Federal Court of Australia

COT19 v Minister for Immigration and Citizenship [2026] FCA 1514

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal, including the costs associated with the amendment of the notice of appeal.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    This is an appeal from the orders of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) made in COT19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 759, by which the primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal’s reasons will be referred to below as TR.

2    The appellants are members of the same family and are citizens of Bangladesh. In January 2016, they applied for Protection (Class XA) (Subclass 866) visas. Their applications were refused by a delegate of the first respondent (Minister) and, on 12 June 2019, the Tribunal affirmed the delegate’s decision.

3    The first appellant is the father and was the primary applicant. In broad terms, his claim for protection rested upon his asserted involvement with the Bangladesh Nationalist Party (BNP) and a fear of harm at the hands of persons associated with a rival political party. The claims of the remaining appellants were either derivative of, or closely connected with, the father’s claims, although the third and fourth appellants also advanced claims based upon events said to have affected them personally.

4    The Tribunal did not accept important aspects of the appellants’ evidence. In particular, the Tribunal member formed an adverse view of the father’s credit and rejected his claims concerning past political activity, threats and harm in Bangladesh (TR [71]–[74]). The Tribunal was not satisfied that the father, second appellant, third appellant or fourth appellant met the criteria for the grant of a protection visa (TR [74], [78], [83], [95]), and ultimately concluded that none of the appellants was a person in respect of whom Australia had protection obligations (TR [98]) and affirmed the decisions not to grant the visas (TR [99]).

5    The appellants commenced judicial review proceedings in July 2019. Remarkably, those proceedings did not come on for hearing for almost six years. The primary judge, when the matter came before him, promptly rejected the then asserted grounds of jurisdictional error and dismissed the application.

6    The principal arguments which now require determination were not advanced before the primary judge. In an ordinary civil appeal, an attempt to recast a case so completely would not be permitted as a matter of course, even where the litigant had appeared below without representation; parties are ordinarily bound by the case put at first instance and, after all, an appellate court is supposed to be concerned with the correction of error.

7    But a more benign approach seems to be well established in migration cases, the ultimate question being what the interests of justice require in the circumstances, having regard to such matters as the explanation for the omission, any forensic prejudice and the apparent merit of the proposed ground: see MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152 (at 154 [2] per Allsop CJ); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187 (at 193–194 [13] per Derrington J); Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; (2017) 258 FCR 1 (at 10 [33] per Gilmour and Mortimer JJ); NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 (at [31]). Here the appellants were unrepresented below; the proposed grounds raise questions of jurisdictional error upon the existing record; the Minister identified no forensic prejudice and did not oppose leave; and the proposed grounds were not so lacking in merit that leave ought to be refused without their determination. Those considerations (especially non-opposition) favoured the grant of leave, although nothing in that conclusion alters the fact that the primary judge can scarcely be criticised for failing to determine a case which was not put to him.

8    Nothing in the foregoing is intended as criticism of the solicitors or counsel who appeared for the appellants on the appeal; quite the contrary. The appellants have had the benefit of highly experienced legal assistance on the appeal, and counsel presented the reformulated case skilfully.

9    On 18 September 2026, I granted leave to amend the notice of appeal to reflect the case advanced in counsel’s written and oral submissions, and directed the appellants to file an amended notice and short supplementary submissions by 24 September 2026. Those documents were filed on 25 September 2026, and the appeal will be determined upon that final articulation of the grounds of appeal.

B    BACKGROUND

B.1    The visa applications

10    The appellants arrived in Australia on visitor visas on 9 December 2015 and, as previously mentioned, lodged applications for Protection (Class XA) (Subclass 866) visas.

11    The first appellant’s written claims were extensive, but their broad thrust may be shortly stated. He claimed, among other things, to be a businessman and a long-standing supporter and member of the BNP. The BNP is a longstanding political rival of the Awami League (which governed Bangladesh from 2009 to 2024). Incidentally, as I remarked during the hearing (I trust not pushing the boundaries of s 144 of the Evidence Act 1995 (Cth) beyond their limits), the delayed resolution of this matter has led to the Gilbertian situation of dealing with a protection case where, as at the time of writing, the BNP now forms the Government of Bangladesh, while the activities of the Awami League are now banned.

