Federal Court: September 2026

MIGRATION

Judicial review of decision of Administrative Appeals Tribunal – Tribunal affirmed decision to refuse to grant protection visa 

In FBU20 v Minister for Immigration and Citizenship [2026] FCA 1076, the Federal Court of Australia dismissed an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed the refusal of a delegate of the Minister for Immigration and Citizenship to grant the appellant Protection (Class XA) (Subclass 866) visas under section 36 of the Migration Act 1958 (Cth). 

The Court found the appellants did not establish an error in the primary judgment and no jurisdictional error in the Tribunal decision. The Tribunal’s rejection of the first appellant’s account of a secret marriage was not legally unreasonable, its reliance on country information was not irrational and it applied the correct legal test under ss 36(2)(a) and (aa) of the Migration Act. 

Background

The first appellant, FBU20, and the second appellant, FBT20, are citizens of Bangladesh (at [5]). FBU20 first arrived in Australia in July 2012 on a student visa, supported financially by his brother-in-law (at [5]). He returned to Bangladesh several times between 2013 and 2016, including in June 2013 when he married FBT20 at her father’s home (at [5]). FBT20 came to Australia in April 2014 as his dependent spouse and the couple were later granted further student and Temporary Skilled Provisional (Subclass 485) visas (at [5]). 

On 7 February 2018, the day before his temporary skilled visa was due to expire, FBU20 applied for a protection visa with FBT20 included as a member of his family unit (at [6]). FBU20 claimed that his marriage to FBT20 had been kept secret from his own family and that his father-in-law had consented to the marriage only on condition that FBU20 take FBT20 to Australia, pay a mahr (a mandatory gift given by the groom to his bride as part of an Islamic marriage) of 50 million Bangladeshi Taka and later persuade his own parents to accept the marriage (at [7]). He claimed that, when his brother-in-law discovered the marriage in November 2017, his father-in-law became angry and threatened to force the couple apart, sue him for the unpaid mahr and make his life difficult in Bangladesh (at [8]). FBU20 did not claim a fear of physical harm but asserted he would suffer ‘mental torture and anguish’ (at [8]). 

The Tribunal accepted the marriage occurred but did not accept FBU20’s account of its secrecy (at [12]). It found neither appellant had been threatened with physical harm, and that the essential or significant reason for FBU20’s fear was a personal family dispute with his father-in-law, not any of the reasons in section 5J(1)(a) of the Migration Act (at [13]). Turning to credibility, the Tribunal regarded several features of his evidence as ‘unusual’, including:  

• the absence of any attempt to obtain his parents’ consent (at [14]);  
• his father-in-law’s willingness to sanction a secret marriage and the size of the mahr demanded of a man with no employment or assets (at [15]); and  
• the requirement that FBU20 later convince his own parents to accept the marriage despite giving no evidence of having done so (at [15]).  

The Tribunal also considered it inconsistent that the father-in-law would only become angry in 2017 when the appellants had returned to and lived separately in Bangladesh in 2015 without any apparent issue being taken at that time (at [16]). It additionally considered the existence of wedding photographs despite the claimed secrecy (at [17]) and inconsistencies between FBU20’s account and a supportive letter from his Australian employer which described the marriage as still being kept from ‘their respective families’ years later (at [18]). Having regard to those matters, together with the delay of almost four years before the protection visa was lodged on the eve of the temporary skilled visa’s expiry, the Tribunal concluded FBU20 manufactured his account of the family dispute in order to remain in Australia (at [16]).  

It refused both the refugee criterion in s 36(2)(a) and the complementary protection criterion in s 36(2)(aa) of the Migration Act with the consequence that FBT20’s application also failed (at [19]-[20]). 

The primary judge dismissed six grounds of judicial review, finding the Tribunal correctly applied the statutory criteria in s 36(2)(a) and (aa), properly understood and considered the evidence concerning the marriage, including who attended it and from whom it was said to have been kept secret, and that it was open to the Tribunal to regard the existence of wedding photographs as unusual (at [21]).  

The primary judge also held the appellants’ complaints about the Tribunal’s treatment of the mahr arrangement and family circumstances amounted to no more than further explanation of the underlying claim, rather than any identified jurisdictional error, and that the Tribunal’s broader findings about the appellants’ desire to remain in Australia were rational, open on the evidence and legally reasonable (at [21]). 

The appeal 

The appellants sought judicial review in the Federal Court on three grounds of appeal (at [2]): 

1. Ground 1: the primary judge erred in finding the Tribunal’s rejection of FBU20’s claim of a secret marriage was legally reasonable. The Tribunal’s reasoning lacked an intelligible justification and did not properly consider his explanations and cultural context. 

