AAC19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 399
•16 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAC19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 399
File number(s): SYG 4 of 2019 Judgment of: JUDGE KAUR-BAINS Date of judgment: 16 April 2025 Catchwords: MIGRATION – judicial review – protection visa – alleged failure to give “proper, genuine and realistic consideration” to a letter purportedly provided by the Assistant Office Secretary of the BNP – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), s 476 Cases cited: Bay Simmer Investments Pty Ltd v New South Wales (2017) 222 LGERA 286; [2017] NSWCA 135
M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 17 March 2025 Place: Sydney Counsel for the Applicants: Mr PW Bodisco Solicitor for the Applicants: Mr A Siddque of Abu Legal Counsel for the Respondents: Ms K Hooper Solicitor for the Respondents: Mr A Westenberg of Sparke Helmore ORDERS
SYG 4 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAC19
First Applicant
AAN19
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
20 MARCH 2025
THE COURT ORDERS THAT:
1.The Applicants are granted leave to rely on the proposed amended application dated 26 February 2025.
2.The Application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Kaur-Bains
The first applicant is a male citizen of Bangladesh, and the second applicant is his wife. The applicants seek judicial review of a decision of the second respondent (Tribunal) dated 11 December 2018, which affirmed the decision of the delegate not to grant the applicants Protection (Class XA) visas (visas). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth).
The issue that arises for determination, is whether the Tribunal gave “proper, genuine and realistic consideration” to a letter purporting to be from the Assistant Office Secretary of the Bangladesh Nationalist Party (BNP), in support of the first applicant’s claims as to his involvement with the BNP. For the following reasons, I find no jurisdictional error has been established, and the application is dismissed.
BACKGROUND
On 27 July 2015, the applicants applied for protection visas (Court Book (CB) 3).
Protection Visa Claims
The first applicant raised the following matters in support of his application for a protection visa (CB 39 to 42):
(a)His father was a retired serviceman who supported the liberation war in 1971.
(b)At university he became involved in student politics particularly the youth wing of the BNP and became joint secretary of the Jatyatabadi Chatradal.
(c)At Parliamentary elections in 1991, he assisted in the election of the BNP to government.
(d)He admired Ziaur Rahman, a military commander and founder of the BNP. He assisted the BNP at the elections in 1996, where the Awami League (AL) came to power.
(e)In 2001, he worked for BNP candidates. Ultimately, the BNP came to office.
(f)On 28 February 2003, some criminals associated with the AL “entered [his] flat to kill [him]” but fortunately he was at prayer. They blindfolded his wife and sister, stole belongings, decorations and money and destroyed equipment. They also killed the owner’s wife. The first applicant filed a case against them. The criminals came out of jail and are threatening to kill the first applicant.
(g)He worked hard for the BNP party and in projects helping disadvantaged people. In 2009, he became an executive member of the Badda thana BNP.
(h)In 2012, AL supporters attacked his car with sticks and beat him with rods.
(i)He tried to report the incident to police but the police were associated with the AL.
(j)In 2013, he was informed of a false case being brought against him, and therefore, he decided to flee.
BNP Letter
The BNP letter, which is central to the applicants’ judicial review ground, is found at CB 118 and, omitting the letterhead, the letter provides as follows:
TO WHOM IT MAY CONCERN
This is to certify that [the applicant, of address] was leading activist of the Bangladesh Nationalist Party (BNP).
[The applicant] is known to me politically for many years. Before leaving Bangladesh was a manager of a company named [A Ltd]. His wife also worked with a Japanese Company. [The applicant] was an executive member of the Badda thana BNP. [The applicant] made a significant contribution for the BNP politics. Our organization was greatly acknowledge his dedication. He was targeted by the current regime and he was a plaintiff of a murder case and these murders also intending to kill him. He was also implicated in false case.
Finally, he has left the country to save his life. If you need any further information regarding this matter, please feel free to contact the undersigned.
[Signature and name]
Asst. Office Secretary
Bangladesh Nationalist Party
Date: 09/01/2016
The BNP letter was certified as a true copy of the original document, being certified by the applicants’ then migration agent on 27 February 2016. The BNP letter is on a letterhead (which letterhead is not translated) and the following email addresses are noted in the letterhead: [email protected] and [email protected].