12    In any event, the first appellant asserted that his political activities had brought him into conflict with persons associated with the Awami League and that, over several years, he had been threatened, subjected to criminal proceedings and physically attacked. He further claimed that he intended to contest a local council election in March 2016 and that, during 2015, he received threats intended to dissuade him from doing so.

13    More particularly, the father claimed that in February 2011 he was attacked by persons associated with the Awami League and suffered a broken leg; that in late 2015 he received telephone threats concerning his proposed candidacy; and that he was later confronted while travelling home and threatened with death. He also claimed that he became aware in December 2015 that criminal proceedings might be brought against him. His asserted fear was that, if returned to Bangladesh, he would be arrested, killed or otherwise harmed by persons associated with the Awami League.

14    Although the applications were advanced together on the basis of the appellants’ family relationship, and the other appellants referred to the father’s written claims, the children also advanced claims relating to events said to have affected them personally. The third appellant claimed involvement in BNP student politics and that he had been attacked and threatened by persons associated with the student wing of the Awami League. The fourth appellant claimed that, in November 2015, she had been approached while returning from school and threatened by four men. As noted above, the second appellant’s position was substantially dependent upon her membership of the same family unit as the father.

B.2    The proceeding before the Tribunal

15    The appellants appeared before the Tribunal on 18 September 2018. They were assisted by a Bengali interpreter, and their migration agent was present (TR [4]). Shortly before the hearing, the father’s migration agent provided the Tribunal with a statutory declaration dated 30 August 2018 which substantially repeated his original claims (TR [41]). On 15 September 2018, the migration agent provided photographs said to depict the father participating in a protest in Sydney, two letters from BNP figures in Bangladesh, a letter from BNP Australia, and material concerning his membership of the BNP in Australia (TR [42]).

16    The Tribunal accepted that the central question was whether any appellant satisfied the refugee criterion or the complementary protection criterion and, consequentially, whether any other appellant qualified as a member of the same family unit (TR [43]).

17    Much of the Tribunal’s reasoning turned upon its assessment of the father’s credibility. It regarded his repeated voluntary returns to Bangladesh as difficult to reconcile with the fear he professed (TR [58], [73]); treated the differing years he gave for an alleged assault as a material inconsistency (TR [59]); noted aspects of his evidence concerning travel to Malaysia (TR [60]); and relied upon his failure, in oral evidence, to mention a criminal case identified in his written application (TR [61]). The Tribunal member also considered that his answers concerning the BNP’s political programme, the “19 Point Plan”, revealed a want of knowledge inconsistent with the political involvement he asserted (TR [62]); that his evidence about the disposition of his interest in a property varied as to timing (TR [67], [70]); and that his explanation developed so as to connect an incident involving his daughter with both his proposed candidacy and the property dispute (TR [53], [64], [68]–[70]).

18    The Tribunal found that the letters of support did not establish the father’s claimed political involvement in Bangladesh and, after rejecting him as a witness of truth and rejecting his account of political harm, described the letters from BNP figures in Bangladesh as fabricated (TR [71]–[72]) (a finding to which it will be necessary to return). It further found that his BNP membership and protest attendance in Australia did not establish that he was a bona fide BNP supporter or would attract adverse interest upon return (TR [74]). It was not satisfied that he faced a real risk of serious harm, or a real risk of significant harm within the complementary protection criterion, if returned to Bangladesh (TR [74]).

19    The Tribunal separately considered the claims of the remaining appellants. The second appellant confirmed that her application raised no claim of her own and depended upon her membership of the same family unit; following its rejection of the father’s claims, the Tribunal rejected her claim and was not satisfied that she faced a real risk of serious or significant harm (TR [75]–[78]). As to the fourth appellant, it considered her account of being approached on the way home from school to differ materially from the father’s account, which, as it developed, connected the encounter with his proposed candidacy and the property dispute. The Tribunal relied upon that difference in assessing both accounts (TR [64], [68]–[70], [80]–[82]), rejected the fourth appellant’s account, and was not satisfied that she faced a real risk of serious or significant harm (TR [82]–[83]). As to the third appellant, the Tribunal found him to be an unpersuasive witness (TR [90]). Although it acknowledged that he had produced photographs of himself with a BNP politician, it rejected his claims concerning the asserted attacks, threats and political activity (TR [93]), found that his claims had been invented for the purpose of the protection visa application (TR [94]), and was not satisfied that he faced a real risk of serious or significant harm (TR [95]).

