Federal Court of Australia

ALT18 v Minister for Immigration and Citizenship [2026] FCA 1421

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    This is an appeal from the decision of the Federal Circuit and Family Court of Australia (Division 2) in ALT18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 209 (Primary Judgment or PJ), dismissing an application for review of a decision of the (then) Administrative Appeals Tribunal (the Tribunal) made on 11 January 2018. The Tribunal’s decision had, in turn, affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant a protection visa.

2    By way of short background, the appellant is a citizen of Fiji who arrived in Australia on 20 February 2015 on a visitor visa. Shortly thereafter, on 18 May 2015, she applied for a protection visa. As explained below, the appellant’s claims for protection were based on fears of being subjected to domestic violence by a former partner in Fiji. A delegate of the Minister refused the grant of that visa on 24 November 2015. The appellant sought a review of the delegate’s decision before the Tribunal.

3    On 11 January 2018, the Tribunal affirmed the delegate’s decision (Tribunal’s Decision or TD). The appellant then made an application to the Court below seeking judicial review.  That application was dismissed by the primary judge on 19 February 2025.

4    By an amended notice of appeal, the appellant raises two grounds of appeal. Both grounds of appeal contain several particulars. The first ground of appeal relates to the way the Tribunal dealt with and addressed the appellant’s claims that she had been subjected to domestic violence by a former partner in Fiji and, in particular, whether that decision was legally unreasonable. The primary judge had rejected this ground below, but the appellant complains that his Honour erred in doing so in various ways. The second ground of appeal relates to the primary judge’s refusal to take “judicial notice” of eight propositions relating to domestic violence as advanced by the appellant.

5    For the reasons that follow, I am not satisfied that any error has been established on the part of the primary judge and the appeal should be dismissed.

2.    THE PRIMARY JUDGMENT

6    In order to contextualise the matters on appeal, it is first necessary to consider the claims made by the appellant and the relevant parts of the Tribunal’s reasons before turning to address the way in which the primary judge dealt with the appellant’s arguments in the proceedings below.

7    As noted in the Primary Judgment at [9], part of the appellant’s claims for protection included a claim that she had left Fiji due to being subjected to domestic violence by her former partner. Those claims were summarised as follows:

•    [The appellant] left Fiji on 20 February 2015, and arrived in Australia on the same day, holding a visitor visa. The applicant has a cousin who lives in Australia.

•    The reason she left Fiji was to escape from danger to her life from her de facto husband. She suffered physical harm and threats to her life at his hands in Fiji. They started to live together in 2010, and there were no major incidents until 2012, although from the start of the relationship he was controlling. He was an alcoholic and she was seriously beaten many times.

•    She provided examples of a number of incidents from March 2012 until December 2014 where she was abused, assaulted and threatened by her de facto husband. She went to the police on two occasions in 2012 and 2014, and upon the advice of a director at her work, she went to the Fiji Women's Crisis Centre (FWCC) for help. They recommended that she could take out a restraining order but that she cannot be protected.

•    She was unable to relocate to avoid him because he would have found her and killed her.

•    She left Fiji without his knowledge, and she considers them to be separated.

•    If she returns, he will kill her or seriously harm her. He is angry at her for running away from him. He has told others in Fiji, who have told her, that he will harm her if she returns.

•    She cannot obtain state protection because he has relatives and friends in the police and army. She would not be able to relocate because he will find her and kill her.

•    The only family she declared back in Fiji was her four children. She stated that she is in contact with her first two children. Concerning her last two children with her former de facto, she is in contact with them through "the" sister.

8    The appellant gave evidence at the hearing before the Tribunal and was represented by Counsel: PJ [13].

9    In the proceedings before the Tribunal, the appellant provided a statutory declaration which contained evidence in support of her claims that her former partner had subjected her to domestic abuse and sexual violence: PJ [10].

10    During the hearing before the Tribunal, the Tribunal raised several concerns with the appellant and her Counsel as to the credibility of the appellant’s claims: PJ [12]. This included concerns relating to the absence of any evidence of her relationship with her former partner, any evidence from the police in Fiji, the absence of any medical evidence of past harm, and the absence of evidence of birth certificates of her four children. These questions were raised in the context that the delegate had accepted that the appellant had four children and had been in a de facto relationship before leaving Fiji but was not satisfied as to her claims of domestic violence: PJ [12]. The Tribunal also put information to the appellant pursuant to s 424AA of the Migration Act 1958 (Cth) which also raised concerns about the veracity of various aspects of her claims: PJ [14]-[15].

11    Ultimately, the Tribunal did not accept the appellant as being a witness of truth and gave reasons for why it had not accepted the appellant’s various claims and much of the evidence which had been called in support of those claims such that it was not satisfied that the appellant had a well-founded fear of persecution: PJ [16]-[23].

12    The appellant’s sole ground of review in the proceedings below was that the Tribunal’s decision was legally unreasonable and that it made “skewed” credibility findings: PJ [25]. The sole ground of review was supported by many particulars as to the various ways in which it was said the Tribunal erred. In addition, the appellant made submissions to the primary judge that his Honour should take “judicial notice” of eight propositions relating to matters of domestic violence in accordance with s 144(1) of the Evidence Act 1995 (Cth) (Evidence Act).

13    The primary judge rejected all the appellant’s contentions: PJ [70]-[111]. The primary judge’s essential reasoning (not including the uncontroversial propositions of law set out at PJ [70]-[79]) was as follows:

(a)    the Tribunal had the advantage of seeing the appellant give evidence and was in a better position than the primary judge to assess the appellant’s credibility: PJ [85];

(b)    the Tribunal was fully aware of the claim by the appellant that she was a victim of domestic violence: PJ [86];

(c)    the Tribunal specifically cautioned itself as to the issues faced by a person who has suffered past trauma, and having difficulty in recalling matters: PJ [86] citing TD at [46];

(d)    the Tribunal was not satisfied the appellant’s past trauma and difficulties in recalling matters could explain the significant variations in the appellant’s evidence: PJ [86];

(e)    the Tribunal’s conclusions as set out in (c) and (d) above were open to the Tribunal on the basis of the evidence before it and for the reasons it gave: PJ [86];

(f)    it was the totality of the inconsistencies in the appellant’s evidence that allowed the Tribunal to conclude she was not a witness of truth and the Tribunal had not acted in any way inconsistent with the Tribunal’s Guidelines on the Assessment of Credibility: PJ [87]-[88];

(g)    the appellant’s contention that the Tribunal failed to understand the unique challenges faced by victims of domestic violence and the special vulnerabilities of the appellant as a claimed victim of domestic violence sought to challenge the evaluative process undertaken by the Tribunal and did not point to any particular matter where it was said the Tribunal committed jurisdictional error, rather it is a general statement of vehement disagreement with the Tribunal’s factual findings: PJ [89];

(h)    contrary to the appellant’s contentions, the questions the Tribunal asked of the appellant did not indicate that it required the appellant to act in “total servitude” to her de facto partner and, rather, the Tribunal was legitimately exploring the appellant’s evidence: PJ [90]-[91];

(i)    despite one minor factual error as to whether the appellant had left Fiji two months after being granted her visa when the actual fact was that she left one month after, the Tribunal had not made any errors in the factual findings it had made including those which tested the veracity of various claims the appellant had made and recorded various inconsistencies in her evidence: PJ [92]-[109]; and

(j)    the Tribunal did not fail to follow guidance from the courts to consider the disadvantages faced by refugee appellants and fairly assess their credibility. The Tribunal referred to the difficulties faced by victims of trauma and the impact of this on their evidence, and took that into account in its assessment of the appellant’s evidence. The Tribunal engaged with the evidence carefully, thoughtfully and reasonably such that its adverse credibility conclusions were not legally unreasonable: PJ [110].

14    In relation to appellant’s contention that “judicial notice” be taken of eight propositions relating to domestic violence, the primary judge was not satisfied that those propositions could all be drawn from a document that had been relied upon by the appellant and, in any event, was not satisfied that the authority of the relevant document could not reasonably be questioned: PJ [82]. His Honour nevertheless accepted other general propositions as to the prevalence and impact of domestic violence: PJ [82].

3.    GROUND 1

15    Ground 1 of the amended notice of appeal in substance complains that the primary judge erred by not finding errors in the Tribunal’s reasons or by misapprehending or ignoring the appellant’s grounds of judicial review in the proceedings below. Specifically, by Ground 1, the appellant contended that the primary judge:

(a)    failed to engage with the appellant's substantial written and oral submissions on several legal issues central to the alleged jurisdictional error on the part of the Tribunal;

(b)    wrongly treated the appellant's challenge to the Tribunal's reasoning as mere disagreement with factual findings, rather than a challenge to the legal reasonableness of the Tribunal's evaluative reasoning; and

(c)    failed to find that the Tribunal had made evaluations of the appellant's conduct through assumptions that ignored the context (or the background settings) of the abusive domestic relationship the appellant was in such that those evaluations were legally unreasonable because they demanded the appellant to have behaved in a way that was not realistically available to the appellant in the circumstances in which she found herself, and treated anything short of slavish compliance with the perpetrator's demands as inconsistent with her claimed fear.

