Federal Court of Australia

BNE24 v Minister for Immigration and Citizenship [2026] FCA 1561

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent's costs fixed in the amount of $3,000.

Note:    Entry of orders is dealt with in Rule 39. 32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant's application for a protection visa was refused. He sought review in the Administrative Appeals Tribunal. The Tribunal affirmed the decision to refuse to grant the appellant a visa. He then sought review of the Tribunal's decision in the Federal Circuit and Family Court (Division 2) on the basis of alleged jurisdictional error. His application was dismissed: BNE24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 179. He now brings an appeal in this Court. The sole ground of appeal is alleged error by the primary judge in failing to uphold the ground of review advanced in the Circuit Court. That ground was to the effect that the Tribunal's findings concerning the appellant's credibility were illogically made or were otherwise unreasonable.

2    The appellant conducted the appeal on his own behalf. He did not file written submissions, though he was afforded an opportunity to do so. He did not seek to advance oral submissions. In effect, he relied upon the record of what had been put before the primary judge.

3    For the following reasons, the appeal must be dismissed with costs.

The principles to be applied

4    The primary judge correctly referred to the principles to be applied by referring to the decision in DAO16 v the Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30] (Kenny, Kerr and Perry JJ). In Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [43], Gordon J referred to DAO16 to support the proposition that credibility findings are susceptible to jurisdictional error on the basis of unreasonableness.

5    In the case of the Tribunal, the obligation to give reasons requires those reasons to reveal the basis for findings as to credibility. Where reasons are given, the intelligible justification for the decision must lie within the reasons that have been given: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [47].

6    Where there is said to be unreasonableness as to fact-finding then the matters summarised in Vo v Minister for Home Affairs [2019] FCAFC 108; (2019) 269 FCR 566 at [43] (Derrington, Banks-Smith and Colvin JJ) pertain. In particular, the test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11], [52], [135].

7    In the present case, the Tribunal was required to make a decision on the merits standing in the shoes of the statutory decision-maker, being the Minister's delegate. It was not bound by any aspect of what the delegate had decided. Rather, the Tribunal was required to make its own decision by a process and by reasoning that had the attributes contemplated by the legislation governing the Tribunal's decision-making. It was also required to make a decision that was within the scope of the particular decision-making power being exercised. Relevantly for present purposes, factual reasoning, including as to the inferences to be drawn, was within the scope of the Tribunal's statutory task; that is to say, it had authority to adjudicate matters of fact for the purposes of deciding the outcome of the protection visa application. The Circuit Court on review for alleged jurisdictional error had no authority to assume that fact-finding responsibility.

8    Therefore, jurisdictional error in the reasoning by the Tribunal as to the credibility of the account given by an applicant is not established by seeking to persuade a court on review that the Tribunal's reasoning includes an error in the sense that the Court would not make the same finding. Instead, the ground advanced before the Circuit Court required the appellant to demonstrate that the Tribunal's reasoning process, as evident from a consideration of its reasons, was so unreasonable as to mean that the decision lacked the required characteristics for the discharge of the Tribunal's statutory task (even allowing for the Tribunal's statutory authority to determine the facts, including the credibility of the material presented). It was necessary to show that there was an error so grave both as to its nature and the significance of its subject matter that it resulted in a decision that was reasoned in a manner that was not authorised: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25], [31]-[32].

9    Finally, as was explained by Allsop CJ (Wigney J agreeing) in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [12]:

Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

The reasoning of the primary judge

10    After summarising the Tribunal's reasons, the primary judge concluded that the Tribunal's analysis of the evidence was sound: [27]-[28]. In that regard, his Honour reached the following conclusion:

In my view, all of the matters pointed to by the Tribunal in reaching the conclusion that the applicant was not a credible witness and approaching his evidence with considerable caution reflect a sound analysis of the evidence. The Tribunal went into matters such as inconsistencies in the narrative, the absence of detail and implausibility and the interaction of these factors in making the findings that it did.