B.3    The proceeding before the primary judge

20    The appellants were all present before the primary judge without legal representation and with the assistance of a Bengali interpreter. The father principally made oral submissions, although the primary judge also permitted the third appellant to make submissions. The primary judge explained that the Court’s function was confined to determining whether the Tribunal’s decision was affected by jurisdictional error and afforded the appellants an opportunity to develop their contentions. The appellants relied upon four broadly expressed grounds concerning the Tribunal’s treatment of the claimed risks, the statutory protection criteria and the rationality of its findings. The primary judge held that none disclosed jurisdictional error and dismissed the application.

21    The unrepresented appellants did not distinctly advance the presently articulated complaints concerning the finding of fabrication, the failure to perform the statutory review, or non-compliance with ss 424A and 424AA.

C    THE APPEAL

C.1    The initial case

22    The appellants’ initial outline advanced an extensive irrationality challenge to the Tribunal’s treatment of the first appellant’s evidence, alleged non-compliance with ss 424A and 424AA, and non-compliance with Direction No 56 concerning the 2016 and 2018 DFAT reports (as noted above, it was common ground that the latter two grounds had not been put below).

C.2    The oral hearing and the narrowing of the case

23    At the hearing, the focus of the case advanced in the initial outline was substantially narrowed and, in some respects, reformulated. Counsel did not pursue any contention that mistranslation or other interpreter error had affected the Tribunal hearing, and did not focus on the Tribunal’s reasoning concerning the third appellant.

24    The challenge based upon the first appellant’s repeated returns to Bangladesh was no longer put as a freestanding basis for jurisdictional error, and the suggested significance of his claimed memory impairment was correspondingly confined. The appellants also did not press the complaints that the Tribunal had failed to comply with ss 424A or 424AA in its treatment of the country information and the first appellant’s answers concerning the BNP’s 19 Point Plan. The essence of the argument which remained was directed principally to whether the Tribunal had reasoned irrationally from the evidence, whether its affirmative finding that the two BNP letters were fabricated lacked a proper foundation and had been reached unfairly, and whether its treatment of the fourth appellant’s account disclosed illogicality or non-compliance with ss 424A or 424AA.

C.3    The four amended grounds

25    The final amended notice contains four grounds: Ground 1 alleges that the Tribunal’s treatment of the first appellant’s returns, the assault, criminal proceedings, knowledge of the 19-Point Plan, political activity, property dispute, supporting material and the fourth appellant’s account was irrational, separately or cumulatively; Ground 2 challenges, for want of foundation and procedural fairness, the finding that the two Bangladesh BNP letters were fabricated; Ground 3 alleges illogicality in rejecting the fourth appellant’s distinct claim by reference to differences from an account which the Tribunal also rejected; and Ground 4 alleges non-compliance with s 424A of the Migration Act 1958 (Cth) (Act), including because the requirements of the oral procedure under s 424AA were not met, as the fourth appellant was not given sufficiently clear particulars of the asserted difference between her evidence and that of her father, or its relevance.

C.4    Applicable principles

26    The relevant principles are trite and may be stated shortly.

27    A factual or credit finding may disclose jurisdictional error if it lacks a logical or probative basis, but not merely because another view was open or preferable: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (at 648 [131] per Crennan and Bell JJ). The reasons must be read as a whole, and any error must be material in the sense that, absent it, there was a realistic possibility of a different decision: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (at 327 [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

28    A tribunal may reject evidence without rebutting proof and may assess an applicant’s credit before deciding what weight to give corroborative material: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 (at 491–492 [30]–[36] per North and Lander JJ).

29    Procedural fairness required a meaningful opportunity to address the issues arising on review, not a running commentary or advance notice of every adverse evaluation: s 425 of the Act; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (at 164–166 [40]–[48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). Section 424A requires the Tribunal to give an applicant particulars of information which it considers would be a reason, or part of a reason, for affirming the decision under review, explain why the information is relevant and invite a response. Section 424AA provides an oral procedure by which those requirements may be met while the applicant is appearing before the Tribunal. Neither provision requires disclosure of the Tribunal’s reasoning process.

C.5    Consideration of Grounds 1 to 4

30    As can already be seen, the four grounds overlap somewhat but raise distinct complaints of irrationality, an unsupported fabrication finding, illogical treatment of the fourth appellant’s claim and statutory unfairness. For reasons I will explain, none is established.

