarised the First Appellant’s evidence at the hearing (Tribunal reasons (AAT) [10]-[46]), then set out the following credibility concerns about the First Appellant’s evidence:

    inconsistent evidence about the First Appellant’s employment at the bank and exposing corruption (AAT [47]-[71]);

    omission of significant claims from the First Appellant’s written statement (AAT [72]-[73]);

    inconsistent evidence about the First Appellant’s report to the police (AAT [74]-[78]);

    omission of important claims from the lawyer’s letter submitted by the First Appellant (AAT [79]-[82]); and

    highly improbable aspects of the First Appellant’s account (AAT [83]-[91]).

10    The important credibility concern for this appeal is the first one; namely, the First Appellant’s inconsistent evidence about when he was working at a bank and when he exposed corruption by other people working there. The Tribunal set out the differences between the First Appellant’s oral evidence to the Tribunal and the information he had previously given on this point.

(a)    The First Appellant’s written statement dated 22 June 2015 stated that he worked at a bank in Islamabad, and in 2012 was promoted to team leader in the recovery department. He stated that he started getting undue demands from three people (referred to as CC, BB and AA). He stated that he reported this behaviour in the beginning of 2013, and as a result AA and BB were dismissed from employment. The First Appellant stated that he recorded a conversation with CC on his mobile phone (where CC asked the Appellant to deposit money into CC’s personal account) in about November 2013. The First Appellant reported this conversation to a Mr Khan (referred to as EE), and CC was sacked in November (AAT [47]-[48]).

(b)    According to the First Appellant’s written statement, he was still working at the bank in November 2013 when he recorded a telephone conversation with CC, and CC was dismissed from his employment in November 2013. The Tribunal put to the First Appellant that this was inconsistent with his evidence to the Tribunal that his telephone conversation with CC took place in September 2012, that the First Appellant reported this conversation to EE in early February 2013, and the First Appellant left his employment with the bank in mid-February 2013 (AAT [49]).

(c)    In response, the First Appellant repeated the account that he gave to the Tribunal, and said that the account he gave in his written statement was wrong. He said that he was in a bad mental state when he made the statement, and that he believed that the lawyer who assisted him had made mistakes (AAT [50]). The Tribunal did not accept these explanations: the timing of the request made to him to deposit money into CC’s personal account, when he disclosed that to EE, and at what point the First Appellant left his employment at the bank were “crucial events in his account”. The Tribunal stated that the First Appellant had given a “strikingly inconsistent account of these matters”, and that reflected poorly on his credibility (AAT [51]).

(d)    The Tribunal then referred to the First Appellant’s evidence on this point in his interview with a delegate. The Tribunal states (AAT [52], emphasis added):

When interviewed by the delegate, the applicant also said that in November 2013 he was still working at the bank and, at that time, CC told him to deposit money into his personal account, a conversation the applicant recorded and, one week later, he informed EE about that. To the delegate, he said that it was one week after that when CC was dismissed from employment.

The Tribunal put to the First Appellant that his evidence to the delegate was inconsistent with his account to the Tribunal that in 2012, he was asked to deposit money into the account of CC and recorded a conversation with CC about that; in February 2013 he informed EE of that; and, in that same month, the First Appellant left his employment with the bank (AAT [52]).

(e)    In response, the First Appellant stated that the account he gave the Tribunal was correct, and he was in a bad and troubled state when he applied for protection. The Tribunal rejected that explanation, and considered it should have been straightforward for the First Appellant to give a consistent account as to when he stopped working for the bank and when he recorded and disclosed a conversation in which he was asked to undertake wrongdoing (AAT [53]).

(f)    Further, the First Appellant’s evidence to the Tribunal about his conversations with CC were inconsistent with the evidence he had given to the delegate (AAT [54]-[59]).

(g)    The Tribunal then found that the First Appellant’s evidence in the Tribunal about when he worked at the bank was inconsistent with information about his employment that was included in his protection visa application (which stated that he worked for the bank until October 2013, and did not obtain any other employment before leaving Pakistan in February 2014), and in his earlier student visa application (which stated that in December 2013, the First Appellant was working for a building company in Rawalpindi) (AAT [60]-[64]). The Tribunal stated that the information in the First Appellant’s student visa application “only add[ed] yet another layer of inconsistency to the [First Appellant]’s overall claims about his work for a bank in Pakistan for which he has not accounted” (AAT [67]).