The BNP letter was provided by the applicants’ migration agent to the delegate under cover of a letter, which enclosed several documents and provided as follows (CB 116 and 117):
1. Certified copy of a letter issued from the Central office of the Jatiyatabadi Dal [BNP letter];
2. Certified copy of news cutting published the Daily Protom Alo;
3. Certified copies of a case document where the applicant is the Plaintiff.
The above documents demonstrates the applicant political position and the applicant
filed a case against murderer who are under the shade of the government and its Party.
Delegate’s Decision
The delegate said the following in relation to the BNP letter (CB 154, footnote omitted):
The applicant has provided the following document in support of his claimed activism and membership of the BNP:
•Letter purportedly issued by [name of person] Asst. Office Secretary of the BNP in January 2016.
He claims to have never met the individual who issued the letter, stating at interview that ''we are located a little away from central leaders so we don't have much involvement." The letter is general in nature and does not outline details such as when the applicant joined or the nature of his involvement. Further it was issued eight months after the applicant lodged his visa application. Given these considerations, I do not place any weight on this letter as evidence of the applicant's involvement with the BNP.
TRIBUNAL DECISION
The Tribunal, at [54] of its reasons, summarised the first applicant’s claims as relating to actual and imputed “political opinion”. The Tribunal noted the second applicant’s claim as relating to “membership of a particular social group”, in that she is a family member of the first applicant. There is no complaint as to the Tribunal’s understanding of the claims.
At [55] of its reasons, the Tribunal accepted the first applicant preferred the BNP to other parties in Bangladesh. However, based on the applicant’s evidence as to his work for the BNP, including the hand he gave to the party in election campaigns, the Tribunal did not accept the first applicant did anything more than low-level internal administrative work for the BNP party in Bangladesh. The Tribunal did not accept the first applicant was a target of the AL.
BNP Letter
At [56] of its reasons, the Tribunal did not give any weight to the BNP letter, for the reason that the letter was vague, not contemporaneous and the first applicant said he did not even know the author of the letter. I will deal further in detail with the way the Tribunal dealt with the BNP letter below, in my consideration of the judicial review ground.
Home Invasion and Threats
The Tribunal, at [57] of its reasons, accepted the applicants’ home was invaded in 2003 by armed robbers who bound the second applicant “and her [sic] sister”, robbed and vandalised the place and shot dead the neighbour. The Tribunal accepted this would have been traumatic for everyone, even the first applicant who was not present at the time. However, the Tribunal did not accept the purpose of the invasion was to harm the first applicant personally, let alone for political reasons. The Tribunal did not accept that what happened that day arose from a failure to locate the first applicant at home. The Tribunal gave no weight to the claim the computer was vandalised rather than stolen, as it did not accept the attack was politically motivated. The Tribunal was not satisfied the AL was responsible for the attack. The Tribunal was not satisfied the attack gave rise to a real chance of the applicants facing serious harm or being persecuted in Bangladesh in the reasonably foreseeable future.
The Tribunal, at [58] of its reasons, did not accept the applicants were subject to threats, let alone escalating threats, arising from the armed robbery, let alone that the threats were from the AL.
Alleged Attack on First Applicant’s Car
The Tribunal, at [60] of its reasons, found the first applicant’s evidence, about how he was able to identify the gang that allegedly attacked him in his car as being from the AL, unreliable. The Tribunal did not accept the first applicant was subject to a political attack as claimed. The Tribunal assessed the first applicant as performing “unsatisfactorily” as a witness overall. The Tribunal noted how the first applicant did not move himself away from where he could be located even though he and his wife had visas for Australia. At [61], the Tribunal found there was no police report about the attack on the car because the attack did not occur, rather than because the police refused to file a complaint.
False Charges
At [62] of its reasons, the Tribunal did not accept the first applicant was the subject of false charges for the following reasons:
I do not accept on the vague and somewhat inconsistent evidence before me that [the applicant] was ever the subject of false charges. I consider his evidence about this far-fetched and fanciful. Whereas [the applicant] struggled to recall the issue of the false charges, I am not satisfied on the evidence before me that he was prevented from providing coherent facts in this matter due to psychological or other conditions beyond his control; rather, I find in his case, that he had simply forgotten having previously made claims about false charged because they were not factual claims based on lived experience.
Leaving Bangladesh
The Tribunal, at [63] of its reasons, gave no weight to the first applicant’s evidence about why he did not leave Bangladesh sooner when he had visas for himself and his wife in 2014. The Tribunal did not accept the first applicant bribed anyone at the airport to be cleared for departure.