C.5.1    Ground 1

31    Ground 1 is an attack upon the rationality of the Tribunal’s adverse credit conclusion, constructed from the several considerations identified in the particulars and, ultimately, from their combined effect.

32    In oral argument, senior counsel for the appellants accepted that some of the individual criticisms might not, standing alone, establish jurisdictional error, but submitted that the Court was required to examine the reasoning as a whole and could conclude that the ultimate credit finding was not rationally open even if every particular challenge did not succeed. The Minister accepted the orthodox proposition that irrationality may be disclosed by the cumulative reasoning, but submitted that the appellants could not avoid the need to demonstrate some legally material defect in the Tribunal’s treatment of the evidence by inviting the Court to perform a general reassessment of credit. The Minister is correct that the cumulative character of the challenge does not relieve the appellants of identifying some legal defect in the Tribunal’s reasoning. But the challenged findings must, of course, be read together rather than in isolation.

33    But what is evident is that the matters relied upon by the appellants, whether taken individually or together, do not establish the irrationality alleged. As to the first appellant’s repeated returns to Bangladesh, counsel did not maintain at the hearing that this consideration independently established jurisdictional error. The narrower submission was that repeated travel could not rationally be treated as inconsistent with fear without considering the circumstances and purpose of each return.

34    The Tribunal did not, however, reason that voluntary return was irreconcilable with any genuine fear. It treated (unsurprisingly) the travel as rationally bearing upon the genuineness and degree of the fear professed, and returned to it as one consideration in the overall assessment (TR [58], [73]). As to the year of the assault, the appellants characterised the difference as an immaterial error of recollection about an event which had occurred years earlier. The Minister answered by submitting it was an important part of the claimed history of political persecution, and the Tribunal was entitled to take account of the different years given while assessing the explanation offered. The discrepancy did not compel rejection of the claim, but neither was it irrational to regard it as bearing upon credit (TR [59]).

35    The complaint concerning the criminal case was put more particularly. The appellants submitted that the first appellant had adopted his written claims, that the oral questioning did not call for the repetition of every matter contained in them, and that it was circular to rely upon his omission of the criminal case while rejecting explanations involving impaired recollection. The Minister submitted that the first appellant had been invited to explain why he feared returning to Bangladesh and had omitted a matter which, on his written case, contributed directly to his departure and fear of return. As a matter of logic, the force of an omission depends upon the question asked and the place occupied by the omitted matter in the account. Here, the Tribunal was entitled to regard the criminal case as sufficiently important that its absence from the first appellant’s oral account called for consideration. It was not bound to accept the explanations advanced for the omission. The Tribunal did not first assume that the first appellant was unreliable and then rely upon that assumption to reject his explanation; it treated the omission as one matter bearing upon its assessment of his credit (TR [61]).

36    The 19-Point Plan was dealt with at some length at the hearing. The appellants relied upon the answer recorded in the Tribunal transcript as the English interpretation heard by the member and submitted that the answer was not properly described as inadequate. They also pointed to the absence from the material of the text of the Plan itself and submitted that there was no demonstrated standard against which the first appellant’s knowledge could rationally be measured. The Minister answered that the Tribunal was entitled to test the first appellant’s claim of substantial and longstanding political involvement by asking him about the BNP’s political programme. The relevant question was not whether he could recite the Plan or give a complete account of its contents, but whether the answer cast any rational doubt upon the depth and duration of the political involvement he claimed. Allowing for the use of an interpreter and the ordinary imperfections of recollection, the Tribunal was entitled to regard the answer as relevant to that question, without treating it as independently determinative (TR [62]).

37    The property evidence was, as became apparent during oral argument, one of the stronger aspects of the appellants’ challenge. The appellants submitted that the Tribunal had conflated the time at which the first appellant agreed to dispose of, or completed documentation concerning, his interest in the property with the later time at which the balance of the purchase money was paid. On the transcript, an agreement or the completion of documentation in September or October 2015 was not necessarily inconsistent with payment in November or December. The analogy between the exchange and the settlement of an orthodox New South Wales conveyance might be imperfect, but serves as an illustration as to why such an account may not be inconsistent.

