AKS19 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 561

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AKS19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 561

File number(s):	SYG 243 of 2019
Judgment of:	JUDGE MCCABE
Date of judgment:	17 April 2025
Catchwords:	MIGRATION – review of a decision of the Administrative Appeals Tribunal – protection visa – no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	26
Date of hearing:	20 March 2025
Place:	Sydney
Solicitor for the applicant:	The applicant appeared in person
Solicitor for the first respondent:	Mr Z McCaughan (Mills Oakley)
Solicitor for the second respondent:	Submitting appearance, save as to costs

ORDERS

SYG 243 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AKS19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MCCABE
DATE OF ORDER:	17 APRIL 2025

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

2.The applicant pay the first respondent’s costs in the fixed amount of $5,400.

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 MCCABE:

1. On 10 January 2019, the Administrative Appeals Tribunal affirmed an earlier decision of a delegate of the first respondent (the minister) to refuse the applicant a protection visa. The Tribunal disbelieved much of the applicant’s account about his history of political activity in Bangladesh and other matters. In those circumstances, the Tribunal was not satisfied the applicant met the criteria for a protection visa, which are set out in s 36(2) of the Migration Act 1958 (Cth).

2. The applicant sought judicial review of that decision under s 476 of the Act. He says the Tribunal got the decision wrong. At the hearing before me, it became apparent he disagreed with the outcome. He took issue with the Tribunal’s rejection of much of his evidence.

3. The Court is only entitled to intervene in a decision of the Tribunal where it is satisfied that decision is affected by material jurisdictional error. The applicant was unable to point to any jurisdictional error, and none was apparent on the face of the reasons. I must therefore dismiss the application for judicial review. I explain my reasons below.

   Background

4. The applicant is a citizen of Bangladesh. He came to Australia on a tourist visa on 9 October 2015. On 5 November 2015, he applied for a Protection (subclass 866) visa. His application for the protection visa included a number of claims:

   (a)He had been a member of a political organisation in Bangladesh called Jatiotabadi Jubo Dal (the JJD) since 2008. He said he was also a member of the Bangladesh Nationalist Party (the BNP), one of the two major political parties in Bangladesh. (As I understand it, the JJD is the youth wing of the BNP.) The other major political party in Bangladesh is the Awami League (AL).  The applicant says other family members were involved with the JJD or the BNP; some were merely supporters while others were officeholders or candidates of the JJD or the BNP.

   (b)The applicant’s father, a BNP activist, had gone missing in 2007.

   (c)The applicant became the vice-president of a local chapter of the JJD in 2012. He says he was targeted by the AL for harassment. The AL commenced a false case against him in 2012.

   (d)The applicant was assaulted by a group of AL supporters on 15 November 2014. He was injured in the nighttime attack and required medical treatment. He recalled suffering a blow to the side of his head. He provided a document described as an ‘injury certificate’ purportedly signed by a staff member at a local hospital in support of his claim.

   (e)After the attack, the applicant decided to keep a low profile. He began living in different places to avoid encounters with AL supporters.

   (f)He says he continues to fear being targeted by AL supporters on account of his past activities and because of the activities of his relatives.

   (g)Before leaving Bangladesh, the applicant formed a clandestine relationship with a married woman. The affair continued for over a year. When the affair was discovered, local village elders decided he should pay an amount to the woman; he agreed to do so but reneged on the obligation. He said he feared what would happen if he returned to Bangladesh given this transgression.

5. The delegate was not satisfied the applicant was a member of the BNP, but added if the applicant was a member he was not an official and would not be the subject of persecution at the hands of AL members. The delegate was also unimpressed with the applicant’s story about an extramarital affair. Given those findings, the delegate concluded in a decision dated 1 July 2016 that the applicant:

   ·was not a refugee, and was therefore unable to satisfy the criteria in s 36(2)(a) of the Act; and

   ·was unable to satisfy the so-called ‘complementary’ protection criteria in s 36(2)(aa) of the Act.

