ABC19 v Minister for Immigration and Citizenship - Protection Visa Appeal

Original Word Document (135.5 KB) Federal Court of Australia

ABC19 v Minister for Immigration and Citizenship [2026] FCA 449

| Appeal from: | ABC19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 214 |

| File number: | NSD 291 of 2023 |

| Judgment of: | YOUNAN J |

| Date of judgment: | 21 April 2026 |

| Catchwords: | MIGRATION – appeal from decision of Federal Circuit and Family Court of Australia (Division 2) dismissing an application for judicial review – Administrative Appeals Tribunal affirmed decision of the Minister’s delegate not to grant appellant a Protection (Class XA) (Subclass 866) visa – appellant feared return to Bangladesh due to conversion from Islam to Christianity – adverse credibility finding in relation to activities in Bangladesh – no independent consideration of the possibility of conversion in Australia – failure to consider whether basis of witnesses’ belief could affect Tribunal’s assessment of credibility – no reasonable apprehension of bias – failure to comply with ss 414 and 425 of the Migration Act – appeal allowed |

| Legislation: | Migration Act 1958 (Cth) ss 5J, 36(2)(a), 36(2)(aa), 65, 414, 424A, 425, 427(1)(a), 427(6), 476 |

| Cases cited: | ABC19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 214

AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317

AZU15 v Minister for Immigration and Border Protection [2016] FCAFC 74; 240 FCR 143

Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41; 288 FCR 218

Comcare v Fiedler [2001] FCA 1810; 115 FCR 328

CZBH v Minister for Immigration and Border Protection [2014] FCA 1023

DBD16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 362

DHQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 178

DWP17 v Minister for Immigration and Border Protection [2019] FCA 160

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326

Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 111 ALD 15

Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507

Minister for Immigration & Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118; 88 ALD 304

NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121

Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue [1994] FCA 367; 50 FCR 405

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 279 CLR 148

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425

Singh v Minister for Home Affairs [2019] FCA 1790

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

SZFDE v Minister for Immigration [2007] HCA 35; 232 CLR 189

SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; 172 FCR 1

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

VFAB v Minister for Immigration and Multicultural Affairs [2003] FCA 872; 131 FCR 102 |

| Division: | General Division |

| Registry: | New South Wales |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 102 |

| Date of hearing: | 25 March 2026 |

| Counsel for the Appellant: | Mr C Honnery (direct access) |

| Counsel for the First Respondent: | Mr T Reilly |

| Solicitor for the First Respondent: | Mills Oakley Lawyers |

| Counsel for the Second Respondent: | The Second Respondent filed a submitting notice |
ORDERS

| NSD 291 of 2023 |

| BETWEEN: | ABC19

Appellant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | YOUNAN J |
| DATE OF ORDER: | 21 April 2026 |
THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Orders 2-3 of the orders of the Federal Circuit and Family Court of Australia (Division 2) made on 22 March 2023, be set aside.

3. In lieu thereof, the following orders be substituted:

(a) The application be granted.

(b) The first respondent pay the applicant’s costs of the proceeding, as agreed or taxed.

1. The appellant’s application be remitted to the second respondent for hearing and determination according to law.

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

3. The name of the second respondent be changed to “Administrative Review Tribunal”.

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

REASONS FOR JUDGMENT

YOUNAN J:

1 By notice of appeal filed on 30 March 2023, the appellant appeals from the decision of Judge Humphreys in the Federal Circuit and Family Court of Australia (Division 2) (FCFC O A) on 22 March 2023, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal: ABC19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 214 (primary judgment or PJ). By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Protection (Class XA) (Subclass 866) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (Tribunal ’s decision or T D).

2 The appellant’s complaint relates to the manner in which the Tribunal conducted the review of the delegate’s decision, which the appellant claims gives rise to apprehended bias, failure to afford a fair hearing, and failure to engage with the appellant’s submissions and evidence in an active intellectual process.

3 For the reasons that follow, I am satisfied that the appellant has established Grounds 2 and 3 of the appeal.

FACTUAL BACKGROUND

4 The factual background to this matter is summarised in both the primary judgment and the Tribunal’s decision. It is necessary only to recite those facts which are relevant to this appeal.

5 The appellant is a citizen of Bangladesh. He arrived in Australia on 16 February 2015 on a Tourist visa (Subclass FA 600).

6 On or around 31 March 2015, the appellant applied for a protection visa. The appellant claimed that he would be at risk of serious or significant harm if he were returned to Bangladesh due to his conversion to Christianity, which he claims commenced in Bangladesh and continued after his arrival in Australia. The application was refused by a delegate of the Minister on 20 October 2015.

7 On 5 November 2015, the appellant applied to the Tribunal for merits review of the delegate’s decision. The Tribunal hearing was held over the course of two days, after which the Tribunal invited the appellant (under the now repealed s 424A of the Migration Act) to comment on matters raised at the hearing.

8 The Tribunal found, inter alia, that the appellant was not a truthful or credible witness. It did not accept that the appellant had any involvement with Christianity at any time in Bangladesh, nor that he fled to Australia to avoid harm in Bangladesh after being attacked and assaulted as a consequence of his interest in Christianity. While the Tribunal accepted that the appellant was baptised and attended church in Australia, it found that he had done so only to gain residency in Australia.

9 The Tribunal was not satisfied that the appellant had a well-founded fear of persecution within the meaning of s 5J of the Migration Act, nor that he faced a real risk of significant harm if returned to Bangladesh.

10 On 17 December 2018, the Tribunal affirmed the delegate’s decision. The Tribunal found that the appellant did not meet the refugee criterion in s 36(2)(a), nor the alternative criterion in s 36(2)(aa), of the Migration Act.

11 On 7 January 2019, the appellant applied to the FCFCOA seeking review of the Tribunal’s decision under s 476 of the Migration Act. By an amended originating application filed on 6 May 2021, the appellant advanced three grounds of appeal, being that the Tribunal: (i) was affected by apprehended bias; (ii) failed to afford the appellant a fair hearing; and (iii) failed to carry out its statutory task of reviewing the primary decision under s 414 of the Migration Act.

12 The primary judge found there to be no merit in any of those grounds, which are now replicated on appeal.

GROUNDS OF APPEAL

13 The appellant contends that the primary judge erred by failing to find that the Tribunal:

(1) exhibited apprehended bias against the appellant by its conduct during hearings convened by the second respondent;

(2) failed to comply with its obligation under s 425 of the Migration Act to provide the appellant with a fair hearing or opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review; and

(3) failed to carry out the required statutory task of reviewing the decision of the first respondent under s 414 of the Act by failing to engage in an active intellectual way with the submissions and evidence provided by the appellant apropos the genuineness of his conversion to Christianity in Australia.

14 Notwithstanding the reference to the errors of the “first respondent” in the notice of appeal, it is evident that the appellant impugns the conduct of the second respondent (the Tribunal).