16    Ground 1 consisted of twelve extensive particulars. The appellant grouped particulars 1(a)-1(f) as relating to a “failure to apprehend and apply the context of domestic violence”, and particulars 1(g), 1(h), 1(i), 1(j), 1(k) and 1(l) as relating to the “imposition of an unrealistic standard of precision on the appellant”. I consider that these groupings are appropriate, save that I have grouped particular 1(l) in the former category relating to the failure to apprehend and apply the context of domestic violence. These categories and the particulars contained therein are outlined and addressed in turn below.

3.1    Context of domestic violence

17    By particulars 1(a)-(f) and 1(l), the appellant contended that the Tribunal failed to perform its statutory task of considering the appellant’s protection claims according to law because it evaluated the appellant’s claims and evidence outside their factual context. The appellant submitted that, instead of evaluating the appellant’s claims and evidence by reference to her being an alleged victim of domestic and family violence, the Tribunal assessed her behaviour as though she was an “ordinary” protection visa applicant. Recognition of the context of domestic abuse, it is said, was an essential element of the Tribunal’s statutory task. It was submitted that the Tribunal’s failure to perform this task rendered its decision legally unreasonable and infected by jurisdictional error. The appellant contended that the primary judge failed to recognise this and thereby erred.

18    The appellant relied in particular on the High Court’s observations in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at [52], [59] (Gageler J), [84] (Nettle and Gordon JJ) and [134] (Edelman J) to the effect that legal reasonableness cannot be assessed in the abstract and depends upon the factual and statutory context in which the decision was made. The appellant contended that these statements were consistent with Mason J’s observations in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 that the matters a decision-maker is bound to consider are determined by the construction of the statute, having regard to its subject matter, scope and purpose.

19    Before assessing the particulars advanced, it should be observed that the threshold for establishing legal unreasonableness is high and it is not a finding lightly made: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [33] (Allsop CJ, Besanko and O’Callaghan JJ). The “correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [133] (Crennan and Bell JJ). The ultimate question has been framed as whether the satisfaction of the relevant state of affairs or matter was “not based on findings or inferences of fact supported by logical grounds, such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material”: Djokovic at [35] quoting Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [52] and [173].

20    It is now necessary to examine each of the particulars to Ground 1.

21    By particular 1(a), the appellant submitted that the primary judge failed to address her submissions on several critical issues relating to the failure of the Tribunal to assess claimed events and fears objectively from the perspective of a potential domestic violence victim, rather than any other protection visa applicant, beyond stating that the Tribunal was entitled to make its findings. The appellant gave several examples of this which are dealt with in turn below.

22    First, in relation to particular 1(b), the appellant contended that the primary judge accepted the Minister’s submission that the appellant sought “to proceed on the basis of assuming the truth of all of the [appellant’s] various claims” despite the appellant’s submissions squarely disputing this to have been the case. The appellant contended that her argument was instead that the Tribunal assessed her credibility as a potential domestic violence victim without understanding the context within which persecutory events take place in real life in domestic violence situations. The appellant contended that the primary judge did no more than restate the Minister’s argument without engaging with oral submissions made by her Counsel.

23    I do not accept the appellant’s contentions. They do not reflect an accurate characterisation of the primary judge’s reasons. On this topic, the primary judge reasoned as follows:

59.    The applicant cannot demonstrate legal unreasonableness by assuming the truth of her claims on the instances that the Tribunal found adversely to her claims. The Tribunal made a credibility finding based on a cumulative assessment of the problems with the applicant’s evidence.

…

87.    The Court does not accept the reasoning of the Tribunal was ‘extreme’ or that it had an unrealistic expectation on the consistency required from the applicant in regard to her evidence. The Court accepts the first respondent’s submission that the applicant seeks to proceed on a basis of assuming the truth of all of the applicant’s various claims, and then claims legal unreasonableness on the basis they were not accepted. What must be looked at is the reasoning process followed by the Tribunal in coming to the conclusions it has. If the reasoning process does not support the factual conclusions, then a finding may be said to be legally unreasonable.

24    The point that the primary judge was making at PJ [59] was that the appellant’s contentions as to error involved an acceptance of her claims as she had framed them and her evidence in support of those claims. The primary judge’s reasons were in substance that as the Tribunal had rejected the appellant’s credibility, the appellant’s contention as to legal unreasonableness necessarily involved a challenge to those findings. In other words, legal unreasonableness could not be established in circumstances where the essential evidence upon which it was based had not been accepted. That had nothing to do with any contextual matter but involved an orthodox evaluation of the evidence before the Tribunal. However, as noted below, the primary judge observed that (in any event), in assessing the appellant’s evidence, the Tribunal had in fact taken into account that evidence given by persons the subject of domestic abuse may be affected by distress and difficulties of recall. In other words, the Tribunal had in fact had regard to the context of domestic abuse in assessing the credibility of the appellant’s evidence. No error is disclosed in the primary judge’s reasoning.

25    Second, with respect to particular 1(c), the appellant contended that the primary judge relied upon the Tribunal’s acknowledgment (at TD [46]) that trauma, distress and difficulties of recall may affect a person’s evidence but failed to engage with the appellant’s submission that the Tribunal did not in fact apply that principle when assessing the appellant’s credibility. The appellant contended that the Tribunal did not identify any specific instance in which the acknowledged effects of trauma, distress or difficulties of recall were applied to the assessment of the appellant's evidence and instead, continued to rely upon perceived inconsistencies, imprecise recollection and chronological uncertainty as adverse credibility findings. The appellant further contended that the primary judge erroneously accepted that reasoning.

26    As accepted by the appellant, the Tribunal stated that it was aware that the appellant claimed that she experienced domestic violence and cautioned itself as to the effect of potential trauma on her evidence. It stated (at TD [46]):

Further, while the Tribunal accepts that a person can be nervous, and recounting past harm and trauma can lead to distress and difficulties in recall, on the evidence before it, the Tribunal is not prepared to accept this, or her use of the English language as an explanation for the significant difficulties with her claims and evidence.

27    As is apparent from the above passage, having accepted that evidence may be affected in this way, the Tribunal was nevertheless not satisfied that those matters explained the inconsistencies in the appellant’s evidence. The primary judge’s reasons on this topic were as follows:

83.    The Court notes that in considering the evidence of the applicant, at [45] – [46], the Tribunal accepted ‘that there is domestic violence in Fiji and there have been times when state protection has not been of assistance.’ The Tribunal also specifically noted that ‘a person can be nervous, and recounting past harm and trauma can lead to distress and difficulties in recall’ but it was not prepared to accept this was ‘an explanation for the significant difficulties with her claims and evidence’.

…

86.    First, the Court is satisfied that the Tribunal was fully aware of the claim by the applicant that she was a victim of domestic violence. At [46] the Tribunal specifically cautioned itself as to the issues faced by a person who has suffered past trauma, and having difficulty in recalling matters. However, the Tribunal was not satisfied this matter could explain the significant variations in the applicant’s evidence. That was a conclusion that was open to the Tribunal on the basis of the evidence before it and for the reasons it gave.

…

89.    I now turn to each of the pleaded particulars. The first particular is a claim that the Tribunal failed to understand the unique challenges faced by victims of domestic violence and the special vulnerabilities of the applicant as a claimed victim of domestic violence. This particular seeks to challenge the evaluative process undertaken by the Tribunal. This claim does not point to any particular matter where it is said the Tribunal committed jurisdictional error, rather it is a general statement of vehement disagreement with the Tribunals factual findings.

28    I discern no error in the primary judge’s reasons. Nor do I consider that the observations made by Gageler J (as his Honour then was) in SZVFW at [59] that “reasonableness is inherently sensitive to context” assists the appellant’s contention. The Tribunal in the present case did in fact have regard to the relevant context.

29    Third, particulars 1(d) and 1(e) both allege that the primary judge mischaracterised “Ground 1(a)” of the Second Further Amended Application for judicial review (Judicial Review Application).

30    Particular 1(d) contended that the primary judge characterised “Ground 1(a)” as a general statement of disagreement with the Tribunal’s factual findings, rather than a claim that the Tribunal’s assessment of the appellant’s credibility was affected by legal unreasonableness arising from its failure to have regard to the known vulnerabilities of an alleged victim of domestic violence. The appellant contended that her argument was directed to the Tribunal’s reasoning process, rather than the correctness of its factual conclusions. The appellant further contended that the primary judge did not deal with Gageler J’s observations in SZVFW at [59] to the effect that a decision may be rational yet lack the necessary factual context, despite the appellant relying on it.