11    The First Appellant provided a statement after the hearing, and submitted further employment documents from a company (AAT [68]-[70]). The AAT found that the post-hearing statement and further documents did not resolve the inconsistencies in the First Appellant’s account, stating (at AAT [71], emphasis added):

The Tribunal is willing to accept that the documents submitted indicate that the applicant was employed by certain companies that appear to have ‘seconded’ him to the bank, his employment ending in February 2013. However, this does not explain why, at his interview with the delegate, the applicant said that he was still working for the bank in November 2013. These documents do not explain why in his written statement of June 2015 the [First Appellant] advanced the same claim. If it was the case that the [First Appellant] resigned from his employment in February 2013, he could easily have given that evidence at those earlier stages. While the [First Appellant] may have provided some of these documents to the delegate after the interview, that still does not explain his failure to say at the interview that in February 2013 he no longer worked for the bank. Accordingly these further submissions and further documents from the [First Appellant] do not resolve the inconsistency in his evidence on this important issue.

12    Findings on credibility: The Tribunal stated that the concerns it held about the First Appellant’s credibility, “considered cumulatively”, led the Tribunal to find that the First Appellant was not a witness of truth and the account of events on which his protection claims are based was false (AAT [92]). Accordingly, the Tribunal disbelieved the First Appellant’s claims about being asked to undertake corrupt activities while employed at a bank in Pakistan, and disbelieved claims about exposing corrupt activities to more senior officers in the bank, and the consequential claims (AAT [93]).

13    Application to FCFCOA (Feb, Jul 2020): On 10 February 2020, the Appellants applied to the FCFCOA for an extension of time to review the decision of the Tribunal. (The application was filed one hour and 12 minutes outside the time limit.) On 10 July 2020, the Appellants filed an amended application for an extension of time. The amended application contained a single ground of review (J [12]):

The Tribunal failed to attain the state of satisfaction required by the applicable law as its reasoning was underpinned by a false premise

Particulars

The Tribunal reasoned that the applicant's evidence to it was not credible as he had told the delegate that he was still employed by the bank in November 2013 when his evidence to the Tribunal was that he resigned in February 2013. The applicant did not tell the delegate that he was employed by the bank in November 2013.

14    Primary judge dismisses application (Feb 2025): On 27 February 2025, the primary judge dismissed the application for review of the Tribunal’s decision. Her Honour held in J [29] that it was open to the Tribunal to find that the First Appellant’s evidence to the delegate was that in November 2013 he was still working at the bank, based on the answers given by the First Appellant to the delegate and the First Appellant’s June 2015 statement.

    Relevantly, the delegate put to the First Appellant that he had recorded CC in November, and then asked how long after the recording did the First Appellant meet with EE (to which the First Appellant replied “[l]ike in one week”). The delegate then asked how long after that meeting was CC sacked (to which the First Appellant replied “I think in six seven days, seven eight days”) (see J [14]). The primary judge held that the First Appellant’s answer to the delegate’s first question (“like in one week”) accepted the assumption of fact in the delegate’s question, being that the First Appellant recorded CC in November. The primary judge considered that the delegate took the year 2013 from the First Appellant’s statement (which stated that he recorded CC in about November 2013). There was no issue that the Appellant recorded CC and met with EE while he was working at the bank (J [29]).

    The Appellants argued before the primary judge that the First Appellant did not expressly say that, “in November 2013”, he was still working at the bank. However, the primary judge held that, on a fair reading, when the Tribunal at AAT [52] used the words “the applicant also said”, the Tribunal was expressing that the First Appellant’s evidence was to the effect that he accepted that in November 2013 he was still working at the bank. And for the reasons given in J [29], there was an evidentiary basis for that finding (J [30]).

15    Notice of appeal (Mar 2025): On 18 March 2025, the Appellants filed a notice of appeal, containing three grounds of appeal. However, the Appellants only press appeal ground 3, which corresponds to the ground of review before the primary judge, set out in [13] above.

consideration

16    Illogical or irrational findings – general principles: The Appellants contend that the Tribunal’s decision is invalid, because there is no basis for the finding in AAT [52] that the First Appellant told the delegate that he was working at the bank in November 2013. An administrative decision may be illogical or irrational (and thus invalid) if there is no probative basis for the decision. That principle is not limited to the ultimate conclusion but includes findings along the way; however, a decision will generally not be invalid if the relevant finding of fact or conclusion (for which there is no probative basis) is immaterial, or not critical to, the ultimate conclusion: see my summary in EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128; (2025) 311 FCR 155 at [35]-[36]; see also Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [33]-[35] (the Court).