I do not consider that any of the circumstances identified by the Tribunal were objectively minor matters. In my view, the findings were rationally made and based upon facts that had logical and probative value. They were articulated and analysed and set out clearly. I do not consider that the Tribunal made any error in the way it approached its assessment, and, in my view, there is no error as alleged.

11    The first sentence of the second paragraph quoted above dealt with a possible way in which reasons may be outside the bounds of reasonableness when it comes to credibility findings, namely by reaching an adverse conclusion as to credibility based upon minor aspects of the overall account given by a witness: see, for example, CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]-[45].

12    Further, his Honour did not accept a contention to the effect that the reasons given were some form of subset of reasons: at [29]. His Honour found expressly that reasons given later in the Tribunal's reasons were a summary of the reasons for not accepting the credibility of the account given by the (then) applicant to the Tribunal. The summary was to be read together with 'the detailed analysis of the evidence and the applicant's credibility, and the process of consideration and reasoning that the Tribunal undertook in reaching the findings that it did [in the summary paragraph] in not accepting aspects of the applicant's claims': at [31].

No error in primary judge's reasoning

13    The reasoning by the primary judge involved an evaluation as to whether the reasons that the Tribunal gave were so lacking in coherence or detail or logical support that the decision was outside the bounds of the decision-making authority entrusted to the Tribunal.

14    In undertaking that evaluation, it was necessary to:

(1)    consider the Tribunal's reasons as a whole;

(2)    avoid approaching the reasons with an eye attuned to error; and

(3)    recognise that the authority to determine the facts and inferences that may be drawn from the material before the Tribunal was part of the Tribunal's function that was not to be assumed by the Court on review.

As to these matters, see Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [60], Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [14] and Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36.

15    Further, there will be no unreasonableness of the kind sufficient to give rise to jurisdictional error unless it has the consequence that the reasons as a whole fail to provide an intelligible or coherent justification for the result: SZVFW at [10], [82] and at [85].

The reasons of the Tribunal

16    The Tribunal's reasons as to the appellant's credibility (noting that he was then the applicant before the Tribunal) involved the following steps:

(1)    The Tribunal recorded the claims that the applicant made as the basis for seeking a protection visa (paras 21 to 27);

(2)    The Tribunal made the following finding as to the way in which the applicant departed Indonesia (para 28):

The applicant departed Indonesia on 10 November 2016, travelling to Australia on a visa that had already been granted a couple of weeks before any of these events took place. The applicant's evidence was that he was able to leave Indonesia without any hindrance. He said he was somewhat surprised that he could leave unhindered when he had been arrested earlier.

(3)    The Tribunal recorded the claims that the appellant made about his subsequent return to Indonesia (paras 29 and 30);

(4)    The Tribunal then made the following findings about the appellant's account as to these matters (paras 31 to 34):

The applicant could not provide any detail about when police were looking for him, instead relying on what had been reported to him. He agreed that his wife and brother knew he was due to return to Indonesia but failed to tell him that police were looking for him.

I put to the applicant that I had difficulty accepting that, in the circumstances, neither his wife nor his brother warned him about police attention before his return. The applicant agreed and suggested he was angry at his wife and brother for that.

In any event, the applicant was able to re-enter Indonesia unhindered and leave Indonesia unhindered in early July 2017 to return to Australia. The applicant did not give any evidence about experiencing any harm whilst he was in Indonesia following his return.

When asked why he did not apply for a protection visa immediately upon his return but waited for around three months, the applicant claimed that he still had hope that the situation settled down. He could not explain why he maintained that hope, other than asserting that he had hoped things would settle down.

(5)    The Tribunal then recorded a further claim made by the applicant about what had happened with the Police when he returned (para 34, last sentence).

(6)    The Tribunal then recorded the nature of the applicant's fear as to harm (paras 35 to 37).

(7)    The Tribunal then recorded aspects of the applicant's evidence when questioned by the Tribunal as to parts of his account (paras 37 and 38). For example, the Tribunal recorded the following:

I asked the applicant why the Police would still be looking for a scapegoat after all these years in circumstances where he had not been publicly named as a suspect and at least one other person was arrested. I suggested that if the Police wanted a scapegoat, they could have used his friend for that purpose. The applicant's response was to claim that he didn’t understand why they would like to do that, but that is what they will do.