31    By the reference to “Ground 1(a)”, it appears that the appellant is referring to particular (a) of the Judicial Review Application in the proceedings below, which provided as follows:

The Tribunal failed to understand the unique challenges faced by victims of domestic violence, especially those with young children. As a result, it did not fairly assess the credibility of the claimed events. A reasonable decision-maker would have taken into account the applicant’s special vulnerabilities as a genuine domestic violence victim.

32    In relation to particular (a) of the Judicial Review Application, the primary judge stated as follows (at PJ [89]):

I now turn to each of the pleaded particulars. The first particular is a claim that the Tribunal failed to understand the unique challenges faced by victims of domestic violence and the special vulnerabilities of the applicant as a claimed victim of domestic violence. This particular seeks to challenge the evaluative process undertaken by the Tribunal. This claim does not point to any particular matter where it is said the Tribunal committed jurisdictional error, rather it is a general statement of vehement disagreement with the Tribunals factual findings.

33    It is apparent from the primary judge’s reference to the “evaluative process undertaken by the Tribunal” that his Honour understood that the appellant’s argument was directed to the Tribunal’s reasoning process, rather than merely its factual findings. Although the primary judge described particular (a) as a “general statement of vehement disagreement with the Tribunals factual findings”, his Honour did address the ground overall through the prism of legal unreasonableness. The primary judge summarised Ground 1, to which particular (a) related as follows (at PJ [48]):

The sole ground of judicial review is expressed as a claim of legal unreasonableness and skewed credibility findings. This is then expressed as a legally unreasonable perspective on domestic violence victims and an expectation of unrealistic precision in relation to her evidence. What follows is a list of 12 matters where the applicant submits the Tribunal was unreasonable.

34    It is clear from the above extract that the primary judge plainly understood the appellant’s overarching argument to be one of legal unreasonableness. At the conclusion of the primary judge’s consideration of the final particular that was advanced in the proceedings below, the primary judge disagreed that the Tribunal’s assessment of the appellant’s credibility met the high bar of legal unreasonableness as follows (at PJ [110]):

The Court is satisfied that the Tribunal engaged with the evidence and was both careful, thoughtful and reasonable in coming to the adverse credibility conclusions that it did. Those conclusions do not rise to the stringent level required to show legal unreasonableness.

35    In so doing, I am satisfied that the primary judge did not fall into error. Although the primary judge did not specifically refer to SZVFW (which had been relied upon by the appellant), this did not matter. As earlier noted, the “correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”: SZMDS at [133]. That is in substance how the primary judge reasoned by concluding that the Tribunal’s findings were open on the materials before it.

36    Particular 1(e) contended that the primary judge erred by treating “Ground 1(a)” of the Judicial Review Application in the proceedings below as a free-standing statement of disagreement with the Tribunal’s factual findings, when it in fact identified the underlying error said to have infected the Tribunal’s Decision. The appellant further contended that particulars (b)-(l) of the Judicial Review Application, along with the appellant’s submissions in the Court below, identified the findings and reasoning process said to demonstrate that error.

37    That this is how the particulars were intended to be read is not at all apparent on the face of the Judicial Review Application or the appellant’s written submissions in support of that application. In any event, I am not satisfied that the primary judge fell into error as alleged by the appellant. The primary judge carefully assessed whether the Tribunal’s assessment of the appellant’s credibility was legally unreasonable and addressed each of particulars (b)-(l) of the Judicial Review Application before reaching the conclusion that the decision was not legally unreasonable. In my view, that finding was correct and the primary judge’s reasons in this respect disclose no error.

38    Fourth, in relation to particular 1(f), the appellant submitted that the primary judge erroneously defended the Tribunal’s persistent questioning of the appellant as to why she did not fully obey her “persecutor” to avoid danger, which reflected an implied unreasonable expectation that the appellant should have behaved in a wholly “slavish” manner, revealed a failure to comprehend the dynamics of domestic violence, and disclosed the use of an erroneous assessment framework which lacks respect for the basic human rights of a woman.

39    In relation to this matter, the primary judge reasoned as follows:

90.    The second particular suggests the Tribunal expected the applicant to behave in total servitude towards her de-facto partner. Reference is first made to the transcript of the Tribunal hearing at p28 at 35-40. The applicant claimed to be in a relationship where she was controlled by her de-facto and under a threat of constant violence. Yet in that exchange the applicant recounts telling her de-facto that despite his demand that she come home straight away, she told him ‘’Well, no, I’m coming home in an hour’. This answer was given in circumstances where the applicant had claimed her de-facto was already violent.

91.    At page 40 at 20-33 the applicant again gives an account of refusing to obey her de-facto. Again, there is a further exchange at page 41 at 5-30 where the applicant again states she defied her de-facto. The Court does not accept these exchanges indicate the Tribunal required the applicant to act in ‘total servitude ‘to her de-facto. Rather the Tribunal was legitimately exploring the applicant’s evidence.

40    The first portion of the transcript of the Tribunal hearing referred to by the primary judge was as follows:

[TRIBUNAL MEMBER]: 2015, yes. All right. So then we talk about the March 2012 incident. I just have a question about that. Do you remember what happened on that incident?

[APPELLANT]: Yes.

[TRIBUNAL MEMBER]: He texted you and said, "What are you doing?" and you said, "I'm at home listening to music."

[APPELLANT]: Yes.

[TRIBUNAL MEMBER]: Then you went out.

[APPELLANT]: Yes.

[TRIBUNAL MEMBER]: It seems like you didn't let him know and you didn't leave him a note or anything like that, and he comes home at 10 o'clock on Saturday night and finds you not home. Is that right?

[APPELLANT]: Yes.

[TRIBUNAL MEMBER]: And he says, excuse my language, "Where the fuck are you?" And you say, "I'm at a friend's place and I'll be home in an hour."

INTERPRETER: Yes.

[TRIBUNAL MEMBER]: He said, "Come home straight away or I'll come there." I said, "Please, I'll be there in an hour and I'm just with my cousin." He said, "Who is that bitch?" and I switched off the mobile. I returned at 11.15 pm. I don't understand why: (a) you wouldn't leave a note for him; (b) you would be out on a Saturday night at 11.15 if you've got this controlling, possessive person; and (c) why, when he says, "Come home now," and you go, "Well, no, I'm coming home in an hour." It just doesn't - I don't understand that.

My understanding from your statement is this is not the first time he had beaten you; he started to beat you in 2012. Is that right?

Sorry, you have to say yes or no.

[APPELLANT]: Yes.

[TRIBUNAL MEMBER]: He was already violent, so why would you be so defiant to him? Possessive, controlling, jealous man who wants you home. You're just saying to him, "No." I don't understand.

INTERPRETER: Because I didn't believe that he was going to assault me since I was pregnant.

(Emphasis added.)

41    The second portion of the transcript of the Tribunal hearing referred to by the primary judge is extracted below:

[TRIBUNAL MEMBER]: Again with the third incident in April 2014, you're disobeying him. He says, "Do this. Come and do this, come and be with me," and you were just saying, "No." Now, he's a violent man, he's possessive, he's in control, he's in charge. Why do you say no?

INTERPRETER: Because at that time I had something to do right at that moment.

[TRIBUNAL MEMBER]: Was it worth being physically harmed for?

INTERPRETER: There was a few of us there together. I had my relatives with me and I didn't think that he was going to be violent.

[TRIBUNAL MEMBER]: So this is a man who has been violent starting off in 2012. He threatened, previous to that, to beat up a male friend of yours.

INTERPRETER: Yes.

[TRIBUNAL MEMBER]: So why do you think he's going to be fine - why do you think he's going to care about anyone, like that you're relatives are there? Why do you think he's going to care about that?

INTERPRETER: Because I would think that he would respect my relatives.

[TRIBUNAL MEMBER]: If you thought he'd respect your relatives, why didn't you leave him and go and live with your relatives?

INTERPRETER: There would be a lot of rumours passing around.

[TRIBUNAL MEMBER]: I also don't understand: after the first knife incident, you again defy him at a Saturday gathering. So he's already been violent in front of your relatives. You're now in December 2014 at your relatives again. He's already threatened you with a - there's already been a knife incident in August 2014. Then he says to you, "Switch off your mobile and come over and join in." And you say to him - well, you defy him, basically. You basically say, "No, I'm not doing it."

INTERPRETER: Yes.

[TRIBUNAL MEMBER]: And you said, "No, I'm going to stay." And he said, "Come home now." And you said, "No, I'm going to stay with my family." I'm not understanding when he's like that why you would defy him like that. Also by this stage you're planning to go overseas. So what I'm saying is that previously for being defiant he's been violent towards you in front of your family, and so now why were you defiant again? Especially, by this stage you were feeling that he was going to murder you.

[APPELLANT]: So what was the question again?

[TRIBUNAL MEMBER]: Yes, okay. I'm not understanding why you were defiant to him in December 2014 when there had already been the previous knife incident, and from August 2014 you were scared he would murder you.