15 While the grounds of appeal are independent of one another, they relate to the same factual matrix.

Ground 1 – Apprehended bias

The test for apprehended bias

16 The test for apprehended bias is whether a fair-minded lay observer properly informed as to the nature of the proceeding, the matters in issue and the relevant conduct, might reasonably apprehend that the Tribunal might not have brought an impartial mind to the determination of the matter on its merits: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[28]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 6; Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218 at [35].

17 The test is one of objective possibility: Ex parte H at [28]. Where apprehended bias is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact (i.e., there is no materiality threshold): LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [6].

18 When applied in a non-curial context, the rule must account for the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings. Regard must be had to the applicable statutory provisions, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned: Ex parte H at [5].

19 The test for apprehended bias entails three steps: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 at 38.

20 The appellant identified the species of apprehended bias as one of prejudgment, in the sense of reaching a fixed conclusion before completion of the evidence: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [27].

21 It is well-accepted that vigorous testing of evidence and frank exposure of its weaknesses is permissible in inquisitorial proceedings, even with unrepresented parties, but there will be error if a fair-minded lay observer or properly informed lay person might infer that there is nothing a witness could say or do to change a tribunal’s preconceived view: Singh v Minister for Home Affairs [2019] FCA 1790 at [36], citing Ex parte H at [31]-[32].

22 In the present case, the appellant does not rely on the vigorous testing of evidence, but rather the foreclosing of evidence by the failure of the Tribunal to pursue a specific line of enquiry to which its attention was brought.

23 It was not in contest that more must be shown than a mere predisposition of the Tribunal to a particular view; it is necessary to show a decision-maker’s mind is not open to persuasion: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-532 (Gleeson CJ and Gummow J).

The conduct of the Tribunal hearing

24 The appellant submits that the character of the Tribunal’s exchanges with the witnesses and the appellant’s representative, its approach to taking evidence, and its inquisitorial role, are factors relevant to the assessment of apprehended bias: Chen at [38], [50].

25 Centrally, the appellant submits that the Tribunal failed to explore the factual foundation of the witnesses’ belief as to the genuineness of the appellant’s claimed conversion to Christianity, thereby confirming that it had prematurely resolved the “credit question”, and that its mind was closed to persuasion by corroborative witness evidence that might disturb that resolution: see, e. g., AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at 85; CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 at [57]-[63], in circumstances where the failure to obtain oral evidence was held to be legally unreasonable. While this submission might suggest actual bias on the part of the Tribunal, I have not understood that to be the appellant’s claim.

26 The appellant does not put in issue the adverse credibility findings regarding the appellant’s account of his involvement with Christianity in Bangladesh. As explained below, it is those findings that appear to inform the Tribunal’s assessment of the genuineness of the appellant’s conversion (TD [195]), although the Tribunal expressly considers the possibility that the appellant became a genuine Christian some time after he began attending church in Australia: TD [196]. It is here that the proposed evidence of the appellant’s witnesses is said to be relevant.

Transcript of the hearing

27 The appellant identifies examples of the Tribunal’s conduct in the hearing transcript and submits that their cumulative effect - to which it is claimed the primary judge failed to give adequate weight - gives rise to a reasonable apprehension of bias.

28 Those examples are contained in the table below:

| | T ranscript |
| 1 | MEMBER: No. So, would I be right in assuming that you both know him from the church here in Australia?

WITNESS DASS: Yes.

WITNESS DIAS: Yes.

MEMBER: Yes. Would I be right in assuming that you’re here to tell me that he attended the church here in Australia?

WITNESS DASS: Yes.

WITNESS DIAS: Yes.

MEMBER: Yes. Well, I certainly accept that he attended the church here in Australia, so I’m not sure that I need to take your evidence because it would appear that you’re simply going to tell me something that – that I accept. So, let’s see how we go, but this is – this hearing is going to take quite a long time, so given that I already accept what appears to be the only relevant evidence that you have, which is that he’s been attending church in Australia, it’s up to you - - -

REPRESENTATIVE: Not only that, Member. You know, just not simply having the – the church. But, the evidence from them is very, very significant, because they can, you know, confirm to the Tribunal, from their perspective, what the – the opinions of - - -

MEMBER: Yeah, well, I’m not sure how relevant that’s going to be. Let’s wait and see.

REPRESENTATIVE: Yes.

MEMBER: Certainly, I’m not going to take evidence from them until I’ve taken all of the other evidence.

REPRESENTATIVE: Yes.

MEMBER: And, then, perhaps we can see whether it – it does actually have any particular relevance. I certainly accept that your client attended church here, and I accept that probably most of the people he attends church with accept that he’s a genuine member of the church. That’s their opinion.

REPRESENTATIVE: Yeah. I mean, from their perspective.

MEMBER: From their perspective.

REPRESENTATIVE: If you have - - -

MEMBER: Okay. No, thank you, I don’t want to go any further with that. We’ve got a lot to get through. |
| 2 | WITNESS: Okay. It’s just a question for my side. Do we have to come [4:15:38]?

MEMBER: You – well, as far as I’m concerned I have no questions for you. I suggest that you speak to Mr Hoque and his representative. We’ll see where we go from there.

WITNESS: So, I just [4:15:51] don’t think we need – we need to come?

MEMBER: Well, I don’t need you. As far as I’m concerned I have nothing to ask you.

WITNESS: Okay.

MEMBER: But, as I say, I’d – I’m sure that Mr Hoque’s representative will talk to you about any further hearings, if need be.

APPLICANT: We can leave?

MEMBER: Yes. Yes, you can. Absolutely. |
| 3 | MEMBER: Okay. And, you’ve asked again that I take evidence from a number of witnesses here in Australia, and also in Bangladesh. So, I’ll talk about the people in Bangladesh later, but the people from Australia, as far as I’m aware, none of them knew you in Bangladesh, is that correct?

APPLICANT: They cannot say, no.

MEMBER: No.

APPLICANT: No.

MEMBER: And, their purpose is to tell me that you have been baptised and are attending church in Australia, is that correct?

APPLICANT: Yeah.

MEMBER: Well, I accept that you have been baptised, and that you’re attending church in Australia, and I have no other questions for your witnesses. So, I’m not entirely sure what it is that you want them to tell me. I mean, they appear to be going to tell me something that I already accept, and in those cases it’s usually not worth taking the evidence. But, obviously, I don’t want to refuse to take evidence that’s going to be of any value, so I’m trying to understand what – what it is you think they can – can tell me that’s – that would be important for me to understand.

APPLICANT: Yeah, with that – those witness I just want to prove that, like, I usually go to church for prayer on a regular basis. They going to be my witness, and they will be the witness of my activity on time to time, regularly I’m attending church, that’s all.

MEMBER: I accept all of that, so I don’t really need their evidence. Can you assist here, is there - - -

REPRESENTATIVE: Yes. Sure, sure.

MEMBER: - - - anything that I’m missing?

REPRESENTATIVE: Sure. Yeah. I mean, the – you know, these kind of cases, you know, one of the issues is the – the credibility of the – the conversion, and they have the personal knowledge of the Applicant’s knowledge of, you know, on Christianity, possibly. And – and, also, you know – you know, from their perspective because they are born Christians, and, you know - - -

MEMBER: Okay.