38    In any event, senior counsel submitted that the discrepancy identified at TR [70] rested upon a misunderstanding of the evidence and affected the Tribunal’s assessment of the manner in which the first appellant’s account had developed. The Minister submitted that the disputed timing formed only part of the reasoning at TR [68]–[70], which was also directed to the connexion drawn by the first appellant between the property dispute and the encounter involving his daughter. I am prepared to proceed on the basis that the Tribunal overstated the discrepancy concerning the dates. That weakens its criticism of this part of the first appellant’s evidence. But the criticism at TR [68]–[70] did not rest upon dates alone. The Tribunal was also concerned with the circumstances in which the property dispute came to be advanced as an explanation for the encounter involving his daughter. Correcting the error about the dates does not dispose of that separate concern.

39    The appellants also challenged the Tribunal’s treatment of the first appellant’s asserted political activity and the material said to support it. They submitted that his BNP membership and attendance at protests in Australia, the letters from BNP figures in Bangladesh and Australia, and the other documentary material were capable of supporting the political adherence which the Tribunal doubted, and that the material could not be disposed of merely by reference to the Tribunal’s anterior view of his credit. They further submitted that the Australian activity required consideration under s 5J(6) of the Act, irrespective of the Tribunal’s conclusions concerning the first appellant’s earlier history. The Minister answered that the Tribunal had considered the material, including the circumstances in which it was produced, the first appellant’s political knowledge, the character of his activities in Australia and whether those activities would bring him to adverse attention upon return.

40    The reasoning at TR [74] addressed the character of the first appellant’s political activities in Australia and whether those activities would expose him to adverse attention upon return to Bangladesh. The Tribunal did not separately address s 5J(6) in its statutory terms. Its consideration of whether the Australian activities were bona fide did, however, address the substance of the question raised by that provision. Its treatment of the Australian activities and associated material was informed by its anterior concerns about the first appellant’s credit, but TR [74] also referred to the nature of the activities and whether they would give rise to an adverse profile in Bangladesh. Leaving aside the Tribunal’s separate affirmative finding that the Bangladesh letters were fabricated, which is considered under Ground 2, I am far from persuaded that its treatment of the Australian activities and associated material lacked a rational foundation.

41    Ground 1 also relied upon the differences between the father’s and daughter’s accounts at TR [64], [80]–[81]. For the reasons given under Grounds 3 and 4, the Tribunal could take account of the difference concerning the asserted reason and character of the encounter, although it misstated the extent to which the father had referred to school attendance. The cumulative submission must therefore be assessed recognising both that inaccuracy and the overstated property discrepancy. Even after those matters are put aside, the return travel, the differing year given for the assault, the omission of the criminal case, the first appellant’s political knowledge, the development of his account and the evidence concerning his asserted political profile furnished a plainly rational basis for the adverse view recorded at TR [71]. As is explained under Ground 2 below, that adverse view had been formed before the Tribunal turned at TR [72] to the letters and described them as fabricated. The separate question whether the later fabrication finding was rationally available, and whether it could have affected the result despite that sequence of reasoning, is addressed under that ground.

42    Ground 1 is not established.

C.5.2    Ground 2

43    Ground 2 concerns the other matter identified during oral argument as being at the high-water mark of the appeal.

44    At TR [72], after rejecting the first appellant as a witness of truth and rejecting his account of political harm, the Tribunal stated that the letters from BNP figures in Bangladesh were fabricated. The appellants correctly submitted that this was an affirmative factual finding. It was one thing not to be satisfied that the letters were genuine or afforded support for the claim; it was another to find that they had been fabricated. Nothing in the appearance, contents or provenance of the letters was said to reveal fabrication.

45    At the Tribunal hearing, the concern put to the first appellant was that the letters had been generated in September 2018 and had not been supplied with the original application. As counsel submitted in this Court, that was a concern about timing and later production; the first appellant was never told that the Tribunal was considering a finding that the documents had been fabricated or procured for the purpose of the application. During argument, I raised with senior counsel a further and narrower concern: an affirmative finding that an applicant had engaged in the serious step of fabricating corroborative documents, if unsupported by any rational basis, might be thought capable of affecting the assessment of his credit more generally. Senior counsel adopted that contention. As I explained in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 (at [44]–[45]), the assessment of credibility is necessarily impressionistic rather than linear; it can be unrealistic to place the various aspects of a witness’s evidence in hermetically sealed boxes, and emphatic disbelief upon one issue may inform the approach taken to the remainder. The appellants contended that the gravity and possible influence of the fabrication finding could not be dismissed as an unfortunate choice of language, because satisfaction that the first appellant had fabricated corroborative documents was apt to affect the assessment of everything else he said.