INTERPRETER: I didn't believe that it will cause him to be violent in what I said because I was just answering his question.

(Emphasis added.)

42    There are aspects of the Tribunal’s questions of the appellant that do appear to question why she would continue to defy her alleged abuser. Although, on their face, the Tribunal’s questions appear to be insensitive to the complex dynamics of abusive relationships, it was not the only aspect of the appellant’s evidence that the Tribunal tested or tested in this way. The Tribunal did not ultimately reject the appellant’s evidence on the basis that it was lacking in credibility because she continued to defy her alleged abuser and, in fact, this matter is not addressed in the Tribunal’s reasons at all. None of this evidence was ultimately relied upon by the Tribunal in any of its factual or other findings. Rather, the Tribunal reasoned that the appellant’s evidence was lacking in credibility due to a number of inconsistencies that were not related to the topic of why she would have defied her abuser. I address these inconsistencies in detail at [52] below. As a result, even though I regard the questions asked by the Tribunal of the applicant to have been insensitive, they were not dispositive in any relevant way.

43    The primary judge considered that the Tribunal’s questions were “legitimately exploring” the appellant’s evidence. I take his Honour’s reason to mean that the Tribunal was testing aspects of the evidence, which, on one view, it was (even though it was doing so insensitively). Whilst I myself would not regard such questions as legitimately exploring the appellant’s evidence, it does not matter. That is because what matters is not the questions that were asked at the Tribunal hearing but the reasoning of the Tribunal for rejecting the appellant’s evidence, which was not affected by this aspect of the questioning by the Tribunal. For that reason, I am not satisfied that the primary judge erred in rejecting the appellant’s contention that the conclusions reached by the Tribunal were legally unreasonable.

44    Fifth, in relation to particular 1(l), the appellant contended that the primary judge erred by failing to “consider/accept” the appellant’s submission that the Tribunal’s reasoning TD [58] rested upon assumptions inconsistent with the primary judge’s acceptance that domestic violence transcends socio-economic boundaries and that evidence of domestic violence should be assessed in a trauma-informed manner.

45    At TD [58], the Tribunal reasoned as follows:

In her statement, she claimed that there is a controlling nature of men over women which is the norm. The delegate's decision record noted that the applicant presents herself as a submissive, traditional, native Fijian woman, who must submit herself to a man and endure what she is subjected to. This however appeared to be in contrast with her evidence indicating that she is an educated person, she worked for Suva City Council for 10 years, she owns her own apartment, and that in the past she was able to end a previous de facto relationship. When the delegate put this inconsistency to the applicant, her response was that she was "too afraid from her de facto partner". However, the delegate noted that she was able to lease her apartment while residing in Australia, and that her partner willingly moved out and resides with his family, which suggests she has control of her personal affairs. Her response to this was that this was because it is "her house". On the basis of the adverse credibility finding, the Tribunal is not prepared to accept that the applicant has been unable to control her affairs and circumstances in Fiji.

46    The primary judge found as follows:

108.    The next particular alleges the Tribunal erred in finding the applicant had been able to control her affairs in Fiji and showed an inability to understand the complex issue she faced when leaving the children behind to escape a violent situation in which the de-facto had total control over the applicant.

109.    This finding was but one of a number of findings which indicated the Tribunal did not accept the evidence being given by the applicant. The Tribunal found it inconsistent that, if the de-facto was in ‘total control’, that the applicant would have been able to organise a passport, visa, together with enough money to fund her travel to Australia. This was a finding that was open to the Tribunal on the evidence before it and for the reasons it gave.

47    The primary judge ultimately concluded (at PJ [110]) that the Tribunal’s adverse credibility conclusions did “not rise to the stringent level required to show legal unreasonableness”. I agree. The Tribunal rejected the appellant’s evidence that she had no control over her affairs. Given the material before the Tribunal, that finding was open and was not legally unreasonable. As a result, the primary judge’s reasons in this respect disclose no error.

3.2    Imposing an unrealistic standard of precision

48    By particulars 1(g)-1(k), the appellant contended that the Tribunal imposed an unrealistic standard of precision and consistency on the assessment of the appellant’s claims and evidence, rather than assessing those claims and evidence in the context of domestic violence. It was submitted that this standard of precision impacted the Tribunal’s assessment of several factual matters which contributed to the Tribunal’s adverse credibility finding against the appellant, and the rejection by the Tribunal of several documents upon which the appellant relied.

49    First, in relation to particular 1(g), the appellant submitted that the primary judge failed to engage with the appellant’s complaint that the Tribunal’s adverse credibility findings were affected by the application of an impermissibly exacting standard of precision and consistency, including unrealistic expectations of temporal sequence, factual recall and behavioural consistency in circumstances of domestic violence, coercion and instability. The appellant contended that the primary judge instead addressed the Tribunal’s reasoning generally, and concluded that the Tribunal’s findings were “open” to it and that the Tribunal had taken into account trauma, without considering whether the Tribunal’s evaluative methodology was legally unreasonable because it assessed the appellant’s evidence against an unreasonable standard of precision and consistency.

50    In support of this contention, the appellant pointed to PJ [92]-[98] as responding to individual aspects of the Tribunal’s credibility reasoning concerning delay, the appellant’s departure from Fiji, the appellant leaving her children behind in Fiji, inconsistencies regarding the appellant’s background and various documentary matters. However, the appellant contended that these paragraphs of the Primary Judgment did not engage with her submissions to the effect that the Tribunal's overall assessment was legally flawed because it evaluated those matters through an impermissibly exacting standard of precision and consistency, rather than in the context of the dynamics of domestic violence.

51    The various submissions in the Court below with which the appellant alleges the primary judge failed to engage related to: (a) the appellant’s failure to accurately recall the years in which she conceived, was pregnant with and gave birth to various of her children; (b) the appellant’s failure to attend hospital after allegedly being assaulted by her then de facto partner while pregnant despite going to the police; (c) the Tribunal’s failure to understand that strong-minded, educated, successful and articulate women have found it difficult to cope with domestic violence; (d) the appellant’s delay in departing Fiji; (e) the appellant’s decision to leave her four children in Fiji; (f) the fact that the birth certificates of her two daughters bore the name of her former de facto partner despite her contending they did not; (g) the appellant’s failure to disclose the existence of her two daughters and former de facto partner in her visa application; and (h) the appellant’s use of two different surnames in relation to her former de facto partner.

52    The Tribunal gave detailed reasons explaining its concerns in relation to the appellant’s credibility which are summarised below:

(a)    The appellant stated that she gave birth to her first child while she was at University but her forms indicated that she had been working for two years at the time she gave birth to her first child. The appellant stated that she could not recall when she fell pregnant with her second child and later stated it was in 2008, despite the child being born in November 2009. The appellant contended that when she was assaulted in March 2013, she was pregnant with her fourth child, but her visa application form indicated that her fourth child was born on 25 May 2012 (at TD [38]-[41]).

(b)    The appellant claimed that after experiencing violence from her then de facto partner when she was seven months pregnant, she was concerned about her unborn child, but despite going to the police, she “did not think” to go to the hospital (at TD [42]).

(c)    Despite alleging that her former de facto partner wanted to murder her since August 2014, the appellant delayed applying for her visa by three months after applying for her passport on the basis that she needed to obtain a letter from her cousin, and delayed leaving Fiji by almost two months after her visa had been granted on the basis that it was hard to leave the children, she wanted to travel to see her father, she was busy at work and one of her children was sick for two weeks (at TD [22]-[26]).

(d)    The appellant claimed she left Fiji for her own safety but left vulnerable young children with her former de facto partner, despite stating that he had also been violent towards the children many times (albeit “mainly” with her sons, rather than her daughters who were left in his care) (at TD [27]).

(e)    The appellant initially told the delegate of the Minister that there were two fathers to her four children, but at the hearing before the Tribunal indicated that her four children had three different fathers (at TD [29]).

(f)    The appellant initially said the name of her second child and his father were the same but the name she gave did not match the name she set out in her visa application form (at TD [30]).

(g)    The appellant used inconsistent surnames for her most recent former de facto partner (one appearing to be a shortened version of the other) (at TD [31]).

(h)    The appellant listed different surnames for her two youngest children in forms submitted to the Minister. The appellant also indicated during her interview with the delegate of the Minister that the birth certificates for her two youngest children did not contain their father’s name, but later provided copies which did contain his name (at TD [32]-[34]).

(i)    The appellant claimed in her visa application that she had never been married or in a de facto relationship and that she only had two children, and gave different reasons for having done this at her interview with a delegate of the Minister and at the hearing before the Tribunal (at TD [35]-[37]).

53    To the extent that the appellant challenged each of these findings, the primary judge found as follows (at PJ [92]-[98]):

92.    The third particular is again a general claim of vehement disagreement with the Tribunals ultimate findings.

93.    The fourth particular takes issue with four specific factual findings regarding:

(a)    The applicant’s departure from Fiji;

(b)    Leaving her children behind;

(c)    Inconsistencies as to her background; and

(d)    Corroborative documents and general country information.