REPRESENTATIVE: - - - [0:06:14] and, you know, they – they have been in the church for a long time. And, when a person comes to the church, you know, they need to assess - - -

MEMBER: Okay. Well - - -

REPRESENTATIVE: So, those kind of - - -

MEMBER: Okay. I – I accept that your client, after this long in Australia going to church, has a reasonable understanding of Christianity. I accept that his fellow church-goers accept that he is a Christian. Clearly, it’s still my job to make my own assessment on these issues.

REPRESENTATIVE: Yes.

MEMBER: But, I accept that, so I just don’t see what the point of - - -

REPRESENTATIVE: Yeah.

MEMBER: - - - taking evidence of - - -

REPRESENTATIVE: And, not only attending the church, Member, because they can shed some, you know, personal knowledge of him, why they believe that, you know - - -

MEMBER: So, you want them to give character references?

REPRESENTATIVE: Not character, no.

MEMBER: Well, what then?

REPRESENTATIVE: But, good – good – good person, correct, but it’s about his, you know, Christianity. Why – why - - -

MEMBER: No, I just told you I accept that they believe that he is a genuine Christian, so what more is there?

REPRESENTATIVE: Okay. If – and, also – yeah, if - - -

MEMBER: But, that – you need to be clear, that does not necessarily mean – I mean, I still make my own assessment on these things.

REPRESENTATIVE: Sure. Sure. Sure. Sure.

MEMBER: So, I just want to be clear on that.

REPRESENTATIVE: Yeah.

MEMBER: It just – you’ve got a long list of people here.

REPRESENTATIVE: Yes.

MEMBER: It’ll take up a lot of time. I have no questions for any of them.

REPRESENTATIVE: But, my submission is, you know, the refugee Applicants, they live in between life and death, and they – if any one of – I mean, because, if the – if you test – you know, if you – if you put the test of, you know - - -

MEMBER: Yeah, well, I’m going to take evidence from the two witnesses that are here, but I don’t see any point in telephoning a whole lot of other people who will tell me, presumably, the same thing.

REPRESENTATIVE: May not be, Member. They may – they may give further - - -

MEMBER: What? Look, the – you’re the representative here.

REPRESENTATIVE: Yes.

MEMBER: You’re the professional.

REPRESENTATIVE: Yes, that’s right.

MEMBER: Presumably, you know and - - -

REPRESENTATIVE: Yeah.

MEMBER: - - - understand these proceedings.

REPRESENTATIVE: Yes, that’s right.

MEMBER: If you think any of those other witnesses have something that is crucial, that would make a difference to my understanding, that won’t be told to me by these witnesses, may I suggest you should already be aware of that, and be - - -

REPRESENTATIVE: As I said - - -

MEMBER: - - - able to explain it to me?

REPRESENTATIVE: Yes, so, that’s what, Member, I explained to you.

MEMBER: You’ve already explained?

REPRESENTATIVE: I explained that, yeah, earlier, you know.

MEMBER: Which witness will have that evidence, and what would it be?

REPRESENTATIVE: I mean – I mean, the evidence – all the evidence from overseas, they will – they - - -

MEMBER: I’m not talking about overseas. None of these people knew him overseas, he’s just confirmed this.

REPRESENTATIVE: Yeah, I’m talking about the people who are - - -

MEMBER: I’m not. I told you at the beginning I’m going to talk about that later. I’m only talking now about the people in Australia.

REPRESENTATIVE: Okay. Yeah, of course. I mean, parish priest, he will be – he will give very corroborative evidence I believe - - -

MEMBER: Of what?

REPRESENTATIVE: - - - about, you know – I mean, you know, he’s – he – he’s the parish priest, and - - -

MEMBER: I understand he’s a parish priest.

REPRESENTATIVE: Okay.

MEMBER: I accept that your client goes to his church.

REPRESENTATIVE: Member - - -

MEMBER: I accept that he’s been - - -

REPRESENTATIVE: Member, you’re not - - -

MEMBER: - - - baptised.

REPRESENTATIVE: - - - allowing me – you’re not – as a representative I have an obligation to - - -

MEMBER: Okay. Tell me what it is you - - -

REPRESENTATIVE: Can you - - -

MEMBER: - - - think he’ll be able to tell me.

REPRESENTATIVE: Member, okay, I again request you to – not to interrupt me, I need to - - -

MEMBER: Tell me what you think – you think your - - -

REPRESENTATIVE: You are interrupting me when I need to tell you - - -

MEMBER: Tell me then.

REPRESENTATIVE: - - - about the best interests. Okay. About, I mean, the, you know, parish priest, he case is a – he’s in the – in the – in – in the, you know, main – main person of the church, so he knows, I mean, what kind of activities he engaged, and, you know, he can answer – he can, you know - - -

MEMBER: Okay. Just - - -

REPRESENTATIVE: Yeah.

MEMBER: I mean, you – so, you’re going to say he can assess the genuineness of his conversion, is that what you’re going to say?

REPRESENTATIVE: Yes, of course. Yeah. |
| 4 | MEMBER: Okay. What I’m going to do is I’m going to talk to these two - - -

REPRESENTATIVE: Sure.

MEMBER: - - - and the parish priest. I’m not going to call anyone else because I don’t think there’s going to be anything to be gained from that. |
| 5 | REPRESENTATIVE: Yeah. Yeah, but, one of the questions that, you know – you know, possibly you would ask them why they believe? That’s a critical question from [0:11:11] why they need to believe him? You, Member - - -

MEMBER: Yeah, I think that this is not a space - - - |
| 6 | MEMBER: And, what is it that you want to tell me?

WITNESS DASS: I was asked by the parish priest [0:12:11] to take him under my wing, because I – I [0:12:17] someone can take some genuine faith. So, I took him under my wings. So, I was really one whole year just teaching about the faith. When I finished [0:12:31] doesn’t stop [0:12:39] continue to [0:12:39].

MEMBER: Okay. So, you’ve been working - - -

WITNESS DASS: What – what I’m doing now - - -

MEMBER: Yeah.

WITNESS DASS: - - - as is totally different from that is that working with genuine faith [0:12:45].

MEMBER: Okay.

WITNESS DASS: [0:12:49] the role [0:12:50].

MEMBER: And, because of that knowledge of him you – you believe he’s a genuine Christian, is that correct?

WITNESS DASS: Yes.

MEMBER: Is there anything else you’d like to tell me?

WITNESS DASS: No, I think just working that journey with him - - -

MEMBER: Yeah. |
| 7 | MEMBER: Yeah. So, that’s what he’s told you.

WITNESS DASS: Yeah.

MEMBER: You have no personal knowledge.

WITNESS DASS: No, no. Just [0:13:27].

MEMBER: Okay. So, that’s fine.

WITNESS DASS: Yeah, that’s from that as well.

MEMBER: Yeah. Okay. That’s - - -

WITNESS DASS: [0:13:32].