17    The Appellants’ argument therefore raises two issues: whether there was any probative basis for the finding in AAT [52] that the First Appellant said to the delegate that he was working for the bank in November 2013; and, if not, whether that finding was a sufficiently critical part of the Tribunal’s reasoning that the decision as a whole is invalid.

18    First Appellant’s interview with the delegate and written statement: The relevant parts of the First Appellant’s evidence in the interview with the delegate are set out in J [14]-[16] as follows (emphasis added):

(a)    At p 56 of the transcript of the interview with the delegate (J [14], emphasis added):

Delegate: Now, how long after you had your meeting with [CC]? Oh, I'm sorry, Mr. Khan [EE]. Did sorry, when was that? When did you have a meeting ... ?

Interpreter (I): with IMRAN

Delegate: in November. Oh, sorry. In November you recorded [CC]. Then how long after the recording, did you make with meeting with Khan? Can you remember the days or ... ?

Applicant: Like in one week.

Delegate: Okay. And then how long after your meeting with him, did was [CC] sacked?

Applicant: I think in six seven days, seven, eight days.`

(b)    At p 59 of the transcript of the interview (J [16]):

Delegate: When did you resign?

Applicant: I have all the documents. What time? When I coming to this whole documents

Interpreter: I have all the copies but I did not bring it here with me. It's back in Pakistan.

Interpreter: They have posted out to me and I was going to bring it along with myself today. So in one or two days, I'll be receiving all those documents.

Delegate: Okay. And did they give you a letter?

Applicant: An experience letter.

Delegate: And what did that say? Can you remember?

Applicant: Like normally.

Interpreter: That is just a standard letter that this person worked from this period to this period.

(c)    At p 61 of the transcript of the interview (J [15], emphasis added):

Delegate: Can you remember your last day of work?

Delegate: Is it December or November?

Delegate: Because you met with [EE] in November.

Delegate (corrected in Court): Then, you said you were attacked. Was it before or after you were attacked?

Applicant: The attack was after

Delegate: OK. So said, the end of November. Alright.

Delegate: And we'll wait for the letter

Applicant: Yeah.

19    At the time of the interview with the delegate in October 2015, the First Appellant had provided a written statement dated 22 June 2015, which stated (emphasis added):

15.    In or about November 2013, I recorded on my mobile phone my conversation with [CC] when he was asking me to deposit recovered sum into his personal account. …

16.    I brought this embezzlement scandal into [EE] UBL country head attention. …

17.    [EE] and I had a secret meeting for over 2 hours in which I exposed with proof all involved in corruption and embezzlement of money.

…

19.    As a result of this meeting [CC] Regional head was sacked in November 2013. …

…

22.    I was attacked twice on the road on 1 December 2013. …

20    Was there a probative basis for the finding in AAT [52]? As noted, the first issue is whether there was a probative basis for the Tribunal’s statement in AAT [52] that “[w]hen interviewed by the delegate, the [First Appellant] also said that in November 2013 he was still working at the bank”. If there is not, then the second issue is whether this finding was a critical step in the Tribunal’s reasons.

21    As noted, the primary judge considered that it was open to the Tribunal to conclude that the First Appellant’s answer (“[l]ike in one week”) accepted the factual premise of the delegate’s question, that the First Appellant had recorded CC in November (J [29]). The Appellants contend that this interpretation of the relevant part of the transcript (set out in [18](a) above) is simply not open: the delegate states that the First Appellant recorded CC in November, and the delegate’s only question is how long after that did the Appellant meet with EE. The Appellants contend that it is clear from other parts of the transcript (particularly the exchange set out in [18](b) above) that the First Appellant could not remember when he resigned from the bank, and wanted to check his documents from Pakistan once they arrived.

22    There is perhaps some room for disagreement over whether the First Appellant was implicitly endorsing the suggestion that he recorded CC in November in the passage from the delegate’s interview set out in [18](a) above. However, as the Minister points out, the delegate returned to this timeline later, in the passage set out in [18](c) above, and said again to the First Appellant that he met with EE in November. The First Appellant did not disagree with that statement either. Although the delegate says they will wait for the First Appellant’s letter (to determine when he resigned from the bank), the repetition of the month “November” in the delegate’s questions provides a firmer basis for drawing a conclusion from the failure by the First Appellant to correct the delegate’s timeline. Taken together, these two passages provide a probative basis for the conclusion drawn by the Tribunal, that the First Appellant was still working at the bank in November. As noted, the grounds of legal unreasonableness and illogicality or irrationality impose a stringent standard. And the delegate drew the same conclusion from the whole of the First Appellant’s evidence: the delegate’s summary of the First Appellant’s claims on this point was that he covertly recorded the conversation about the deposit on his mobile phone “[i]n November 2013”.