46    The Minister’s principal answer, developed in oral argument, depended upon the order of reasoning at TR [71]–[72]. The Tribunal had already considered the first appellant’s oral and written accounts and had found that he was not a witness of truth before turning to the letters. It did not use fabrication as a premise from which to infer want of credit; rather, “given the credibility concerns”, it treated the letters supporting the rejected claims as fabricated. The Minister relied upon the principle that a decision maker may form a provisional view about an applicant’s credit before giving attention to corroborative material, provided that the material is then genuinely considered and weighed with the evidence as a whole: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 (at 491–492 [30]–[36] per North and Lander JJ); Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 (at [24]–[26]). It was submitted that TR [72] showed that the letters had been considered and that, even if the stronger finding of fabrication was not rationally available, it was surplus to an anterior and independently supportable credit conclusion.

47    The appellants answered that submission by alleging circularity. The letters were tendered to corroborate the first appellant’s political membership and activity; those matters bore upon the plausibility of the history he gave; and, so the argument ran, the Tribunal could not first reject his credit without proper consideration of the corroborative material and then dispose of that material solely because it had rejected his credit: see WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 (at [12] per Wilcox, Marshall and Jacobson JJ).

48    I accept that the Tribunal could not reject the letters merely because it had already rejected the first appellant’s evidence, where the letters were relied upon to support that evidence. It was, however, entitled to assess the letters in the light of the evidence as a whole, including the matters which had caused it to doubt the first appellant’s credit. The adverse view of the first appellant’s credit rested upon matters other than the letters, and TR [72] shows that the Tribunal considered the letters after reaching that view. The order of reasoning was not, of itself, circular.

49    What is pellucid is that the Tribunal failed to identify a sufficient basis for the additional affirmative finding that the letters were fabricated. It was unnecessary to make that finding, and the Tribunal did not sufficiently explain the basis upon which it did so. The question is whether the making of that finding constituted jurisdictional error and, in particular, whether there is a realistic possibility that, had the finding not been made, the decision could have been different. That inquiry does not require satisfaction that a different result was likely; a realistic possibility, established by reasonable conjecture and falling short of what is fanciful or improbable, is enough: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 (at 514 [2]–[3], 524 [38]–[39] per Kiefel CJ, Gageler, Keane and Gleeson JJ); LPDT (at 327–328 [7]–[9] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

50    I accept that credit findings are impressionistic, and the order in which reasons are written does not necessarily reveal the order or manner in which one adverse conclusion influenced another. That possibility must be allowed for here. Even so, the Tribunal had rejected the first appellant’s evidence for the several reasons collected at TR [71] before it dealt with the letters at TR [72]. It expressed the fabrication finding as a consequence of those concerns, not as a reason for them. The rejection of the claimed political history and incidents did not depend upon proof that the letters were fabricated. With that additional finding removed, the other findings and the reasoning which led to the statutory conclusions remain. Nothing in the reasons or the record supplies a rational basis for thinking that the review might have taken a different course had the finding not been made.

51    The procedural-fairness aspect of Ground 2 must be considered separately. The first appellant was told that the Tribunal was concerned that the Bangladesh letters, together with the Australian BNP letter, membership certificate and photographs, had been produced late and had not accompanied the original application. He therefore had an opportunity to explain their timing, provenance and asserted significance. He was not told that the Tribunal contemplated a positive finding of fabrication.

52    The appellants submitted that, had that allegation been put, he might have adduced or identified evidence concerning the means by which he obtained the letters, his relationship with their apparent authors and, through those matters, his asserted BNP involvement. That submission identifies the possible forensic response which the absence of notice denied him and, had the fabrication finding contributed to the rejection of his credit or political history, the omission would have presented a substantial difficulty.