94.    It is noted and conceded by the Minister that the Tribunal made a factual error in finding that the applicant left two months after being granted her visa when in fact it was only one month. The Court accepts that the applicant was granted her visa on 19 January 2015, and she arrived in Australia on 20 February 2015.The Court is not satisfied that this error was so material that it rises to the level of jurisdictional error, given the multitude of other adverse credit findings. In coming to this conclusion, the Court has been conscious of the nonlinear nature of credit findings, and the potential for one adverse credit finding to infect other adverse credit findings.

95.    The Tribunal noted at [23] and [26] that the applicant claimed that she had been in fear of being murdered since August 2014, yet did not apply for a passport immediately and then even after she obtained her passport, she did not immediately apply for a visa. The Court is satisfied the Tribunal provided adequate reasons for coming to the adverse credibility conclusion that it did in this aspect.

96.    The applicant then takes issue with the concerns expressed by the Tribunal at [27] as to her explanation as to why she left her children behind in Fiji, including two children with her de facto. The Court does not consider this reasoning to reach the stringent level of legal unreasonableness. Again, this submission merely takes issue with the evaluative process followed by the Tribunal.

97.    The next issue relates to claims about inconsistencies regarding the applicant’s background. These include at [29] the number of fathers to her children. The Tribunal’s finding that it would have expected the applicant to be able to give consistent information about who were the fathers of her four claimed children, and that the inconsistencies undermined her credibility, was a finding that was open to the Tribunal on the evidence before it. The same can be said at [30] in relation to the inconsistency in relation to the name of one of her children. The failure to provide the birth certificates of her first two children was also a legitimate matter for the Tribunal to take into account in relation to the applicant’s overall credibility.

98.    The same can be said in relation to the inconsistent changing evidence as to whether the father’s name appeared on the birth certificates at [32] as well as at [35] the applicant’s clear false evidence in her visitor visa application that she had never been married or in a de facto relationship, and that she had only two children not four.

54    Having regard to the above, I am satisfied that the primary judge addressed the appellant’s contentions. I am not satisfied that the Tribunal imposed a stringent standard that was above and beyond the orthodox standard as to whether on the balance of probabilities that the appellant’s various claims were established to its satisfaction.

55    Second, by particular 1(h), the appellant contended that the primary judge erred by finding that the Tribunal had a rational basis for discounting documentary evidence, despite the appellant’s submissions to the contrary, which the appellant contended were not addressed. Those documents included a letter and checklist produced by the agent who assisted the appellant with her visa application (Agent Letter and Checklist), along with the birth certificates for the appellant’s two youngest children, all of which were provided to the Tribunal after the hearing. The submissions which the appellant contended the primary judge did not address were ones which raised various reasons why the appellant said the Tribunal should have placed weight on the Agent Letter and Checklist and birth certificates. The balance of the submissions to which the appellant referred related to the appellant’s interactions with the Fiji Women’s Crisis Centre (FWCC), including the Tribunal’s treatment of the letter produced to the delegate of the Minister dated 17 April 2015 from the FWCC (FWCC Letter), and accordingly is addressed separately below.

56    In relation to the birth certificates of her two youngest children, the Tribunal made the following findings:

32.    Inconsistent and changing evidence about whether the father's name appears on the birth certificates: Further, the Tribunal noted that, although the applicant now claimed that the surnames of her two younger children was [her most recent de facto partner’s last name] (as set out above), she had provided different information about the daughters' surnames in her two forms submitted to the Department (protection visa application forms and personal particulars forms); in one form she claimed that the daughters' surname was the same as her surname …, on the other form she omitted their surnames altogether. The Tribunal put this to her, and in response she said that she had [subsequent to the delegate's decision record which noted with concern that she had not provided the birth certificates of her children] requested the birth certificates and she had been surprised that the birth certificates did have his name on them, because when she registered the births, the father's name was not on the birth certificate.

33.    The Tribunal put to the applicant its concern with her evidence in this regard, noting her evidence to the delegate at interview that the birth certificates for the daughters do not have their father's names on them because birth certificates in Fiji do not list the father's name as a result of the application of Fijian laws which require a marriage certificate to be produced in order to list the father's name on the birth certificate. Further, the delegate's decision record contained country information indicating that a father's name can be included on the birth certificate of a child even if the parents are not married. The Tribunal was concerned that after having told the delegate that the birth certificate could not have the father's name on it, she was now claiming that she had birth certificates in her possession (which she had not produced at or before the hearing), which contained the father's name. When the Tribunal put this to the applicant later in the hearing, she said she did not wish to comment. The Tribunal considers that the applicant's failure to offer an explanation for this undermines her credibility.

34.    The Tribunal notes that after the hearing, the applicant produced birth certificates for the two younger children said to be the children of the de facto. The certificates record that the applicant was the informant for both births on the same day (16 April 2014) and that [the appellant’s most recent de facto partner] is the father of both children. The Tribunal notes that significant information is contained on the birth certificates about the father, including his date and place of birth, and his occupation. The Tribunal considers that if the applicant is recorded as the informant of the information on the birth certificates, then this indicates that she is the person who provided the information about the father which was recorded on the certificates. This however is in direct contradiction to her evidence to the delegate that the father could not even be recorded on the birth certificates because they were not married. The Tribunal considers that the above undermines the applicant's claims and the certificates.

…

47.    As noted above, the Tribunal is not prepared to place any weight on the letter and checklist produced by the agent/friend in relation to the claimed false assertions provided to the Australian authorities in relation to the offshore visitor visa application. Nor is the Tribunal prepared to place any weight on the claimed birth certificates, given the concerns with the applicant's evidence and those documents referred to above.

57    The primary judge plainly had regard to the appellant’s submissions in relation to the Tribunal’s failure to place any weight on the birth certificates and summarised them as follows (at PJ [51]):

The Tribunal’s rejection of the birth certificate may have been due to the surname being in the shortened or lengthened version and this was not justified. The applicant argues that these documents are independent of the applicant as they are provided by the State and the Tribunal was “pedantic” in how they dealt with this issue.

58    With respect to the Agent Letter and Checklist, the part of the Agent Checklist on which the appellant relied was a request for a “copy of marriage certificate (if married/ non travelling spouse to provide consent letter)”. The Agent Letter stated it was from a Senior Consultant Officer of a migration consultancy service who helped the appellant with her visa application and that this Officer advised the appellant that “if she wished to disclose her [de facto] relationship on her application she need to provide a consent letter from her [de facto] partner”.

59    The Tribunal’s findings in relation to the Agent Letter and Checklist were as follows:

35.    Claim in her offshore visitor visa application that she had never been married or in a de facto relationship, and that she had two children (not four): The Tribunal was also concerned that in her November 2014 offshore application for a visitor visa, the applicant claimed that she had never married or had a de facto relationship; and that she had a father and two children. When the Tribunal put this to her as a concern, she said that this is all wrong; the reason she did not declare her de facto relationship was because she was told by the person assisting her to complete the form that she would need her de facto's signature. The applicant said that she read the application and signed it; and that she only declared two children, not her daughters or current de facto. The Tribunal put to the applicant that this indicates that she was prepared to falsely declare information in order to obtain a visa; in response she said that she was fearing for her life so she had to do whatever it took to get out. The Tribunal has considered this response however it does not find it persuasive, especially when considering her delays in applying to leave, and in leaving, after she claimed to fear being murdered. The Tribunal considers that this indicates that she is prepared to provide false information in order to obtain a visa outcome, which undermines her credibility (and her claims as to her background and family in Fiji).

36.    The Tribunal had a further concern with the applicant's reason given at hearing as to why she had to claim that she had no de facto/ children with her de facto, in her offshore visitor visa application. This is because, at interview, when the delegate put the same information to her, she gave a different reason. Thus, while she told the Tribunal she was aware that the form was being filled in incorrectly, and that this was on purpose, she did not tell the delegate this; she instead placed the blame on the person filling in the form for her for the inaccurate information. The Tribunal put this information to the applicant pursuant to s.424AA of the Act. The applicant's response, received in writing after the hearing, was a letter from a person in Fiji saying that he was the senior consultant with a Fijian agency that assisted the applicant with her offshore visitor visa application. The letter enclosed a checklist which the agent said he gave to the applicant which included a request for a "copy of marriage certificate (if married/ non travelling spouse to provide consent letter)". The Tribunal notes that there was no requirement on the checklist for those in a de facto relationship. The letter states that he advised the applicant that if she wished to disclose her de facto relationship in her application, she needed to provide a consent letter from her de facto partner; the application was lodged without information about the de facto partner.