MEMBER: Okay. Well, I don’t have any other questions for you.

WITNESS DASS: Thank you very much.

MEMBER: Is there anything else you would like me to ask him?

REPRESENTATIVE: No, Member. |
| 8 | MEMBER: And – and, you believe he’s a genuine Christian?

WITNESS DIAS: Yeah, because I’m the Godfather.

MEMBER: Mm hm.

WITNESS DIAS: So, I wouldn’t be the Godfather if he’s not genuine.

MEMBER: Of course. Yeah. Okay. Those are all the questions I have for you. |
| 9 | MEMBER: Okay. You know what, to avoid any possibility of any dilemma’s [sic ] down the track, despite the fact that I think it’s unnecessary, I will give them a very quick call. |
| 10 | MEMBER: And – and, you – you believe that he’s a genuine – genuine follower of the Catholic faith?

WITNESS SEBASTIAN: Yes.

MEMBER: Why do you believe that?

WITNESS SEBASTIAN: Because, sometimes he come with us with the rosary. He comes and pray with us with the rosary.

MEMBER: Okay.

WITNESS SEBASTIAN: And, with a group of the parishioners in the church.

MEMBER: Is there anything else you would like to tell me that you think might help me to understand his – his situation?

WITNESS SEBASTIAN: Yeah, I’ve known James, as what I said, for a couple of years. He’s a very devoted Catholic, and he help a lot in the church. And, what I can see his situation right now we feel that, you know, if it – it’s – the situation’s not – you know, it’s not going right, then we feel very bad for him. So, yeah. |
| 11 | MEMBER: You're welcome to make oral submissions now, but it might be just as - - -

REPRESENTATIVE: Yes, Member. I think I’m – you know, I will wait for the letter.

MEMBER: Right.

REPRESENTATIVE: - - - and then – yeah. Basically, I mean, because we have provided substantial information, country information, about the persecution.

MEMBER: It would be nice to have that country information before the hearing rather than after.

REPRESENTATIVE: I did.

MEMBER: No, well, I thought you meant you had more.

REPRESENTATIVE: No, I said we have provided.

MEMBER: I see. [2:22:14].

REPRESENTATIVE: [2:22:13].

MEMBER: Yes. I note I have your information, and of course I’ll take account of that. What I should also alert you to today, though, is, as I say, I’m still considering your claims. I do have problems with some of them. If that were lead – to lead me to the view that you had converted to Catholicism – or, been baptised, rather – let me rephase that, that you had been baptised and attended church here in Australia in order to gain a visa, I would then be required to ignore all of that activity when I looked at whether or not you were a refugee. I would still need to take account of it when I looked at whether or not you met the complementary protection criteria. Now, I’m not saying I’ve reached a conclusion on that as yet, I haven’t, but I just need to alert you to that – that provision of the law so that you’re aware of it. Okay. So, that’s all for today, thank you for coming along. And, my apologies, I probably should have had a break. But, as I did warn you, I think, at the last hearing I sometimes forget. And, please, you know, speak up. But, anyway, it’s too late for that, so I think we’ve all survived. So, thank you for coming, and I’ll get those questions out to you - - - |
Audio recording of the hearing

29 The audio recording of the hearing before the Tribunal was exhibited to the affidavit of Conrad Nicholls affirmed on 25 March 2026. The Court was invited by the appellant to listen to the first 29 minutes of the second day of the hearing, and to draw certain inferences from the tone and demeanour of the Tribunal in conducting the review. The primary judge accepted a similar invitation: PJ [57].

30 The Minister did not object to this course, although the parties agreed that such an exercise (and the conclusions drawn therefrom) should proceed from an assessment of parts of the recording in the context of the review as a whole.

31 As it was accepted that a finding of apprehended bias will not be sustained by occasional displays of impatience and irritation (VFAB v Minister for Immigration and Multicultural Affairs (2003) 131 FCR 102 at [81]), whether justified or not, the question arose as to what assumptions or inferences the Court could reliably draw from the perceived tone of the Tribunal’s questioning of the witnesses and the appellant’s representative.

32 It is one thing to identify the perceptible tone or demeanour of the Tribunal, which itself is subject to individual interpretation, and another to draw inferences about the Tribunal’s state of mind from those perceptions (from the perspective of the fair-minded lay observer). At the hearing of the appeal, I expressed my reservations about doing so. Such inferences are often supported by further general assumptions as to the meaning of that tone or demeanour. With that in mind, in reviewing the audio-recording, I did not discern anything in the tone or demeanour of the Tribunal that altered my assessment of the Tribunal’s conduct of the hearing as evidenced in the transcript.

The primary judge’s findings

33 In response to the complaint that the Tribunal did not direct the witnesses’ attention to the relevant issue in question, the primary judge held that there was no general obligation on the Tribunal to investigate an applicant’s claims: PJ [74], citing Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25]. The primary judge did not accept that a fair-minded lay observer properly informed as to the nature of the proceeding would reasonably apprehend that the Tribunal may not bring an impartial mind in determining the application for review: PJ [75].

34 The primary judge held that even though the Tribunal questioned the relevance of additional evidence being called on matters it clearly accepted, the Tribunal “went ahead and heard that evidence”, which was supportive of the proposition that the Tribunal was prepared to give the appellant every opportunity to make his case: PJ [76]. The primary judge held further that the majority of that evidence was either not helpful at all to the issue in question, or merely confirmed what the Tribunal had already indicated it was prepared to accept.

35 At this stage, I observe that, in my view, this misses the point. The appellant’s complaint is that the Tribunal’s conduct of the hearing affected the evidence, which I take to be a reference to the evidence that was actually given and the evidence that might potentially have been given. I accept that the evidence actually given by the witnesses confirmed what the Tribunal already accepted; viz., that the witnesses believed that the appellant was a genuine Christian.

36 The primary judge concluded that the appellant’s complaints seek to portray the Tribunal member “in the worst possible light”, are unjustified and not supported by the totality of the evidence: PJ [77]. The primary judge relied on the Tribunal member’s statement at the end of the hearing that she had not yet reached a conclusion as to whether the appellant was a genuine convert to Catholicism. The primary judge considered this to be a definite indicator that the Tribunal’s mind was open to persuasion, and that it had not reached a conclusion prior to the end of the hearing: PJ [78].

37 The first respondent submits that the primary judge applied the correct test for apprehended bias and was correct to conclude that apprehended bias was not demonstrated. The first respondent says that the transcript must be viewed in its entirety (see e.g., Singh at [37]), and that, in context, the passages impugned by the appellant indicate nothing more than occasional displays of impatience and possibly irritation by the Tribunal member. The first respondent contends that the Tribunal was entitled not to spend more time hearing some of the witnesses’ evidence as to the appellant being a Christian, which the Tribunal was prepared to accept. This puts the matter simply and, as I have observed, does not address the appellant’s claim.