Plainly, reasoning of that kind called into question whether there was a proper basis for the alleged fear of harm.

(8)    The Tribunal then dealt with country information, particularly insofar as it related to the rally in which the applicant said he had participated that had resulted in his detention by police (paras 39 to 45).

(9)    The Tribunal then recorded the following reasons under the heading 'Credibility' (paras 46 to 54, footnotes omitted):

At the start of the hearing, the applicant indicated that a friend assisted him in completing the protection visa application, which he otherwise confirmed was true and correct. The protection visa application advises that the applicant can speak, read, and write in English.

The applicant did not apply for a protection visa immediately after the harm he claimed to have experienced. He was in Australia for over six months, where he could have done so. Further, he returned to Indonesia despite his claimed previous experiences. Even once he returned and, on his case, returned to Australia to seek protection with knowledge that police had been looking for him, he still waited for around three months before applying for protection.

I do not accept the applicant's explanation that he was hoping for or waiting for things to 'settle down' is plausible. Rather, I consider that the effect of both periods of delay and a voluntary return to Indonesia undermines the genuineness and depth of the applicant's claims to fear harm in Indonesia.

The applicant's evidence about the three days that he allegedly spent in Police detention was also vague and lacking in detail. It did not appear that he was genuinely recalling past events that happened to him. He appeared eager to move on from the topic of what occurred in Indonesia. Even allowing for the possibility that the applicant had tried to put past events out of his mind and forget them or that recalling those incidents caused significant stress to him, I am not satisfied that the description of the applicant's involvement with the police was persuasive.

I am also concerned about inconsistencies between the applicant's protection visa application and his evidence at the hearing. In his protection visa application, the applicant claimed that he 'completed' and 'passed' his university course in June 2016. That course was to become an accountant. At the hearing, the applicant claimed he was studying 'business management' and UNPI. He claimed that he commenced the course in mid-2012, which was a 4-year course. He claimed that he had one semester left to complete. When these inconsistencies were put to the applicant, he reiterated that he had not finished university and otherwise suggested that the friend who helped him with the protection visa application was responsible for the error. That said, I further note that the applicant could not advance a persuasive explanation as to why, if he started a 4-year course in June 2012, he had not completed it by June 2016 as his application indicated. Instead, he eventually claimed that he had decided to put off the last six months of his course.

That explanation did not appear at all plausible in the circumstances. I do not accept that explanation. The applicant's protection visa application is silent as to whether the Police at his university was looking for him or whether he had attended the demonstration with friends from the university. He provided a narrative to the Tribunal, which relied on his continued involvement with his university regarding attendance at the demonstration and, subsequently, with police looking for him.

The information in the applicant's protection application was information provided voluntarily. He had no reason, at that stage, to misrepresent his completion of university in June 2016. Whilst I am conscious that it is not unreasonable for a person to enlist assistance from a friend, I am not satisfied that the inconsistencies between the applicant's protection visa application and his evidence at the hearing are adequately explained on the basis that his friend made various errors which were not picked up by the applicant. That is particularly so where, at the commencement of the hearing, the applicant proactively sought to correct a reference to 'Christian police' to ensure that I understood he was referring to police more generally.

Moreover, the overall narrative advanced by the applicant was inherently implausible. The applicant repeatedly claimed that he could 'not understand' why certain things did or did not occur when the inherent implausibility of his claims were put to him. I put to the applicant that the combination of his release by police, his ability to freely depart Indonesia, his voluntary decision to return to Indonesia, the lack of any warning from his family of adverse police attention and his ability to freely return and subsequently depart Indonesia without attention may more readily be explained on the basis that Police did not, and never had, any adverse interest in him. The applicant responded only to claim that he was telling the truth.

Overall, I do not consider the applicant a credible witness. I approach his evidence with considerable caution.