   The Tribunal’s review

6. The applicant made a timely application for review in the Tribunal. The applicant was represented by a firm of solicitors.

7. On 13 August 2018, the Tribunal’s registry sent an invitation to attend a hearing that included a request for further submissions and material in support of the applicant’s case. The Tribunal already had access to the relevant contents of the file before the delegate. The applicant, through his representatives, provided additional documents, including:

   (a)a letter from the BNP in his home district addressed “To Whom It May Concern” (reproduced in exhibit one – the court book – at p 206). The letter asserted:

   He is royal and active workers of National youth party. He took part in all of undue government activities under the auspices of B.N.P.'s all working activities. He was tortured by Bangladeshi Awami League and accused of false case. His moral Character is good. [sic]

   (b)a letter to the applicant dated 8 September 2018 purportedly written by the applicant’s lawyer in Bangladesh. The letter is reproduced in the court book at pp 207ff. Written in fractured English, it refers to charges laid against the applicant under s 3 of the ‘explosive Act 1908’. That is presumably a reference to the Explosive Substances Act 1908 (Act No. VI of 1908), a colonial-era law in Bangladesh that provides for the death penalty where an individual unlawfully or maliciously causes an explosion that is likely to (a) endanger life, or (b) cause serious injury to persons or property. The lawyer’s letter is puzzling. It is not clear why the lawyer would be writing to the applicant in English when the applicant does not speak the language. (English is obviously not the lawyer’s first language either.) Curiously, the letter expressly advises the applicant to remain abroad, beyond the jurisdiction of the court. That would be an extraordinary thing for any lawyer to write. The letter adds, somewhat gratuitously: “Currently you are in the world’s best human rights country, Australia, the country is safe for you and will not try to come to Bangladesh.”

   (c)a tranche of court documents (reproduced in the court book at pp 210ff). The documents make reference to the applicant. The letter from the applicant’s lawyer said the documents were translations; if that is so, they are almost unintelligible. I note there is a reference in one of the documents (at p 243 of the court book) to the applicant (amongst others) being charged under s 3 of the ‘explosive Act 1908’. Curiously, the supposedly translated documents appear to be on official letterhead.

8. The Tribunal hearing proceeded on 25 September 2018. The applicant appeared with his representative and answered questions. He was afforded a further opportunity to provide information and submissions following the hearing. The Tribunal was subsequently provided:

   (a)a statutory declaration signed by the applicant and dated 2 October 2018 (reproduced in the court book at pp 269ff). The declaration attempts to address issues that had been identified in the hearing. Amongst other things, the declaration claims the applicant was a “ BNP strong activist” (sic) and said he has been “involved with the BNP in Australia actively”(court book at pp 270-271);

   (b)a medical document titled ‘Health Summary Sheet’ dated 3 September 2018 (court book at p 274); and

   (c)a lengthy submission prepared by the applicant’s lawyer dated 2 October 2018 (court book at pp 275ff).

9. The Tribunal also had a large tranche of health records (court book at pp 160ff) detailing the applicant’s emerging health problems.

   The Tribunal’s decision

10. The Tribunal affirmed the delegate’s decision to refuse the grant of the protection visa. The Tribunal decision to that effect is dated 10 January 2019. The decision and statement of reasons are reproduced in the court book at pp 307ff.

11. The Tribunal’s reasons began with a straightforward discussion of the relevant law, including the criteria in s 36 of the Act. The reasons also referred to the relevant ministerial direction and guidelines. The Tribunal then summarised the claims made in the protection visa application and recorded the procedural history.