53    Again, the sequence of the reasons is not conclusive, but it is important. As I have explained, the first appellant’s evidence and claimed political history had already been rejected for the reasons collected at TR [71] before the Tribunal used the word “fabricated” at TR [72]. Evidence concerning the provenance of the letters and his relationship with their apparent authors might have answered the fabrication concern and afforded some further support for his asserted BNP involvement. But the appellants did not identify any particular evidence which could have been supplied, or explain how it might realistically have answered the several grounds upon which his account had already been rejected. I am therefore not satisfied that the failure to put the possible fabrication finding deprived him of an opportunity which might realistically have affected the outcome.

54    Ground 2 fails.

C.5.3    Ground 3

55    The appellants’ argument concerning the fourth appellant began with the way in which her independent claim was elicited. The Tribunal asked why she could not return to Bangladesh. She answered that she did not feel safe because she had been approached and threatened, and had been told to tell her father not to allow her to go to school. When asked whether she knew why they did not want her to attend school, she said that they had not told her. The appellants submitted that the Tribunal inaccurately recorded this as an answer that the men had said nothing else, and then treated her account as inconsistent with her father’s. The first appellant had adopted the written claim and (at p 33 of the Tribunal hearing transcript) had himself referred to the daughter being threatened in connexion with school attendance. His account added that the men acted because of his proposed candidacy and, as his evidence developed, the property dispute. The appellants proceeded upon the undisputed basis that the daughter had not heard her father’s evidence. She gave a shorter account and did not identify those reasons.

56    Senior counsel put the distinction in oral argument by saying that, if one witness says an event occurred and that A, B and C were said, while another says the event occurred and A was said, the latter account is incomplete but not necessarily inconsistent. It was submitted that the Tribunal identified no reason, independent of the comparison with the father’s account, for rejecting the daughter’s account of the encounter. Senior counsel referred to Riechelmann v McCabe [2024] NSWCA 37 at [52], [67]. The point for which it was invoked was a narrow one: a difference between two accounts must be examined in the setting of the evidence as a whole and does not, without more, require rejection of both.

57    The Minister submitted that the difference was qualitative. The father’s account did not merely contain additional incidental detail; it supplied the political and property-related explanation which gave the encounter its asserted connexion with a Convention reason or retaliatory harm. The daughter did not identify that explanation and, when asked why the men did not want her to attend school, said she did not know. The Tribunal could therefore regard the accounts as materially different without being obliged to accept either.

58    I accept that the daughter’s evidence was not inconsistent merely because it was less elaborate and that the Tribunal’s statement concerning the absence of any reference by the father to school attendance was inexact. The relevant difference concerned the asserted reason for, and character of, the encounter. The father attributed it to his proposed candidacy and, as his evidence developed, the property dispute; the daughter, when asked why the men had acted, said that she did not know. The Tribunal was entitled to consider that difference when assessing the accounts, although the daughter’s inability to identify the men’s reason did not of itself establish that the encounter had not occurred. Read as a whole, TR [80]–[83] does not show that the Tribunal rejected her account solely because it differed from an account which it also rejected. Its conclusion also reflected its assessment that her evidence did not establish the political or property-related basis upon which the asserted risk was advanced.

59    Ground 3 fails.

C.5.4    Ground 4

60    Ground 4 concerns the same evidence. The appellants submitted that the father’s evidence was information which the Tribunal considered would be a reason, or part of a reason, for affirming the decision under review. They proceeded upon the basis that the evidence had been given outside the daughter’s presence, a proposition which was not disputed. They contended that s 424A of the Act required the Tribunal to give her clear particulars of that information, explain its relevance and invite her response, and that the oral procedure adopted by the Tribunal did not meet the requirements of s 424AA. The complaint was that the matter had been put inaccurately: the Tribunal said that her father’s evidence was not that she had been threatened in relation to attending school, although both his adopted written account and his oral evidence referred to such a threat. The difference upon which the Tribunal could properly have focussed was that his account also supplied a political and property-related explanation for the encounter. According to the appellants, the daughter was not told with sufficient clarity that the absence of those features from her evidence might be used in assessing her independent claim.

61    The Minister relied upon SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (at 614 [14], 615–616 [17]–[18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). He submitted that the matter arose from a comparison of evidence given during the review, rather than from information obtained from some undisclosed external source. The oral exchange, read fairly and without the precision expected of a pleading, conveyed that the Tribunal perceived a difference between the father’s account, which connected the encounter with his political activity and disputes, and the daughter’s account, which did not. Her answers showed that she understood she was being asked whether she knew why the men had acted. The notification obligation under s 424A, and the oral procedure under s 424AA, did not require the Tribunal to disclose every inference which it might draw or each step in its developing reasoning.