Association with the BNP in Australia
The Tribunal, at [65] of its reasons, was not satisfied the first applicant’s “low level and marginal” involvement with the BNP in Australia would give rise to a real chance of the applicants being persecuted in Bangladesh. This was because the country information was to the effect that mere low-level involvement in Bangladeshi politics in Australia does not give rise to a real chance of persecution in Bangladesh.
GROUNDS IN THE APPLICATION
The applicants’ amended application dated 26 February 2025 alleged the Tribunal failed to give proper, genuine and realistic consideration of the case, with the failure amounting to a constructive failure to exercise jurisdiction. The applicant alleged that the Tribunal misdirected itself regarding the significance of the letter being an official letter of the BNP.
Before dealing with the ground for judicial review, it is helpful to identify the legal analysis to be applied when a judicial review ground is raised that alleges the Tribunal failed to give proper, genuine and realistic consideration.
RELEVANT LEGAL PRINCIPLES
The Full Federal Court in Singh v Minister for Home Affairs (2019) 267 FCR 200 (Singh) (per Reeves, O’Callaghan and Thawley JJ) at [34] to [36] usefully summarised the relevant legal analysis as follows:
[34] …[A] Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
[36] …The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
The Full Court in Singh at [37] said that in determining whether the decision-maker had engaged in an active intellectual engagement, the following matters are relevant:
First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
•the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
•it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
•a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
I also note the warning given in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [26] (per Kiefel CJ, Keane, Gordon and Steward JJ) (omitting citations):
Labels like "active intellectual process” and "proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision maker's] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
CONSIDERATION
I accept the BNP letter was of the type of evidence referred to in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 (per Katzmann, Griffiths and Wigney JJ) (SZSRS) and Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 (per Gordon, Robertson and Griffiths JJ), in that it was important evidence put forward by the first applicant to support his claim as to his political involvement with the BNP in Bangladesh and that he was targeted by the AL. This is because the BNP letter bore on the issue the Tribunal needed to consider, being the first applicant’s level of involvement with the BNP in Bangladesh and whether because of that profile he was the subject of being targeted by the AL.
Given the importance of the BNP letter, the Tribunal had to consider it to fulfill its statutory obligation to conduct a review of the kind required by Part 7 of the Act. Accordingly, I accept in this case the Tribunal may fall into jurisdictional error if it failed to actively and intellectually engage in a consideration of the BNP letter.
The crux of the applicants’ complaint was the Tribunal failed to give “proper, genuine and realistic consideration” to certain features of the BNP letter purporting to be from the Assistant Office Secretary of the BNP as follows ([24] applicants’ written submissions):
(a)The letter was on a letterhead of the administrative headquarters of the BNP with contact details including a phone number and email address.
(b)Such administrative positions are “important” and “influential”, including as they keep official records.
(c)The letter corroborated the first applicant’s evidence about his involvement with the BNP.
(d)The letter corroborated the first applicant’s claimed position on the executive of the BNP.
(e)The fact the author does not personally know the first applicant is neutral – the author knew of the first applicant’s involvement by reputation and through record-keeping.
(f)The facts asserted in the letter are not so ancient as to reduce the weight of the contents.
Bearing in mind the way this Court needs to approach the consideration of the Tribunal’s reasons, given the centrality of the BNP letter to the first applicant’s claim as to his role in the BNP in Bangladesh, I now turn to consider the Tribunal’s reasons in that regard.
The Tribunal, at [22] of its reasons, referred to the BNP letter and noted the following aspects of the letter:
(a)The letter was a photocopy and was addressed to “To Whom It May Concern” from a purported office secretary of the BNP in Dhaka.
(b)The letter referred to the first applicant as a BNP “leading activist”.
(c)The letter also said that the first applicant had “made a significant contribution to the BNP”.
(d)The letter said the first applicant was targeted by the AL who had implicated him in false charges.
(e)The letter said the first applicant was “known politically” to the author.
At [22] of the reasons, the Tribunal actively engaged with the contents of the BNP letter in that it noted three aspects of the BNP letter which raised questions:
(a)First, the letter did not describe in any detail the “significant contribution to the BNP” made by the first applicant.