12. The assessment of the applicant’s claims begins at [19] of the Tribunal’s statement reasons. In that paragraph, the Tribunal noted the applicant had acknowledged the visa application was prepared by an agent in accordance with the applicant’s instructions. The applicant had agreed the information contained in the application was accurate and complete. The Tribunal then introduced its adverse credibility finding, saying (at [20] of its reasons):

    During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, his involvement with the BNP, his reasons for leaving Bangladesh and why he fears returning to Bangladesh. The Tribunal found aspects of his evidence to be vague, lacking in detail, contradictory and unconvincing. There were significant inconsistencies between his oral and written evidence. He made new claims throughout the process. The Tribunal formed the view that he is not a credible witness…

13. The Tribunal thereafter discussed the claims and evidence to explain its credit finding. The Tribunal identified at least 14 different aspects of the applicant’s account which were troubling. Its criticisms can be summarised as follows:

    (i)The applicant was unable to explain the role of an officeholder of the JJD, and – more importantly – the applicant did not appear to have more than a general understanding of the BNP’s objectives and ideology in comparison to the AL. That ignorance was difficult to reconcile with his account of activism on behalf of the JJD and the BNP (at [21]-[25]);

    (ii)The applicant appeared confused in his oral evidence about which of his relatives were officeholders and members of the BNP and which were merely supporters. His answers at the hearing were not consistent with claims in his visa application, which were said to call  into question the reliability of his account (at [26]-[27]);

    (iii)The Tribunal had concerns arising out of the applicant’s evidence about the incident in which he recalled being assaulted by a group of AL supporters. The Tribunal identified several anomalies in the evidence about the attack and concluded the account was implausible upon closer analysis (at [28]-[30]). The Tribunal was also dissatisfied with the ‘injury certificate’ that was provided in connection with this claim. It explained (at [32]):

    The Tribunal has some difficulty accepting that this document was prepared by a medical professional in view of the description of the injuries and the nature of the injuries. The Tribunal also has difficulty accepting that the applicant would have been given an injection for a quick recovery and prescribed antibiotics for the type of injuries he claims to have suffered. The Tribunal does not claim to be a medical practitioner but it is common knowledge that antibiotics are prescribed for bacterial infections and it is therefore implausible that he would have been prescribed antibiotics for a head injury and swelling in his lower back.

    The Tribunal also disbelieved the applicant’s account of his behaviour subsequent to the attack. He claimed he effectively went into hiding, but did not move far from his home where (by his account) he enjoyed a low profile (at [34]).

    (iv)The applicant gave inconsistent and incoherent explanations about his attendance at a protest of some kind and about his subsequent arrest and prosecution. The Tribunal noted the evidence was not consistent with the applicant’s earlier evidence to the effect that he had adopted a low profile around this time: at [38]. The Tribunal also noted the applicant did not mention being assaulted by police following his arrest in his application for a protection visa: at [39].

    (v)The Tribunal was perplexed by the applicant’s claim that an arrest warrant had been issued for him given he was still able to depart the country on his own passport in 2015. The Tribunal noted the applicant sought to address the issue in the statutory declaration filed after the hearing but it was not satisfied with the explanation: at [41]-[43].

    (vi)The applicant’s account of the extramarital affair was held to be implausible on closer analysis. The Tribunal noted (at [47]-[48]) the applicant claimed he had adopted a lower profile after receiving unwelcome attention yet he was regularly visiting the home of a married woman who lived nearby. The Tribunal thought it was unlikely the applicant and his paramour could persist with their assignations over such a long period without being discovered. The Tribunal also saw no reason to assume he would face sanctions of any kind if he returned: the events in question occurred years before and there were no charges laid when the behaviour was uncovered.

    (vii)The Tribunal was perplexed by evidence confirming the applicant had visited India and planned to visit Malaysia while he was supposedly under threat at home – yet he made no attempt to seek refuge in India in particular. The applicant explained in his post-hearing declaration that he discovered neither of those countries would accept a claim for protection. The Tribunal found (at [52]):

    The Tribunal is not persuaded by the applicant’s responses. The Tribunal is of the view that if he was able to find out that he was not able to claim asylum in Malaysia without having to go to Malaysia he would also have been able to find out that he could not claim asylum in India without the necessity of going to India. Further, if his life was at risk in Bangladesh the Tribunal would have expected him to stay in India, particularly when he had a visa that was valid until 24 March 2018, until such time as it was safer for him to return to Bangladesh or he was able to find a more permanent solution. His conduct is not consistent with his claims and raises concerns in relation to his credibility and the veracity of his claims.