62    The father’s evidence was capable of being “information” for the purposes of the provisions. The appellants proceeded upon the basis that it had been given outside the daughter’s presence, and that proposition was not disputed; but the fact that the evidence was given during the hearing does not, by itself, answer the ground. Nor can it be gainsaid that the Tribunal’s oral formulation was inaccurate to the extent that it suggested that school attendance formed no part of the father’s account. The question is whether, despite that inaccuracy, the substance of the information and the reason for its relevance were made sufficiently clear to allow the daughter to respond to the matter which concerned the Tribunal. The exchange conveyed that the father had attributed the incident to matters concerning him, whereas the daughter could not say why the men had approached her and told her not to attend school. She was asked to explain what she understood about their reason for acting and answered that question. The inaccurate reference to school attendance did not obscure the material difference between the accounts or deprive her of an opportunity to address it.

63    Ground 4 is therefore not established. None of the amended grounds succeeds.

C.6    Country information

64    The procedural position concerning the complaint about the 2016 and 2018 DFAT reports is somewhat confused. The complaint formed part of the appellants’ initial case and was maintained in oral argument, but it was not included in the amended notice of appeal filed pursuant to the leave granted at the hearing. I do not consider it necessary to determine a complaint which does not form part of the amended notice of appeal. Although superfluous to the disposition of the appeal, I will mention briefly why the complaint would not, in any event, have succeeded.

65    The Tribunal recorded the applicable ministerial direction and stated that it had taken account of the identified policy guidelines and relevant country-information assessments to the extent relevant (TR [10]). The appellants relied upon passages in the 2016 and 2018 DFAT reports concerning political violence, including violence associated with local government elections, restrictions upon opposition activity, the use of legal proceedings against BNP members and the risks faced by persons with an adverse political profile. They submitted, by reference to SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 (at 38 [19]–[20] per Perram J), that this material corresponded with important features of the first appellant’s account and was so obviously relevant that the absence of express reference to it supported an inference that it had not been considered.

66    The reports were capable of providing contextual support for the plausibility of aspects of the first appellant’s account. They did not, however, establish that he possessed the political history or profile he claimed, that the particular incidents upon which he relied had occurred, or that his activities in Australia would bring him to adverse attention upon return. Those matters depended upon the Tribunal’s assessment of his evidence and the other material concerning his individual circumstances, which it rejected for the reasons collected at TR [71]–[74].

67    The appellants further submitted that Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (at 70 [49] per McHugh and Gummow JJ) did not dispense with consideration of the DFAT material or permit the Tribunal to disregard the Bangladesh letters. The proposition is unobjectionable, but it does not answer what occurred here. The Tribunal turned its attention to the letters at TR [72], considered the Australian political material at TR [74], and stated at TR [10] that it had taken account of the relevant country-information assessments. The question remains whether the contents of the reports were such that, despite that express statement, the Tribunal’s silence concerning the particular passages supports an inference of non-consideration.

68    I do not consider that inference should be drawn. The passages relied upon provided general and contextual information capable of bearing upon the plausibility of the claimed political setting, but they did not contradict the Tribunal’s reasons for rejecting the first appellant’s personal history or require acceptance of the Bangladesh letters. This was not a case in which country information left unmentioned in the reasons supplied an evident answer to the grounds upon which the Tribunal resolved the individual claims. In those circumstances, the absence of express discussion of the particular passages does not overcome the Tribunal’s statement at TR [10] or establish that it failed to comply with Direction No 56.

D    CONCLUSION AND ORDERS

69    The reformulated case has been considered on its merits. The Tribunal overstated the property discrepancy and unnecessarily, and without sufficient explanation, described the BNP letters as fabricated. Even if the fabrication finding was erroneous, the other findings upon which the claims were rejected stand independently of it. The appellants have not shown a realistic possibility that the review would have taken a different course had the finding not been made. Read as a whole, the reasons disclose a rational path to the conclusions reached, and no denial of procedural fairness or non-compliance with ss 424A, 424AA or 425 of the Act, capable of vitiating the decision, is established.

70    The primary judge did not err in dismissing the application and the appeal must be dismissed with costs.

Associate:

Dated: 16 October 2026

SCHEDULE OF PARTIES