38 In any event, the Minister submits that the Tribunal ultimately heard from the witnesses; the representative did not intervene or request that further or additional questions be asked; and several of the witnesses did not “offer much”. The Minister does not accept that the Tribunal’s examination of witnesses was terse or perfunctory. In the end, I have not found such characterisations of the Tribunal’s conduct to be helpful.

39 The appellant submits that the primary judge erred by:

(1) treating the length of the Tribunal’s decision as answering the complaint of apprehended bias: PJ [51]; DWP17 v Minister for Immigration and Border Protection [2019] FCA 160 at [16];

(2) relying on the Tribunal member’s statement that she had not “reached a conclusion” (PJ [78]), a self-assessment which is both contrary to the objective test for apprehended bias and undermined by the Tribunal’s conduct over the course of the hearing;

(3) improperly characterising the legal representative’s role as “entirely passive”, in circumstances where the representative had no formal right to represent the appellant (Migration Act s 427(6); DHQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 178 at [63]-[67]) and within the inquisitorial context of a Tribunal hearing: Minister for Immigration & Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304 at [36]; and

(4) relying on the fact that the Tribunal ultimately heard the evidence, which is not an answer to the complaint of apprehended bias: LPDT at [6].

40 As explained below, I accept that the length of the hearing, and the fact that the Tribunal ultimately heard from the witnesses, does not take the analysis very far. Otherwise, I agree with the primary judge’s finding that the appellant’s assessment of the Tribunal’s conduct is not supported by the totality of the evidence.

The role of the appellant’s representative

41 I accept that the appellant’s representative did not take an “entirely passive” role in relation to the questions that were to be asked of each witness (PJ [73]), in the sense that the representative sought to assist the Tribunal with relevant lines of enquiry. Furthermore, the representative’s participation in the hearing must be viewed vis-à-vis the Tribunal’s conduct of the hearing.

42 In commenting on the Tribunal’s conduct of the hearing, the appellant relies on the proposition that the representative had no right to formally represent the appellant. In response, the Minister observed that s 427(6) of the Migration Act applied only to third party witnesses: DHQ18 at [65].

43 The question of a formal right to represent the appellant is a distraction. While the Tribunal’s process is inquisitorial, and “[o]nly the tribunal can examine a witness whose oral evidence the Tribunal has determined to obtain” (Maltsin at [36]), the Tribunal can nevertheless (as it did in this case) seek the assistance of the applicant’s representative in explaining the relevance of the evidence to be given and in questioning the witnesses. While that participation cannot alter the role and function of the Tribunal, any inferences to be drawn from the Tribunal’s conduct of the hearing will be informed by the assistance the Tribunal does (or does not) receive. It is part of the factual matrix of what transpired at the hearing. The complexion of certain conduct may change depending on whether it is action or reaction.

Conclusion: no reasonable apprehension of bias

44 The appellant has identified the factor which he says might lead the Tribunal to resolve the question other than on its legal and factual merits. It is prejudgment as to the appellant’s credibility as inferred from the Tribunal’s conduct and demeanour, demonstrated in the passages recited in the table at paragraph [28] above, and by the audio recording of the hearing.

45 The appellant has articulated a logical connection between that factor and the apprehended deviation from deciding the question (of the appellant’s credibility in relation to his claimed conversion to Christianity) on its merits. That connection is inherent in the species of bias claimed. The question then arises as to whether an apprehension of bias arising from the Tribunal’s conduct of the hearing is reasonable from the perspective of a fair-minded lay observer.

46 Considering the passages in their immediate and broader context, I conclude that it is not. This is because the Tribunal’s exchanges with the witnesses and the appellant’s representative suggest that the Tribunal’s conduct was informed by a view (the correctness of which will be addressed further in relation to Ground 2 of the appeal) that additional evidence as to the belief of the witnesses was of little utility, and therefore could not assist the Tribunal member in forming her own view as to the credibility of the appellant’s claim. I do not consider that an apprehension that the Tribunal member had already formed her own view reasonably arises from those exchanges.

47 The Tribunal member repeats her view that the anticipated evidence is only going to affirm that which she accepts: viz., that the witnesses believe that the appellant is a “genuine Christian”. The Tribunal member repeats that it is her function to make her own assessment, and states that she has not yet reached a conclusion on that issue. That statement is preceded by several attempts to elicit what the Tribunal considers to be relevant evidence. Those attempts include making phone calls to witnesses who were not present at the hearing; repeated questioning of the appellant’s representative as to the relevance of the proposed evidence; and affording the appellant’s representative an opportunity, expressly in relation to one witness, to suggest further questioning (although I accept that the response to that opportunity should be viewed in light of earlier exchanges with the Tribunal). It also included extending the hearing to two days, once it became apparent that the first day would not be sufficient to canvass the evidence.

48 I do not accept the appellant’s submission that those attempts should be dismissed on the basis that the Tribunal foreshadowed the possibility of “dilemma[s]” were it to decline to call the appellant’s Australian witnesses by telephone. Nor do I accept that the calls with witnesses were quick and, at times, perfunctory. The Tribunal’s conduct in that regard reflects the scepticism that the Tribunal expressed as to the utility of the proposed evidence. In the same way that a predisposition is not sufficient to show that a decision-maker’s mind is not open to persuasion, the Tribunal’s scepticism is not antithetical to an open mind.

49 A closed mind as to the credibility of the appellant is not to be mistaken for taking a particular view as to the utility of certain evidence in assessing the “credibility issue”.

50 I accept that the Tribunal, at times, pre-empted the evidence of the witnesses and interrupted the submissions of the appellant’s representative, thereby potentially limiting both. The fact that those interruptions may appear to the reasonable bystander to be terse or impatient does not alter the analysis: VFAB at [81]. A reasonable bystander would view that conduct in light of the Tribunal’s professed understanding of the utility of the proposed evidence of the witnesses’ belief that the appellant was a genuine Christian. As explained further in relation to Ground 2, that understanding was misconceived.

51 The conclusion of the primary judge that the appellant had not demonstrated apprehended bias is informed by a number of findings that pertain also to Ground 2. I find that there is no error in the primary judge’s conclusion on Ground 1, although, as explained below in relation to the second ground of appeal, I do not embrace the entirety of those findings.

Ground 2 – Tribunal’s obligation under s 425

The requirements of procedural fairness

52 The appellant submits that the Tribunal failed to comply with s 425 of the Migration Act, which requires the Tribunal to afford a meaningful opportunity to present evidence and arguments at the hearing about the issues arising in the review: Minister for Immigration and Border Protection v Singh [2014 ] FCAFC 1 at [51]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [61]. The “issues arising” for the purposes of s 425(1) encompass all matters not of an insubstantial nature which the Tribunal considers to be in question: SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 at [115].

53 Section 425, under the (now repealed) Div 4 of Pt 7 of the Migration Act, was in the following terms at the time of the Tribunal’s decision:

425 Tribunal must invite applicant to appear

(1)     The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)     Subsection (1) does not apply if:

(a)     the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)     the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)     subsection 424C(1) or (2) applies to the applicant.