    (viii)The Tribunal found the applicant’s evidence about the extent of his activism after he came to Australia was inconsistent. In his statutory declaration, he said he was actively involved in BNP Australia, whereas his evidence at the hearing suggested he was much less active: at [53]-[54].

    (ix)The Tribunal was troubled by the inconsistencies between evidence about the applicant’s work history and qualifications described in the application for a visitor visa and information that was supplied in connection with the protection visa application and the Tribunal review. The Tribunal noted that, when asked to explain the discrepancies at the hearing, the applicant replied he did not know anything about what was said in the application for a visitor visa because that was completed by someone else. He denied that he signed the application for a visitor visa: at [56]-[57]. The Tribunal noted (at [58]) the applicant’s evidence about whether he signed the application for a visitor visa was inconsistent. The Tribunal also disbelieved the applicant’s claim that he had no knowledge of the documents provided or claims made by the erstwhile agent.

    (x)The Tribunal noted the documents provided in support of the visitor visa included bank statements. The applicant conceded he had given the bank statements to his erstwhile agent. Those statements recorded a pattern of regular deposits and withdrawals mostly through an automatic teller machine located in one place. The Tribunal said the records were not consistent with the applicant moving from place to place or being unemployed as he had claimed: at [59]. The applicant sought to explain this evidence by saying he had been advised to undertake the transfers in order to create the appearance of being employed because that would be useful in achieving a better outcome on the application for a visitor visa. The applicant denied the money in question belonged to him: at [60]. The Tribunal concluded (at [61]):

    The applicant’s evidence indicates that he actively and knowingly participated in an activity to create false evidence to support his visa application. It is also not consistent with his evidence that he did not know anything about his application for a Visitor visa. His conduct raises concerns for the Tribunal that his brief trip to India was also for the purpose of creating evidence of international travel to support his application for a Visitor visa. The extraordinary steps taken by him to manufacture evidence to support his application for a Visitor visa raises concerns in relation to his conduct with respect to his application for a Protection visa.

    (xi)The applicant had said in his application for a visitor visa that he was not facing charges of any kind, but that evidence could not be reconciled with the information contained in the protection visa application: at [62]. The Tribunal did not accept the applicant’s claim that he was not aware of what was said in the visitor visa application. The Tribunal concluded (at [63]):

    Even if the Tribunal were to accept that he was not aware of the details of his application for a Visitor visa, his conduct indicates that he knowingly participated in manufacturing false evidence to support his visa application and is not consistent with his evidence that he had no idea what was provided to the Department to support his visa application. At best, his evidence and conduct indicates that he had no concerns about whether the information and documents provided to the Department were accurate. This raises concerns in relation to the accuracy of the information and documents provided to support his application for a Protection visa.

    (xii)The Tribunal thought it suspicious that the applicant only applied for a protection visa as his visitor visa was coming to an end: at [64]. The Tribunal was not satisfied with the applicant’s explanation: the applicant said he was unfamiliar with the process and did not speak English, whereas the Tribunal pointed out the applicant clearly had assistance from an agent before departing Bangladesh: at [65]-[66].

    (xiii)The Tribunal was suspicious of the documents that were supposedly provided by BNP officials. The Tribunal noted five identical but undated letters of reference from BNP officials asserted the applicant was tortured. The Tribunal pointed out the applicant had not claimed before the Tribunal or in the application for the protection visa that he was tortured: at [68]. The Tribunal thought it unlikely that five letters would have been written to that effect. The Tribunal was also perplexed by the court documents that were provided. It explained why it was not satisfied they were (poor) translations of official documents: at [69]-[70]. The Tribunal was also sceptical of the letter supposedly written by the applicant’s lawyer. The Tribunal explained why the contents of the letter and the quality of the expression called into question its authenticity: at [73]. The Tribunal noted there was evidence in country information reports to the effect that fraudulent documents were common in cases dealing with applications from Bangladesh: at [74]. The Tribunal also acknowledged the post-hearing statutory declaration in which the applicant insisted the documents were genuine, and noted that he offered phone numbers for his lawyer and others so the Tribunal could verify what was said in the documents. The Tribunal pointed out it was not practical for the Tribunal to call the numbers: at [75]. The Tribunal also noted the applicant had a history of providing fraudulent documents to obtain a visitor visa. I take that to be a reference to the bank accounts which, on the applicant’s own evidence, showed a contrived pattern of deposits and withdrawals.