(emphasis added)

17    The highlighted portion quoted above is para 53 of the Tribunal's reasons. As will emerge, it assumed significance for the way the case was put to the primary judge.

18    The above reasoning addressed the statutory task of determining the credibility of the applicant's account. It explained why aspects of the account were considered by the Tribunal to be implausible or otherwise to be questioned. It did not rest on isolated points. It dealt with the whole of the account. It did not take minor aspects of the applicant's account and use those aspects to reject the whole of the applicant's account.

19    The Tribunal then dealt with the question whether the appellant faced a real chance or serious harm. In the course of doing so, the Tribunal reasoned as follows (para 58):

That said, I do not accept that:

(a) Police arrested him;

(b) Police detained him for three days or any period whatsoever;

(c) he was punched and kicked by Police;

(d) he was of any adverse interest to the Police;

(e) Police were looking for the applicant following his departure in November 2016 or

subsequently, whether at his home university or anywhere else; or

(f) he is of any adverse interest to the Police whatsoever;

20    Plainly, the above paragraph must be considered in the context of the earlier reasoning. It did not stand alone. The reasoned basis for the statement by the Tribunal that it did not accept each of the listed matters is to be found in its earlier detailed reasoning as to why the evidence of the appellant was to be approached with considerable caution.

The grounds of review before the primary judge

21    Before, the primary judge, the grounds of the application took the form of a list of alleged implausible or inconsistent findings made by the Tribunal that were introduced by the following overall claim:

The Tribunal made numerous implausibility or inconsistency findings which were unreasonable, and then relied on these perceived implausible/inconsistent occurrences to form an adverse view about the applicant’s credibility at [53]

22    The ground then stated:

a    At [53] the Tribunal found material aspects or the whole of the factual account was inherently implausible or inconsistent.

b    The Tribunal pointed out that the claims were implausible because the applicant answered he could ‘not understand’ why certain things did or did not occur.

c    That appears to be reference for example to the following:

The applicant not claiming asylum in Australia in the first instance;

the applicant returning to Indonesia 7 months after detainment;

third parties such as the friend making errors in the application including university start date, or his relatives (wife and brother) failing to inform him about adverse attention from the authorities in Indonesia.

d    The applicant had no control over his impressions about the future, or the conduct of third parties.

e    None of the above assertions were inherently implausible, or inconsistent.

f    The conclusions were based on unwarranted assumptions and lacked a proper evidentiary foundation.

g    The Tribunal was required to give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. CQG15 v Minister for Immigration and Border Protection.

h    Credibility findings, like all findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31].

i    The error is material on the basis of the findings at [54] effectively rejecting the credibility of the applicant, and the brevity in the reasons at [58].

23    As has been explained, an adjudication as to whether the factual matters that were advanced by the appellant were to be accepted as a credible factual account was part of the Tribunal's task. There was a basis for the Tribunal to conclude, as it did, that the factual account given was implausible or inconsistent. The reasoning did not depend upon minor matters. The Tribunal did not reach conclusions as to implausibility on the basis of unwarranted assumptions of without evidentiary foundation.

24    The primary judge went through the reasons given by the Tribunal to determine whether the conclusions of implausibility and inconsistency lacked any rational basis or whether they were trivial. His Honour demonstrated that there was a logical and sufficient foundation for the adverse finding made by the Tribunal as to the appellant's credibility.

25    Respectfully, the primary judge was correct, for the reasons he gave, to reach the conclusion at [27]-[28] (already quoted above) and to do so on the basis that the findings at para 58 of the Tribunal's reasons were based on its earlier reasoning. It follows that the appeal must be dismissed with costs. The Minister sought an order for costs fixed in the amount of $3,000. I am satisfied that the amount is reasonable taking into account the relatively narrow compass of the issues raised.

26    Finally, I observe that a decision is either unreasonable for the purposes of demonstrating jurisdictional error or it is not. Issues of materiality do not arise where the ground of review advanced as the basis for a claim of jurisdictional error is legal unreasonableness: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [6] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot and Beech-Jones JJ).

Associate:

Dated:    20 October 2026