(3)     If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

54 Section 422B(1) of the Migration Act provides that Div 4 of Pt 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: SZFDE v Minister for Immigration (2007) 232 CLR 189 at [31]. The failure to comply with s 425 will have the effect of subverting the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review: SZFDE at [32].

55 The requirements of procedural fairness depend on the particular factual and statutory context: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 30.

56 The intention of the legislative scheme is that the evidence of witnesses proposed by an applicant should be part of the s 425 hearing process: AYX17 at [45]. The Tribunal cannot permit the parties to place it in the position of deciding a case on an artificial or inadequate factual basis: Comcare v Fiedler (2001) 115 FCR 328 at [39]-40.

57 The failure to accord procedural fairness will amount to jurisdictional error if the appellant can show that the error deprived him of a realistic possibility of a different outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45]. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on a critical issue: Nathanson v Minister for Home Affairs (2022) 276 CLR 80 at [33].

The utility of the proposed evidence

58 The appellant’s reliance on DBD16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 362 is apposite in explaining the utility of the proposed evidence. In that case, the Tribunal struggled to accept that the applicant was a genuine Christian convert when it took into account its concerns about the applicant’s credibility arising from inconsistencies in the applicant’s account of events upon which his claims were based. The Tribunal did not accept that support from a Reverend attesting to his belief that the applicant was a genuine Christian convert demonstrated that the applicant was a genuine convert in fact: DBD16 at [55]-[56]. The Tribunal’s position was that any oral evidence taken from the Reverend could not have influenced the adverse view it had formed of the applicant’s credibility founded on the information provided in respect of his other claims: DBD16 at [57]-[58]. On that basis, the Tribunal refused the applicant’s request to take evidence from the Reverend in exercise of its power under s 427(1)(a) of the Migration Act. On review, Feutrill J held that this amounted to jurisdictional error: DBD16 at [71].

59 For present purposes, what is significant in that decision is the distinction drawn between a “bald statement of belief”, which would not assist the Tribunal for the reasons it gave, and the facts, matters and circumstances supporting that belief, which may be of considerable relevance and importance to determining if that belief has a proper foundation, and therefore should be accepted: DBD16 at [59].

60 The Minister distinguishes this case from DBD1 6. The Minister argues that, in the present case, the Tribunal held two hearings, and the appellant was under no misapprehension as to the central issue. The Tribunal summarised the evidence of the relevant witnesses and accepted that evidence. Even so, I find that the question remains whether the appellant was afforded a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.

The Tribunal’s approach to the evidence

61 The Tribunal’s reasons do not show that consideration was given to the potential for evidence of the factual foundation for the witnesses’ belief (that the appellant had genuinely converted to Christianity) to inform the Tribunal’s assessment of the appellant’s credibility regarding his claimed conversion: see DBD16 at [61]. Although the Tribunal believed that the appellant had arrived in Australia intending to remain permanently and concocted the claim that he had converted or intended to convert to Christianity and began to attend church solely in order to support his application for protection (TD [195]), there was a distinct and separate possibility that the appellant became a genuine Christian some time after he began attending church in Australia. As much is acknowledged by the Tribunal: TD [196].

62 The absence of apparent consideration in the Tribunal’s reasons of the relevance of the factual foundations of the witnesses’ belief, is not surprising. There is nothing to suggest that it was a matter of practical difficulty: cf. DBD16 at [62]; CZBH at [59]. The Tribunal stated that, as it advised the appellant at the hearing, it accepted that since arriving in Australia the appellant had been baptised, attended church on a reasonably regular basis, and that the priest and parishioners at his local church believed him to be a genuine convert to Christianity: TD [195].

63 For the Tribunal, the relevance of this evidence ends here. This is evident from the passages in the transcript extracted in the table at paragraph [28] above. As the Tribunal member asks rhetorically: “ I just told you I accept that they believe that he is a genuine Christian, so what more is there? ”

64 The appellant attempted to explain the relevance of the evidence of the witnesses he proposed to call, as attesting to his regularly attending church for prayer. As the Tribunal member responded: “ I accept all of that, so I don’t really need their evidence. ”

65 The appellant’s representative went further to explain the relevance of the evidence as being one of “why they believe” that the appellant is a genuine convert. The Tribunal understood the utility of the evidence to be by way of character reference, which characterisation was rejected by the representative.

66 The transcript records the representative’s objections to the frequent interruptions of the Tribunal on the basis that the Tribunal was not allowing the representative to develop his submission. In the midst of that exchange regarding the relevance of the proposed evidence, the Tribunal asked: “ … so, you’re going to say [the witness] can assess the genuineness of his conversion, is that what you‘ re going to say? ” The representative responded affirmatively. At that point, the Tribunal member indicated that she would speak to three witnesses, including the parish priest, but not anyone else: “ because I don’t think there’s going to be anything to be gained from that. ”

67 It is evident from this exchange that the Tribunal member considered that the witnesses’ assessment of the genuineness of the appellant’s conversion was of no assistance to her. This is reinforced in the treatment of the basis of that view, to the extent that it was elicited from the witnesses, in the Tribunal’s reasons. In that regard, it should be noted that notwithstanding that the Tribunal dismissed the relevance of “why” the witnesses held their belief, the Tribunal member did ask one witness (Sebastian): “ Why do you believe that? ” Similarly, the Tribunal member asked a pre-emptive question of one witness (Dass) as to the reason the witness believed the appellant was a genuine Christian: “ … because of that knowledge of him you - you believe he’s a gen u ine Christian, is that correct?” The Tribunal proceeded with an open-ended question (also in relation to witness Sebastian): “ Is there anything else you’d like to tell me? ”

68 However, this is in a context where the Tribunal had been asked by the appellant’s representative to ask the witnesses why they believe the appellant is a genuine Christian, and the Tribunal member had indicated that the basis of that belief was of no assistance in her assessment of the appellant’s credibility. That view is reflected in the Tribunal’s reasons, where the Tribunal recites the evidence of the witnesses (TD [127]-[133]), including the basis of their belief, but demonstrates no consideration of the relevance of that factual basis to its assessment of the genuineness of the appellant’s conversion in Australia. Rather, it is discounted.

69 While some of that foundational evidence was elicited from the witnesses, the Tribunal member conducted the hearing on the basis that such evidence could not assist her because it was her belief (or assessment) that was relevant. That the witnesses cannot assess the genuineness of the appellant’s conversion for the Tribunal, does not negate the utility of the factual basis of their belief to the Tribunal’s assessment.

70 As the appellant’s representative explained, a “critical question” in that assessment is why the witnesses believe as they do. It is critical because it is the only basis upon which the Tribunal can assess the genuineness of the appellant’s activities in Australia, aside from the adverse credibility finding in relation to the appellant’s activities in Bangladesh. In the absence of that foundational evidence, the adverse credibility finding assumes greater significance. The representative proposed that the Tribunal ask the witnesses questions about the basis of their belief. The Tribunal responded that “this is not a space”.