37.    The Tribunal has a number of concerns about the applicant's response to the information in the form of this letter. Firstly, she has not explained her changing evidence between the delegate's interview (the wrong information provided was all the fault of the person who completed the form, not herself) and her evidence at hearing (she was aware and made a conscious choice to give false information to the Australian authorities in order to obtain a visa). Secondly, the evidence suggests that both the author of the letter and the applicant are prepared to misrepresent the situation and present false information to the Australian authorities in order for the applicant to be granted a visa. Thirdly, in her interview with the delegate she claimed that it was a friend (not an independent, arm's length, agent) who completed the application form for her with erroneous information8; the Tribunal does not consider the letter to be independent, and having regard to the author's previous willingness to tell untruths to the Australian authorities, the Tribunal is not prepared to place any weight on this letter.

60    Again, the primary judge plainly had regard to the appellant’s submissions in relation to the Tribunal’s failure to place any weight on the Agent Letter and Checklist and summarised them as follows (at PJ [50]):

The Tribunal did not place any weight on the letter and checklist provided by the travel agent as they considered that these were false assertions. The applicant argues that the applicant disclosed that the false assertions were the only way to escape from a life-threatening situation in Fiji. Further, they did not ask the applicant to confirm if the travel consultant she had disclosed completed her application was a friend, before continuing to make a credibility finding. The applicant suggests that the credibility of the checklist would have been confirmed via a “simple email” to the Australian High Commission in Suva which would have confirmed the genuine nature of the checklist and whether those in a de-facto partnership were also required to produce a letter from the partner.

61    In relation to the Tribunal’s findings regarding the birth certificates, Agent Letter and Checklist as outlined above, the primary judge held as follows (at PJ [99], [101]-[103]):

99.    At [47] – [54] the Tribunal gave consideration to the documentation provided. It was not prepared to give weight to the letter and checklist produced as well as the two birth certificates that were produced. The weight to be given to particular aspects of evidence is a matter for the Tribunal. The Court is satisfied there was a rational basis for the Tribunal to come to the conclusion that it did.

…

101.    The next particular complains that the Tribunal at [47] made a jurisdictional error by giving no weight to a letter from the travel agent, a checklist produced by the travel agent and birth certificates for two of the children claimed by the applicant as being fathered by her de facto.

102.    Again, the weight to be given to particular pieces of evidence is a matter for the Tribunal. The Court is satisfied that the Tribunal gave a logical basis for the conclusion that it arrived at and its conclusion not to give weight to these documents for the reasons it gave. Again, this complaint merely expresses vehement disagreement with the conclusions arrived at by the Tribunal and does not rise to the stringent level required for legal unreasonableness.

103.    The next particular complains that the Tribunal failed to make a simple enquiry by emailing the Australian High Commission server to verify the authenticity of the travel agents checklist and to confirm whether a letter from the applicant’s de facto was required. As set out above, the duty of the Tribunal was to review the evidence provided by the applicant to determine whether or not she met the criteria for the grant of the visa sought. No evidence has been presented that indicates that the Tribunal were asked to undertake this enquiry. No jurisdictional error arises from the failure to make this enquiry.

62    Having regard to the above, I am again satisfied that the primary judge addressed the appellant’s contentions and, further, I am not satisfied that the Tribunal imposed a stringent standard that was above and beyond the orthodox standard as to whether on the balance of probabilities that the appellant’s various claims were established to its satisfaction.

63    Third, particular 1(k) also related to the Agent Letter and Checklist and advanced the further related complaint that the Tribunal’s rejection of the Agent Letter and Checklist had no probative value in relation to the appellant’s explanation for the non-disclosure of her two youngest children and most recent de facto relationship in her visa application. The appellant contended that the primary judge failed to engage with her submissions that the Agent Letter and Checklist were relied upon to corroborate her explanation for this failure to disclose, rather than to deny it. The appellant contended that the primary judge’s reasons did not address that explanatory purpose and instead incorrectly characterised the appellant’s submission as mere disagreement with the weight assigned to the documents by the Tribunal. I do not agree. As noted above, the primary judge addressed the contentions relating to the Agent Letter and Checklist.

64    Fourth, a related complaint raised by particulars 1(i) and 1(j) concerned the evidence in respect of the appellant’s interactions with the FWCC. Particular 1(i) involved a complaint that the primary judge failed to engage with the appellant's submissions challenging the Tribunal's reasoning concerning the FWCC Letter, including: (a) treating self-reporting as diminishing its evidentiary value; (b) relying upon the fact that the appellant had applied for a visa notwithstanding that no visa had been granted; (c) relying upon the timing of the appellant's attendance at the FWCC without considering its proximity to the most recent violence the appellant was subjected to; (d) failing to consider the appellant's earlier unsuccessful attempts to obtain police protection; (e) failing to consider conduct inconsistent with fabrication; and (f) failing to consider the evidentiary consequences of accepting the genuineness of the FWCC Letter.

65    Similarly, by particular 1(j), the appellant contended that the primary judge erred by upholding the Tribunal’s decision to give no weight to the FWCC Letter notwithstanding that: (a) it was accepted to be genuine; (b) it was verified by the FWCC coordinator; (c) it constituted independent corroborative evidence from an established domestic violence organisation; (d) it corroborated the appellant's disclosure of domestic violence; and (e) the appellant made submissions concerning its corroborative significance which were not addressed.

66    The FWCC Letter stated as follows:

[The appellant], has sought counselling from the Fijian Women's Crisis Centre. According to her she experienced physical, verbal and emotional abuse by her de facto. If you require further information please do not hesitate to contact us on [#######].

67    The Tribunal’s reasoning in relation to the FWCC Letter was as follows:

49.    The applicant's written statement indicated that she had attended the centre after the assault on 13 December 2014, having told a director at her work about her de facto husband's abuse, and the director then told her about the existence of the centre. The delegate expressed doubts with the applicant's evidence that although she worked for the Suva City Council since 2005, which is in close proximity to the FWCC, she did not know about them until her manager told her about them in December 2014. The delegate considered the applicant's evidence, that she had never in the past approached that organisation or any other NGO agency seeking help, to be inconsistent with the actions that a person in the applicant's claimed circumstances (seeking to protect herself and her children) would do, noting her ability to manage her personal affairs, be a single parent for two young sons after her first de facto relationship ended, maintain employment as well as get a home loan to buy property in 2006. The delegate also expressed concern about the letter from the FWCC. The delegate referred to country information about the role of the FWCC (to follow-up on a lack of action by the police, delays by the courts, and actions taken by service providers that undermine women's and children's rights and their access to justice, and to provide crisis counselling and legal, medical, and other practical support services for women and children who are sufferers and survivors of violence committed against them by men), and considered it questionable that the counsellor from the FWCC would have said to the applicant that there was nothing they could to, and that her intention to travel to Australia was her best option. The delegate also noted that this was not corroborated in the letter from the FWCC counsellor, and that the signatory of the letter did not give any specific relevant details as to how they assisted the applicant.

50.    The applicant told the Tribunal that she could not recall the date that she went to get help from the centre; then she said it was about 15 or 16 December 2014. The Tribunal noted that she had already made up her mind to leave the country, she had already obtained her passport in November 2014, so it did not understand why she went to the centre. She responded that she had not been granted a visa at that stage, and she also said she went because she received advice from her director to go. The Tribunal does not find her evidence to be persuasive, especially given her delay in organising to leave the country despite believing she would be murdered since August 2014, and her further delay in leaving Fiji once she received her visa.

51.    The applicant told the Tribunal that she rang the FWCC and asked for the letter, which they provided to her by email. The letter does not provide a date that the applicant sought counselling, it is fairly vague and indicates self-reporting, it does not support what she says occurred to her. The Tribunal asked if she wanted to comment and she said no. At the hearing the Tribunal noted that it had concerns with the letter, when taking into account the letter, the concerns with her credibility and country information that that false documents can be obtained from Fiji. The Tribunal noted that the letter was not an original, it was fairly vague about her, and it just refers to her self-reporting

52.    The agent asked the Tribunal to call the author of the letter and the Tribunal did so at hearing. The person who answered the phone said their name and that they work at the FWCC. The Tribunal said it was calling about a letter that she has written for someone (not disclosing that it was the Tribunal, nor the name of the applicant). The Tribunal asked if she writes letters for people and she said she normally doesn't write a letter, the Centre will, and it depends what the person asks for. The Tribunal asked if they could check their records to confirm if someone had attended the centre and she said she has seen a lot of people so she would have to check; she cannot disclose information over the phone, but a request in writing could be made to the supervisor. When the Tribunal asked for the address and email address, she said that she was not in the office so did not know but she could provide that information later. The Tribunal expressed concern that she did not know these addresses and she said that she has just been taken by surprise.

53.    The Tribunal communicated its concerns about the letter produced by the applicant from the FWCC dated 17 April 2015. A discussion with the author at hearing, taking into account privacy concerns and other matters, did not assist. The Tribunal allowed further time after the hearing for the applicant to provide further evidence, if she wished to do so. The Tribunal received an email dated 15 November 2017 forwarded from the agent, which he had received from the FWCC. The email from FWCC only stated that the letter of 17 April 2015 was "verified" by the coordinator Shamima Ali. The agent also provided an article which stated independently that this person works at FWCC.