1. Ground 2: the primary judge failed to find the Tribunal’s reliance on generalised country information over specific personal evidence — including photographs, the marriage certificate and family dynamics — was legally unreasonable or irrational. 

1. Ground 3: the primary judge erred in concluding the Tribunal applied the correct legal test under ss 36(2)(a) and (aa) of the Migration Act. It improperly assessed FBU20’s fear of harm as speculative and failed to account for the risk of mental and financial harm on return to Bangladesh. 

McDonald J dismissed all three grounds and dismissed the appeal. 

Ground 1 

McDonald J agreed with the primary judge’s observation that the Tribunal had carefully and at length considered the appellants’ evidence concerning the alleged secrecy of their marriage. His Honour noted the Tribunal’s rejection of FBU20’s account rested on several considerations taken in combination, including the ‘unusual’ features of his evidence. Although the fact FBU20 possessed wedding photographs was perhaps a less central consideration, it was not irrational or legally unreasonable for the Tribunal to treat it, together with the other matters, as bearing on its unfavourable assessment of his credibility (at [24]). 

His Honour rejected FBU20’s submission that the Tribunal was obliged to verify his account by contacting family members, friends or his employer, holding that the Tribunal was under no such obligation where FBU20 himself had not adduced their evidence (at [25]). FBU20’s criticisms of the Tribunal’s findings concerning the 2015 return to Bangladesh and the apparent inconsistency of his employer’s letter were held to be matters properly for the Tribunal, amounting to no more than disagreement with the merits of its findings (at [26]). A reference in the Tribunal’s reasons to the brother-in-law learning of the marriage in ‘November 2011’, rather than 2017, was accepted, including by FBU20 himself, to be an obvious typographical error and not a jurisdictional error (at [27]). 

Citing Minister for Immigration and Citizenship v Li [2013] HCA 18 and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, his Honour held that the Tribunal’s rejection of FBU20’s account had an evident and intelligible justification and its reasoning process involved no departure from the standards of rationality and logic sufficient to found jurisdictional error (at [28]). Ground 1 was accordingly dismissed (at [29]). 

Ground 2 

McDonald J found the Tribunal had not simply preferred generalised country information over FBU20’s personal evidence but had considered relevant country information together with common sense considerations, as part of its overall assessment of his credibility (at [31]). The country information indicating that parental consent was important to an Islamic marriage in Bangladesh and that such marriages were usually declared publicly was properly considered alongside FBU20’s explanation for not seeking his parents’ consent which the Tribunal did not accept as credible (at [32]). 

His Honour rejected FBU20’s submission that the Tribunal had wrongly applied information about urban marriage practices to his rural circumstances, finding that the passage on which the Tribunal principally relied concerned matters said to be basic to all Muslim marriages in Bangladesh (at [33]). Referring to NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, his Honour observed , and it was under no obligation to gather a wider range of sources where FBU20 had not identified other specific information that was not considered (at [33]). The Tribunal’s use of country information did not amount to legal unreasonableness or irrationality, and Ground 2 was dismissed (at [34]). 

Ground 3 

McDonald J agreed with the primary judge that the Tribunal had correctly identified and applied the statutory tests of a ‘real chance’ of serious harm under s 36(2)(a) and a ‘real risk’ of significant harm under s 36(2)(aa), using the correct terminology throughout its reasons (at [36]-[37]). There was nothing in the Tribunal’s reasons to suggest it had required FBU20 to establish that harm was inevitable or guaranteed. 

His Honour rejected the central factual premise of FBU20’s claim — that his marriage had been kept secret and that his father-in-law disapproved of it — and held the Tribunal was not required to separately address the more speculative consequences said to flow from that premise, including imprisonment for non-payment of the mahr or resulting financial and mental harm. Those claims depended entirely on the rejected account (at [39]-[40]). His Honour further cited Minister for Immigration and Multicultural Affairs v Rajalingam(1999) 93 FCR 220 and noted the Tribunal harboured no doubt about its factual findings such that it needed to consider an alternative hypothesis (at [38]). Ground 3 was accordingly dismissed (at [41]). 

Conclusion 

McDonald J concluded that the appellants had established no error in the primary judge’s decision and no jurisdictional error in the Tribunal decision, and dismissed the appeal (at [42]). His Honour further held that it was appropriate to make a lump sum costs order in the Minister’s favour, noting that the amount sought was substantially less than the maximum available under item 15.3 of Sch 3 to the Federal Court Rules 2011 (Cth) and that FBU20 did not oppose the fixing of costs in that amount (at [43]). 

The Court ordered that: 

1. the appeal be dismissed; and 

1. the appellants pay the first respondent’s costs of the appeal, fixed in the amount of $4,200. 

Paris Hart is a barrister in Chalfont Chambers.