(b)Second, the Tribunal did find it “odd” that the first applicant was said to be a plaintiff in a murder case, because the Tribunal could not comprehend how, in the claimed circumstances, the first applicant could be a plaintiff or even a witness to the killing of his neighbour. This view that it was “odd” the applicant was referred to as a “plaintiff” in the murder case or even a witness was open to the Tribunal given that the first applicant on his own evidence was at prayer at the time of the killing (see applicant’s statement at [9], CB 40)
(c)Third, the letter was unclear as to what was meant by the first applicant being “known politically” to the author of the BNP letter.
The Tribunal, at [28] of its reasons, noted the BNP letter had been provided to the delegate and at the delegate interview, the first applicant claimed never to have met its author.
In the context of considering the first applicant’s claimed involvement with the BNP, the Tribunal at [37] of the reasons noted the following:
[The applicant] described his highest level of involvement in the BNP back in Dhaka: he said he was an "executive member" of the Badda Thana branch of the BNP. He described the thana as a division of a seat. He said there were around 22 wars in his local seat, but was vague as to how many thana it comprised, even though he claimed to have operated at the thana level. I asked him what an "executive" member did at the thana level, and he said his duty was to assist in implementing decision by the executive committee. Asked for details, he gave an example of purely internal activities such as arranging to receive guest speakers at internal meetings. He said he could not recall other kinds of activities apart, say, from organising what banners supporters took to rallies. Having said he was under the authorities of the executive committee, [the applicant] then said he was in fact a member of that committee. I asked him how many other members had the same title as he did and he first said he could not remember and then said there were 101 committee members in his thana branch of whom 71 were executive members. I asked him why executive members outnumbered ordinary committee members by three to one and he said this was the structure set out by the party. I asked [the applicant] what the other executive members were doing now: according to his evidence these seemed to be people with profiles similar to his own. In reply, he said he did not know because he had not been in contact. This response is not consistent with the evidence of [the applicant] having contacted his party back in Dhaka for the reference letter from the purported office secretary.
At [40] of the reasons, the Tribunal noted it asked the first applicant if he could provide any evidence of his role in the BNP in Bangladesh and he referred the Tribunal to the BNP letter. The Tribunal noted it put to the first applicant the delegate had been concerned as to the authenticity of the BNP letter due to the reported ease with which falsified documents can be obtained in Bangladesh and due to the letter being written long after the events described by someone he appeared to have never known or met.
The Tribunal, at [56] of its reasons, said it did not give any weight to the BNP letter for three cumulative reasons, being: first, its contents were vague; second, it was not contemporaneous; and third, the applicant had claimed not to have known the author.
The reasons of the Tribunal set out at [27] to [32] of this judgment disclose that the Tribunal, in a meaningful way, considered and understood the relevance of the BNP letter to the claim made by the first applicant as to his involvement with BNP and the false case brought against him. It is clear, from the matters set out at [27] and [28] of this judgment, the Tribunal critically assessed the contents of the BNP letter in terms of its contents against the background of the first applicant’s claims. The Tribunal’s rejection turned on its assessment that the contents were vague, which was a matter for the Tribunal, not contemporaneous, which was the fact as the letter was written after the time the applicant had left Bangladesh, and finally, the applicant had claimed not to know the author and the letter, which was true.
In relation to the complaints made by the applicants, as referred to in [25] of this judgment, whilst it is true the Tribunal did not refer to the BNP letter being on a letterhead of the administrative headquarters of the BNP with contact details including a phone number and email address, an inference can be drawn that it was aware that the applicant’s representative, in the cover letter referred to at [7] of this judgment, said the letter was “issued from the Central office of Jatiyatabadi Dal”, although, relevantly, no part of the letterhead was translated into English, except the email addresses. Further, in relation to the applicants’ complaint that the Tribunal failed to accept aspects of the BNP letter, being the important and influential position held by the author, and other matters, which were said to be corroborative of the first applicant’s claims, such challenge invites this Court to engage in merits review, which is not permitted. Further, the applicants’ submissions that the author not being personally known to the first applicant is neutral and the facts asserted in the letter are not so ancient so as to reduce the weight of its contents are again matters which seek to cavil with the Tribunal’s conclusions. I have found the Tribunal discharged its statutory obligation in its consideration of the BNP letter, in that it engaged actively with the consideration of the letter as set out at [27] to [33] of this judgment.
CONCLUSION
Given that no jurisdictional error has been disclosed, the application is dismissed.
I will hear the parties on costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 16 April 2025
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