23    For completeness, I note it could be said that the transcript of the interview, by itself, only shows that the First Appellant said he was working at the bank in November, and does not provide a basis for a finding that the First Appellant told the delegate at the interview that he was working at the bank in November 2013. However, that does not mean that there is no probative basis for the relevant finding in AAT [52]. Given the First Appellant’s June 2015 statement, it would be open for a decision-maker to infer that the First Appellant’s reference to “November” in the delegate interview meant “November 2013”. In other words, the clear effect of the First Appellant’s evidence in the delegate interview was that he was still working at the bank in November 2013, even if the First Appellant did not say expressly that those events occurred in 2013. This is the analysis of the primary judge: see J [30].

24    Was AAT [52] a critical step? Given this conclusion, it is not strictly necessary to determine whether the sentence in AAT [52] was a critical step in the Tribunal’s reasons. The Appellants contend, correctly, that the inconsistency in the First Appellant’s evidence as to when he was working for the bank, when he recorded CC, and when CC was sacked, was an “important issue” in the Tribunal’s reasons (see AAT [71]), and those matters were “crucial events” in the First Appellant’s account (AAT [51]). The Appellants accept that there was an inconsistency between the timing of these events in the First Appellant’s account to the Tribunal, on the one hand, and in his written statement, on the other (AAT [49]), and a different timing again in the First Appellant’s student visa application (AAT [67]).

25    However, the Appellants submit that these credibility findings cannot be disentangled, and that an error in AAT [52] is still a critical step in the Tribunal’s reasoning.

    The Appellants observe that credibility findings are often non-linear in nature: Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379 at [39] (the Court); VAAD v Minister for Immigration and Multicultural Affairs [2005] FCAFC 117 at [79] (the Court).

    The Tribunal stated in AAT [53] that an internet search (even if it showed that the First Appellant resigned in February 2013) “would still not explain why the [First Appellant] would say in his written statement and to the delegate that he was working for the bank in November 2013”, and stated in AAT [92] that, “[c]onsidered cumulatively, the concerns that the Tribunal holds about the [First Appellant’s] credibility lead the Tribunal to find that he is not a witness of truth and the accounts of events on which his protection claims are based is false” (emphasis added). The Appellants contend that these passages show that the two inconsistencies (between the First Appellant’s oral evidence in the Tribunal and his written statement, and his interview with the delegate) cannot be separated, but are intermingled in the Tribunal’s reasoning.

26    It is important to identify the relevant critical step in the Tribunal’s reasoning at the correct level of generality. The critical step was that the First Appellant had given inconsistent evidence about the timing of crucial events during his employment at the bank and in exposing corruption. There would still be material inconsistencies in his evidence, even if the whole of AAT [52] were disregarded, because the First Appellant’s account in the Tribunal would be inconsistent with his earlier written statement, and with the information in his student visa application. And even if the particular statement in AAT [52] that the First Appellant “said that in November 2013 he was still working at the bank” were disregarded, the First Appellant’s account in the Tribunal would still be inconsistent with other aspects of the evidence he gave before the delegate that are mentioned in AAT [52]: namely, the First Appellant said to the delegate that he told EE one week after recording CC, whereas in the Tribunal he said that he recorded CC in 2012 and informed EE in February 2013.

27    I am conscious that the Court must not engage in merits review, in the guise of assessing whether an error was material to a decision. However, in this case, there would still be a probative basis for the Tribunal’s conclusion that there were inconsistencies in the First Appellant’s account of when he worked at the bank, and when he recorded CC, and when CC was sacked, even if the impugned statement in AAT [52] is disregarded. In those circumstances, it is difficult to see how that part of AAT [52] is a critical step in the Tribunal’s reasons: the statement in AAT [92] is referring to the Tribunal’s various credibility concerns, not the individual inconsistencies underpinning the Tribunal’s first credibility concern. Further, as explained above, there was a probative basis for the Tribunal’s finding in any event.

conclusion

28    The appeal must therefore be dismissed. There is no reason to depart from the usual position as to costs.

Associate:

Dated:    19 August 2026

SCHEDULE OF PARTIES