54.    The Tribunal has considered the evidence about the letter, which indicates contact made by the applicant with the centre, on an unknown date, whereby she claimed to the centre that she had had domestic violence problems. Given the concerns with the applicant's evidence referred to above, the Tribunal is not satisfied that any self-reporting by the applicant to an organisation, after she has already applied to come to Australia (where she intends to remain, as evidenced by her assertion that she had to make a number of arrangements prior to coming to Australia) is reliable. For this reason, the Tribunal is not satisfied that any weight should be placed upon the letter.

68    The primary judge had regard to the appellant’s submissions in relation to the FWCC Letter and summarised them as follows (at PJ [52]-[53]):

52.    As to the letter from the FWCC and the Tribunal’s concerns as to the applicant’s self-reporting, the applicant submits that the applicant’s visa to come to Australia had not yet been issued (Tribunal hearing transcript 32:32-35). Further, there was no indication that the visa would be issued.

53.    The applicant approached the FWCC two or three days after an incident that occurred on 13 December 2015. She visited under advisement from the Director of the company where she worked. The Tribunal failed to deal with the facts in relation to this. The Tribunal continued on to call the author of the applicant’s FWCC letter. Mr Silva takes issue with the manner in which the Tribunal spoke to this person. However, the Tribunal acknowledging that the letter was verified by the FWCC coordinator proves that the applicant did contact the centre.

69    The primary judge then addressed each of the appellant’s contentions regarding the FWCC Letter and made the following findings:

100.    The Tribunal then set out in some detail its concerns relating to the applicant’s attendance at the FWCC. The Tribunal noted that the applicant did not approach the FWCC until after she had applied and obtained her passport and applied for her visa. Somewhat unusually, at [53] the Tribunal records that during the course of the hearing the Tribunal communicated with the author of the letter from the FWCC and noted that even taking into account issues relating to privacy, that communication did not assist. Further, the Tribunal noted that the letter was ‘verified” by the coordinator of the FWCC. The Court is satisfied that the finding gave no weight to the FWCC letter, taking into account that it simply indicated the applicant had self-reported domestic violence, was open to the Tribunal for the reasons it gave.

…

104.    The next particular complains that the Tribunal failed to accept the applicant reported to the FWCC. The Court does not accept this assertion. The Tribunal gave no weight to the document as evidencing that the applicant had experienced domestic violence, noting that it was made after she had applied for her visa, and was based on self-reporting only, there being no other supportive evidence. The Court does not accept that the Tribunal did not think the letter was genuine, rather that it simply added no weight to the applicant’s claims of experiencing domestic violence.

105.    The next two particulars complain firstly that the telephone call the Tribunal undertook with the FWCC letter writer in Fiji was unsatisfactory. The Tribunal was under no obligation to make the telephone call. The complaint that questions were asked without courtesy at a time when the recipient of the telephone call was travelling in Fiji and it was raining, do not point to jurisdictional error. Further, in my view the Tribunal accepted the letter was genuine, but simply gave it no weight in terms of the claims made by the applicant as to her experiencing domestic violence.

106.    The next particular complains that at [49] the Tribunal wrongly criticised the advice given by the FWCC coordinator. A fair reading of [49] indicates that it was the delegate, not the Tribunal who had significant concerns about why it was that the applicant in the past had never approached the FWCC. Given country information which outlined its role, including following up on a lack of action by police and to provide practical support services for women and children who are the victims of domestic violence, they advised the applicant there was nothing they could do and that the applicant’s intention to travel to Australia was the best option.

107.    In the next paragraph, the Tribunal noted that by the time the applicant approached she had already made up her mind to travel to Australia, that being the case, it did not understand why the applicant would have approached the FWCC. That conclusion was open to the Tribunal on the evidence before it and the reasons it gave. The Court does not accept that the Tribunal failed to understand the issue, as alleged in the particulars.

70    I am not satisfied that the primary judge’s reasons disclose any error.

71    The primary judge plainly considered the appellant’s submissions but simply did not agree that the Tribunal’s reasoning as outlined above was legally unreasonable. The role of the primary judge was not to determine the truth of each of these matters or to embark on impermissible merits review of the Tribunal’s decision, but to determine whether the findings of the Tribunal were legally unreasonable by reference to the high threshold for establishing legal unreasonableness. That task involved asking whether it was open to the Tribunal to engage in the process of reasoning in which it engaged, and to make the findings it made on the material before it. I am satisfied that this is the task the primary judge undertook. The Tribunal was not bound to accept the explanations given or documents provided by the appellant. The Tribunal’s conclusions were clearly open to it based on the extensive reasons it gave. The primary judge ultimately concluded (at PJ [110]) that the Tribunal’s adverse credibility conclusions did “not rise to the stringent level required to show legal unreasonableness”. I can discern no error in the primary judge’s reasons in this respect.

72    In light of my findings in relation to each of the particulars outlined above, the first ground of appeal fails.

4.    GROUND 2

73    The second ground alleges that the primary judge erred in law by misapplying s 144 of the Evidence Act in failing to take “judicial notice” of eight propositions relating to domestic violence, with the consequence that his Honour failed to identify the Tribunal's jurisdictional error arising from its legally unreasonable assessment of the appellant's evidence. These eight propositions, it is said, ought to have been considered by the primary judge when assessing the unreasonableness of the Tribunal’s findings.

74    By way of background, in both written and oral submissions in the proceedings below, Counsel for the appellant sought to rely upon a document that was dated May 2010 and titled “Tool Kit for Domestic Violence” prepared by Lifeline (Toolkit) as support for eight propositions about domestic violence. The primary judge identified those eight propositions as follows:

(a)    There are many reasons why a victim may find it difficult to leave an abuser quickly;

(b)    Leaving an abusive relationship is difficult, dangerous and requires careful planning and support;

(c)    Victims must often act in secrecy to avoid danger;

(d)    The period leading up to and following separation is often the most dangerous time for the victim;

(e)    Even strong-minded, educated, and successful women have found it difficult to cope with domestic violence;

(f)    It is impossible to protect a victim from an abuser who is willing to kill both the victim and herself;

(g)    Victims of domestic violence do not always act in a slavish manner to avoid abuse. The basic human desire for autonomy and freedom often compels them to seek moments of independence, even in small ways; and

(h)    Victims of domestic violence may resort to desperate measures to escape abuse.

75    It appears from the transcript of the hearing in the proceedings below that the primary judge ruled that the affidavit containing the Toolkit was inadmissible. The appellant submitted that although this information was not before the Tribunal and was therefore not admissible, it could still be considered under s 144(1) of the Evidence Act, which provides as follows:

1)    Proof is not required about knowledge that is not reasonably open to question and is:

(a)    common knowledge in the locality in which the proceeding is being held or generally; or

(b)    capable of verification by reference to a document the authority of which cannot reasonably be questioned.

76    The primary judge concluded as follows in relation to the application of s 144(1) of the Evidence Act as to taking judicial notice of the eight propositions:

81.    With all due respect to Lifeline, the Court is not satisfied that a Lifeline Domestic Violence Tool Kit, last revised in 2010, is a document that fits within the definition of a document ‘the authority of which cannot be reasonably questioned’. In any event, not all of the propositions cited by Mr Silva can be readily referenced to that document, only two appear to be direct quotes from that document.

82.    As a result, the Court is not prepared to take judicial notice of the eight propositions put by Mr Silva. Having said that, the Court is well aware of the prevalence of domestic violence within the community, the different types of behaviour that fall within the definition of domestic violence and its impact on victims. Where a person claims that they have been the victim of domestic violence, it is important that their evidence be considered in a ‘trauma informed ‘manner.

77    Ground 2 (as advanced in the appeal before me) consisted of eight particulars, which are identified and dealt with in turn below. The appellant contended that the combined effect of these eight particulars was that the primary judge approached s 144 of the Evidence Act in an unduly narrow fashion and, in so doing, failed to recognise that the Tribunal’s assessment of the appellant’s evidence was required to be undertaken through the framework of basic and reasonably knowable principles concerning domestic violence. That failure, it is said, materially affected the primary judge’s conclusion that the Tribunal’s decision was not legally unreasonable.

78    Before turning to address each of the particulars of Ground 2, I have serious doubts as to the relevance of the reliance on the “eight propositions” by way of “judicial notice” in the judicial review application that was before the primary judge. Even though the appellant contended that these eight propositions were relevant to her claim as to legal unreasonableness, I do not presently see their relevance in circumstances where (as noted above) legal unreasonableness is to be adjudged by reference to the materials before the decision-maker. It was nowhere suggested all or some of the eight propositions about which the primary judge was to take judicial notice were ones that were before the Tribunal or that the Tribunal had erred in some way by not accounting for them. Nor was it demonstrated how those eight propositions were said to be “knowable” by the Tribunal. Having expressed these serious doubts as to relevance, what follows is my consideration of the particulars to Ground 2. For the reasons that follow, I am not satisfied that any error is established.