71 That the appellant’s representative may not have communicated with clarity the relevance of the witnesses’ foundation for their belief does not detract from the inquisitorial role of the Tribunal; it does not lessen the burden or mitigate the legitimate scope of inquiry. Indeed, in this case, it may be seen (at least, in part) as an incident of the Tribunal’s conduct of the hearing.

The primary judge’s findings: the quality of the opportunity to appear

72 The primary judge did not accept that a hearing which extended over two days and took six hours to complete was one where the appellant did not have an opportunity to give evidence and present arguments. The Tribunal heard from each of the witnesses sought to be called, even though it clearly indicated that it did not think they could necessarily assist in relation to the issues in the review: PJ [81]. The Minister on appeal embraced the primary judge’s finding.

73 In my view, this mistakes the length of the hearing with its quality. I accept that the Tribunal heard from each witness sought to be called and which it could reach by telephone, and that a second day of hearing was provided to accommodate this evidence. I accept that this opportunity was afforded notwithstanding the Tribunal’s express misgivings about the utility of the proposed evidence. I also accept that the Tribunal asked open questions of the witnesses, and that there is no proscription on posing leading questions.

74 However, in the context of the Tribunal expressing its misgivings to the witnesses (“I have nothing to ask you”), and dismissing the submission of the appellant’s representative as to the utility of further evidence regarding the basis of the witnesses’ knowledge (“this is not a space”), it is difficult to avoid the conclusion that the examination of the witnesses reinforced in general terms what the Tribunal already accepted, which is that “because of [the witnesses’] knowledge of [the appellant]”, the witnesses believed the appellant was a genuine Christian.

75 Insofar as the witnesses’ knowledge comprised the appellant’s baptism, attendance at church and praying with the rosary, it is recorded in the Tribunal’s decision at paragraphs [129], [131] and 132. In relation to witness Dass, who had known the appellant since September 2016, the Tribunal simply notes that the witness believed the appellant to be an honest person. There is no reference to any particulars of the witness’ knowledge of the appellant. (The reference to the absence of personal knowledge of witness Dass at one point in the transcript appears to be limited to a particular piece of information that is indecipherable from the transcript.) The possibility that the witnesses’ knowledge of the appellant comprised something that may have been significant to the Tribunal’s assessment of the appellant’s credibility in relation to his conversion in Australia, cannot be excluded. That possibility assumes greater significance in circumstances where the Tribunal has rejected the claim that the appellant is a genuine convert on the basis of a general credibility finding (as evidenced in the reasoning at TD [195]-[196]): i.e., a finding that is based on the Tribunal’s assessment of the appellant’s claimed activities in Bangladesh.

76 The open question that the Tribunal posed to the appellant’s representative as to whether there was “anything else” that the representative would like the Tribunal to ask witness Dass, must be viewed in light of previous exchanges with the Tribunal member in which she made it clear that certain evidence was of no utility to her assessment of the appellant’s credibility. The Minister’s submission that the appellant’s legal representative had the opportunity to elicit more information from the witnesses (but did not), should be understood in this context.

77 The primary judge rejected the notion of a general duty to “enquire” into an applicant’s claims: PJ [74]. The Minister made a similar submission that the Tribunal was not obliged to take further steps to “explore” the basis of the witnesses’ beliefs. As much may be accepted. It does not address the present case. The appellant’s representative indicated to the Tribunal the relevance of the proposed evidence. The Tribunal responded that “this is not a space” for the examination of the foundation of the witnesses’ belief that the appellant was a genuine convert.

78 It is difficult to avoid the conclusion that this approach directed the course of witness examination. This is evident in the Tribunal member’s statement to certain witnesses that she had nothing to ask them, and in the frequent interruptions of the appellant’s representative with which the representative took issue in his attempt to explain the relevance of the proposed evidence, which explanation the Tribunal member did not accept. The fact that this approach had the potential (as a realistic possibility) to inform the examination of witnesses is sufficient to acknowledge the loss of opportunity to present evidence or make submissions on a critical issue, viz., the credibility of the appellant’s conversion to Christianity in Australia.

79 This does not mean, as the appellant submits, that the Tribunal’s examination of the witnesses was an “empty gesture”: Maltsin at [38], referring to NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [30]. The examination proceeded as it did due to the Tribunal’s misapprehension as to the utility of the proposed evidence. As explained above in relation to Ground 1, there is a distinction between a mind that is not open to persuasion, and one that is not in the end persuaded. I acknowledge that the appellant’s representative experienced some difficulty (by way of interruption) in presenting his argument to the Tribunal. Nevertheless, the point was made as to the relevance of the basis of the witnesses’ belief, which was dismissed by the Tribunal.

80 I consider that the opportunity afforded to present evidence and make submissions was limited by the Tribunal’s misapprehension as to the utility of the evidence given and proposed to be given. The Tribunal indicated that it was not prepared to take evidence as to the basis of the witnesses’ belief as “this is not a space” for such an enquiry. That was a misapprehension as to the issues arising in relation to the decision under review. The fact that the Tribunal accepted the evidence of the relevant witnesses (as to fact of their belief) is, therefore, not to the point. The Tribunal did not accept that the basis of their belief was relevant to a central issue in the review. In circumstances where the appellant was the subject of an adverse credibility finding in relation to his activities in Bangladesh, and the evidence of the appellant’s activities in Australia was the only basis upon which a sur place claim could be assessed, it is a short step to conclude that the Tribunal’s misapprehension as to the utility of that evidence undermined the opportunity afforded by s 425 of the Migration Act.

Conclusion: failure to meet requirements of s 425

81 The conduct of the hearing fell short of the requirements of s 425 of the Migration Act. The primary judge erred in finding that the Tribunal provided the appellant with a meaningful opportunity to give evidence and present arguments on the issue of the credibility of the appellant’s conversion in Australia. The second ground of the appeal is established.

Ground 3 – Tribunal’s obligation to review the decision under s 414

82 The third ground of appeal alleges that the primary judge erred by failing to find that the Tribunal did not carry out its statutory task under s 414 of the Migration Act, through its failure to engage “in an active intellectual way” with the submissions and evidence provided by the appellant in relation to the genuineness of his conversion to Christianity in Australia.

83 The appellant argues that the Tribunal did not properly perform its review function under s 414 because it failed to “meaningfully engage” with a “critical integer” of the appellant’s claim: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42].

84 This is a curious submission in light of the appellant’s acceptance that “the Tribunal did not make any finding about the factual foundations for the witnesses’ beliefs” that the appellant had genuinely converted to Christianity. In that regard, the appellant appears to be suggesting that there was no engagement at all, let alone “meaningful engagement”, which is the way this ground is presented.

The requirements of reviewing the decision

85 Section 414 of the Migration Act provided, at the relevant time:

414 Tribunal to review Part 7-reviewable decisions

(1)     Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision.

(2)     The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).

86 The Tribunal’s core function under s 414(1) is to review Pt 7-reviewable decisions. Its process is inquisitorial. Its task is to arrive at the correct or preferable decision: CZBH at [55].

87 The caution of the Court in AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143 at [11], is worth recalling:

Care needs to be taken by the Tribunal to ensure that blanket, reflex or exaggerated adverse credit findings do not take the place of a proper examination of a visa applicant’s claims as required by s 414 of the Migration Act 1958 (Cth). When adverse credit findings of this kind are made, there is a risk that the Tribunal will lose sight of and not discharge its statutorily mandated task, including by overlooking a material claim or part of a claim that an applicant has made. Credibility will not always be a complete answer to every integer of such a claim.

88 The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant.  To make a decision without having considered all of the claims is to fail to complete the exercise of jurisdiction embarked on: Htun at [42]. Furthermore, if there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere, both must be dealt with.  If the sur place claim has multiple bases, each must be examined by the Tribunal: Htun at [42].

The primary judge’s findings: the quality of the review

89 The primary judge was satisfied that the Tribunal had actively considered the submissions before it, and had set out in a detailed and comprehensive manner the evidence and conclusions that it reached. The primary judge found that there was nothing illogical, irrational, or legally unreasonable in those conclusions, and that the ultimate conclusion that the appellant had been baptised and continued to attend church in Australia in order to gain a visa was open to the Tribunal on the evidence before it: PJ [83]-[84].

90 The Minister contends that the Tribunal did not need to engage further in considering the witnesses’ belief that the appellant was a genuine Christian. The basis for their belief was their evidence of what they had seen and heard of the appellant in church and in related social situations, as noted by the Tribunal (TD [127]-[133]), which the Tribunal accepted: TD [195].

The sur place claim

91 The Tribunal notes that the appellant did not claim that he became a genuine Christian after arriving in Australia, but rather that he converted in Bangladesh some three years prior. Nevertheless, the Tribunal considered the possibility that the appellant became a genuine Christian some time after he began attending church in Australia, and also considered the possibility that the appellant would face problems on return to Bangladesh because he had attended church in Australia: TD [197]. This may be seen as an aspect of the appellant’s claim of genuine conversion to Christianity.

The assessment of credibility

92 On a review of paragraphs [195] to [196] of the Tribunal’s decision, it is evident that the Tribunal’s assessment of the possibility that the appellant became a genuine Christian some time after he began attending church in Australia is subsumed by the Tribunal’s assessment of the credibility of the appellant’s claim that he converted to Christianity in Bangladesh prior to arriving in Australia: TD [196]. It is the Tribunal’s assessment of the “[appellant’s] lack of credibility” in relation to those claims that is the basis for the Tribunal’s finding that the appellant arranged to be baptised and continues to attend church, not because he is a genuine convert, but in order to obtain residency in Australia.

93 The witnesses’ belief of the genuineness of the appellant’s conversion did not hold sway as against the Tribunal’s general assessment of the appellant’s credibility. This is the contest that the Tribunal set up at the hearing: viz., the witnesses’ assessment as against the Tribunal’s assessment. There does not appear to be any acknowledgment that the former could inform the latter, by virtue of the factual foundation for the witnesses’ belief providing a basis for the Tribunal’s assessment of credibility.

94 The Tribunal did acknowledge the basis of the witnesses’ belief that the appellant is a genuine convert: TD [129], [131] and [132]. However, there does not appear to be any consideration of the foundation of that belief, other than to acknowledge that the Tribunal accepted that the priest and the appellant’s fellow parishioners believed him to be a genuine convert: TD [195]. Consistent with the Tribunal’s exchange with the appellant’s legal representative, there does not appear to be any acknowledgement of the utility of that (kind of) evidence beyond supporting the witnesses’ subjective belief of the appellant’s character. There is certainly no acknowledgement that the basis of that belief might inform the Tribunal’s assessment of the appellant’s credibility.

95 The s 414 question is whether this general finding has caused the Tribunal to lose sight of and not discharge its statutorily mandated task by overlooking a material claim or part of a claim that the appellant has made. I accept that it has. The basis of the witnesses’ belief as to the genuineness of the appellant’s conversion to Christianity in Australia is an important aspect of the Tribunal’s assessment of the credibility of that claim.

96 The Tribunal found that the appellant’s claim that he had converted to Christianity in Bangladesh was “concocted”, and that he “arrived in Australia intending to remain permanently”: TD [195]. The Minister says that this intention materialised subsequently, through the appellant’s claim for a protection visa one month after his arrival. Whether the appellant’s intention on arrival can be inferred from his later application for a protection visa is moot, given that this consideration does not feature in the Tribunal’s reasons. Rather, as the appellant submitted and the Minister ultimately acknowledged, this finding about the appellant’s intention on arrival to Australia is linked to the adverse credibility findings made earlier in the decision.

97 The Tribunal acknowledges that something could have changed whilst in Australia. However, the Tribunal dismissed that possibility on the basis of “the applicant’s lack of credibility”, which the Tribunal assessed in relation to the appellant’s activities in Bangladesh. The Tribunal did not assess separately the credibility of the appellant’s conversion in Australia, the possibility of which it had acknowledged. As the Court cautions in AZU15 (at [11]), care needs to be taken by the Tribunal to ensure that blanket, reflex or exaggerated adverse credit findings do not take the place of a proper examination of a visa applicant’s claims as required by s 414.

98 The fact that the Tribunal found that the appellant provided false evidence in relation to his claim of conversion in Bangladesh does not lead inextricably to a finding that the appellant provided false evidence in relation to his activities in Australia. There is no independent consideration of the basis of the claim of conversion in Australia. This is poignant in circumstances where the Tribunal was invited to examine the evidence of witnesses regarding the foundation of their belief as to the genuineness of the appellant’s conversion in Australia. Furthermore, the Tribunal could not have made a general finding that the appellant is untruthful on the basis of its assessment of the appellant’s activities in Bangladesh, without overlooking the possibility (which it acknowledged) of conversion in Australia.

99 Finally, the Tribunal’s finding that the appellant would not face problems on return to Bangladesh, is based on the finding that there is no evidence to suggest that the Bangladeshi authorities were aware of the appellant attending church in Australia, which the Tribunal found was disingenuous (TD [197]); “no plausible reason” why his family would believe otherwise (TD [198]); and “no credible evidence” that the appellant would be viewed as having abandoned his faith on return to Bangladesh: TD [201]. Consequently, there is no consideration that the appellant might face harm on return to Bangladesh because his church attendance signals a genuine practice or belief, and one that he might continue in Bangladesh. This underscores the materiality of the Tribunal’s error.

Conclusion: failure to meet requirements of s 414

100 The adverse credibility finding in relation to the appellant’s activities in Bangladesh has taken the place of a proper examination of the possibility of his conversion in Australia. Accordingly, the Tribunal has failed to meet the requirements of s 414 of the Migration Act. The third ground of the appeal is established.

CONCLUSION

101 The appeal should be allowed.

102 The first respondent should pay the appellant’s costs of the appeal, and in the Court below, as agreed or taxed. The appellant has succeeded on two out of three grounds of appeal, all of which arise from the same factual substratum.

| I certify that the preceding one hundred (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Younan. |
Associate:

Dated: 21 April 2026