79    Particulars 2(a) and 2(h) are interrelated. By particular 2(a), the appellant contended that despite the fact that her Counsel relied on both ss 144(1)(a) and (b) of the Evidence Act, the primary judge did not separately analyse the two limbs of s 144 and instead primarily addressed whether the Toolkit satisfied the criteria in s 144(1)(b). By particular 2(h), the appellant contended that the Minister’s concessions and the primary judge’s observations regarding what was accepted as common knowledge during the hearing were not reflected in the primary judge’s ultimate analysis. While the primary judge acknowledged the Court was aware of the prevalence and impact of domestic violence, it was submitted that his Honour did not explain why those accepted matters of common knowledge did not require consideration of whether any of the appellant’s eight propositions were capable of judicial notice under s 144(1)(a).

80    I accept that the primary judge did not expressly address s 144(1)(a) in the Primary Judgment. However, the primary judge clearly stated at PJ [82] that he was well aware of “the prevalence of domestic violence within the community, the different types of behaviour that fall within the definition of domestic violence and its impact on victims” and of the need to assess evidence of victims of domestic violence in a “trauma informed” manner. The primary judge was ultimately satisfied that the Tribunal did this. The primary judge referred to the Tribunal’s reasons at TD [45]-[46], which were as follows:

45.    Documentation was provided about country conditions over different periods of time in Fiji; discussed further below. While the Tribunal is prepared to accept that there is country information indicating that there is domestic violence in Fiji, and that there have been times when state protection has not been of assistance, this does not mean that the applicant's claims are true.

46.    Further, while the Tribunal accepts that a person can be nervous, and recounting past harm and trauma can lead to distress and difficulties in recall, on the evidence before it, the Tribunal is not prepared to accept this, or her use of the English language as an explanation for the significant difficulties with her claims and evidence.

81    The primary judge concluded (at PJ [83]):

The Court notes that in considering the evidence of the applicant, at [45] – [46], the Tribunal accepted “that there is domestic violence in Fiji and there have been times when state protection has not been of assistance”. The Tribunal also specifically noted that “a person can be nervous, and recounting past harm and trauma can lead to distress and difficulties in recall” but it was not prepared to accept this was “an explanation for the significant difficulties with her claims and evidence”.

82    The primary judge’s reasons in this respect disclose no error. Leaving to one side whether judicial notice of domestic violence principles could be (on a judicial review) relevant to the assessment made by the Tribunal of the appellant’s particular evidence and the inconsistencies in that evidence or how propositions drawn from an Australian publication would inform the position in Fiji, I regard the primary judge as having in any event borne in mind the generally accepted knowledge as to the prevalence and insidious impact of domestic violence in the Australian community at large. I see no merit in the appellant’s contentions and discern no error in the way that his Honour dealt with the eight propositions, even though his Honour did not specifically refer to s 144(1)(a) of the Evidence Act. In fact, on one view, the primary judge’s acceptance of the prevalence and impact of domestic violence is indicative of his Honour having taken judicial notice of some but not all of the eight propositions. I discern no error in the primary judge taking the course that he did.

83    By particular 2(b), the appellant contended that the primary judge mischaracterised the appellant’s submission by treating the eight propositions as direct propositions sourced from the Toolkit, when the appellant's submission was instead that they reflected the Toolkit “not in exact words, but in substance”. The appellant further submitted that the primary judge accepted during oral submissions that it was for the Court to determine which, if any, of the eight propositions were capable of judicial notice, but that the primary judge’s reasons do not disclose a proposition-by-proposition analysis.

84    I am not satisfied that the primary judge mischaracterised the appellant’s submission. The primary judge did not reason that each of the eight propositions had to be reflected in the Toolkit in “exact words”. His Honour stated (at PJ [30]), “[t]he Court notes at this juncture that while some of the propositions appear to be direct quotes from the Tool Kit, some appear to be generalisations on the material contained within the Tool Kit”. The primary judge later stated that “not all of the propositions cited by Mr Silva can be readily referenced to that document, only two appear to be direct quotes from that document”. His Honour’s statements indicate that, in substance, not all of the eight propositions could be “readily referenced” to the Toolkit. Counsel for the appellant seemed to accept this proposition in the hearing before the primary judge when he noted that one of the propositions did not have a direct link to the Toolkit.

85    In any event, nothing turns on the appellant’s contentions in circumstances where the primary judge generally accepted “the prevalence of domestic violence within the community, the different types of behaviour that fall within the definition of domestic violence and its impact on victims” as outlined above.

86    By particular 2(c), the appellant effectively contended that the primary judge rejected reliance on the Toolkit for the purposes of s 144(1)(b) without examining the characteristics upon which the appellant relied, including, for example, its comprehensive explanation of established domestic violence dynamics and its identification of Australia-wide specialist support services. Beyond stating in written submissions that the Toolkit “provides information on domestic violence and services available in Australia, both nationally and in all states and territories”, the appellant does not appear to have addressed these features of the Toolkit before the primary judge. The appellant cannot now complain that the primary judge failed to consider matters which were not drawn to his Honour’s attention.

87    By particular 2(d), the appellant contended that the primary judge failed to engage with the appellant’s submission that a court may take judicial notice of matters properly regarded as common knowledge, notwithstanding that those matters were not specifically put to the primary decision-maker, relying on Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8 at [12], subsequently adopted by the Federal Court in Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715 at [959]. The primary judge did not deal with these authorities. That is because he was not prepared to take judicial notice of the eight propositions as being drawn from the Toolkit, but as noted above nevertheless accepted general propositions as to domestic violence.

88    In relation to particular 2(e), the appellant contended that the Primary Judgment failed to engage with AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130 at [37] (Kennett J) to the effect that legal unreasonableness must be assessed by reference to the “material known to (or knowable by) the decision-maker”, and instead treated the inquiry as confined to material actually before the Tribunal. Once again, this contention does not reflect the basis upon which the primary judge determined that he was not prepared to take judicial notice of the eight propositions advanced by the appellant. The primary judge’s reasons disclose no error.

89    By particular 2(f), the appellant submits that the primary judge indicated he was “happy” to take certain matters as “judicial notice” but did not engage in the proposition-by-proposition analysis contemplated during the hearing in the proceedings below. The statements made by the primary judge during the hearing in the proceedings below to which the appellant refers were as follows:

HIS HONOUR: I accept what you’re saying, Mr Reilly. My concern is that I’m not sure that I can go to the – if I wanted to turn – if I’m being asked simply to find that domestic violence is a scourge, it occurs in all sections of society, and it impacts on women mainly, but it also impacts on other people, and that it has a pervasive and insidious impact on people, I’m quite happy to take that as judicial notice. I’m not sure that I can turn around and take it to the level of detail that you’re asking me to, and that’s why I want those eight points, because I want to be clear as to what I can and cannot make a finding on.

90    The primary judge’s observations here are broadly consistent with his Honour’s findings at PJ [82] that the Court was not prepared to take judicial notice of the appellant’s eight propositions and instead acknowledged that the Court was aware more generally of the “prevalence of domestic violence within the community, the different types of behaviour that fall within the definition of domestic violence and its impact on victims”. As noted above, in circumstances where the primary judge rejected the eight specific propositions put by the appellant on the basis that they were not drawn from the Toolkit but otherwise accepted generally known and knowable matters as to domestic violence, I am not satisfied that the primary judge was required to address each of those eight propositions individually. The primary judge’s reasons in this respect disclose no error.

91    Finally, by particular 2(g), the appellant contended that the primary judge (at PJ [86]) treated the appellant’s submissions as directed primarily to the effects of trauma upon recollection, which failed to engage with the appellant’s distinct submissions that the application under s 144(1) of the Evidence Act extended to the behavioural dynamics of domestic violence such as coercive control and secrecy. I do not agree. At PJ [86], the primary judge stated:

First, the Court is satisfied that the Tribunal was fully aware of the claim by the applicant that she was a victim of domestic violence. At [46] the Tribunal specifically cautioned itself as to the issues faced by a person who has suffered past trauma, and having difficulty in recalling matters. However, the Tribunal was not satisfied this matter could explain the significant variations in the applicant’s evidence. That was a conclusion that was open to the Tribunal on the basis of the evidence before it and for the reasons it gave.

92    As already mentioned earlier in these reasons, the Tribunal rejected the appellant’s evidence on the basis of a litany of inconsistencies, even though it took into account the general effects of domestic violence abuse. I am not satisfied that any error has been disclosed.

93    In light of my above reasons, Ground 2 fails.

5.    DISPOSITION

94    The appeal should be dismissed and the appellant be ordered to pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    28 September 2026