    (xiv)The Tribunal also considered the evidence about the applicant's ill-health. It concluded the applicant was able to receive treatment for all his conditions in Bangladesh, even if the standard of care might not be the same as in Australia: at [78].

1. The Tribunal proceeded to make factual findings rejecting the key elements of the applicant’s claim for the visa. It concluded the applicant did not have a well‑founded fear of persecution if he returned to Bangladesh, and was not therefore a refugee as defined in s 5H of the Act. As a consequence, he could not satisfy the criterion in s 36(2)(a) of the Act. The Tribunal also concluded the applicant did not qualify for complementary protection under s 36(2)(aa) of the Act.

   The application for judicial review

2. The applicant’s application for review identified three grounds as follows:

   ·The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

   ·The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League Party as an independent claim.

   ·The Tribunal failed to assess the harm that I may face based on my political opinion against the Awami League Party.

3. I explained the concept of jurisdictional error to the applicant at the outset of the hearing. I pointed out the Court was not able to say whether the applicant should get a visa; the Court’s role was to identify whether the executive’s decision was unreasonable in the legal sense, or whether it was affected by other legal defects like:

   ·misstatements or misapplication of the relevant law;

   ·failing to take account of relevant evidence or submissions, or taking into account irrelevant matters; or

   ·bias or other failures to afford procedural fairness.

4. I heard from the minister’s representative who had provided written submissions filed 7 March 2025. I then turned to the applicant.

5. Mr AKS19 began by complaining he did not understand these proceedings. He said nobody had told him what to do or what to submit. It is difficult to credit those complaints about the process. While I accept the applicant is unwell, does not speak English, and is unrepresented, his history does not suggest someone who is unresourceful. The present proceedings were commenced in February 2019. The grounds of review, while unparticularised, appear to grapple towards allegations of jurisdictional error. The applicant may not have drafted those grounds himself, but he has clearly had access to some assistance – and he had the opportunity to make enquiries or seek assistance between early 2019 and 2025.

6. When I asked Mr AKS19 to discuss in his own words his criticisms of the Tribunal’s decision, Mr AKS19 was unable to identify any matters that he had put to the Tribunal which the Tribunal failed to consider. He initially referred to the injury certificate provided by the doctor as something which might have been missed, but he acknowledged the Tribunal dealt with that evidence at [31]‑[32] and [85] of its reasons. He suggested the certificate does not make sufficiently clear the gravity of his injuries, but that is not a criticism of the Tribunal’s evaluation of the document or the Tribunal’s assessment. Mr AKS19 had the opportunity to explain to the Tribunal the extent of his injuries and qualify what was said in the certificate, but the Tribunal thought the certificate was a forgery and it discounted the applicant’s account.

7. The applicant’s claim (encapsulated in grounds two and three of the application for review) that the Tribunal failed to consider the evidence suggesting the applicant had to leave Bangladesh because of the threat of political violence is misconceived. The complaint that the Tribunal failed to focus on the likely harm he would experience on account of his political beliefs or his membership of the Awami League is also misconceived. The Tribunal simply did not believe the applicant’s account. It did not ignore the applicant’s evidence: indeed, the Tribunal appeared to carefully evaluate the evidence before it, which included the material provided post-hearing. The Tribunal explained why it was not persuaded by the applicant’s material. In particular, the Tribunal explained why it did not accept the applicant was a credible witness, and why it did not trust the documents the applicant had provided. The applicant disputes those findings and (I infer) rejects the criticisms of his evidence and the supporting documents, but that does not change the fact the Tribunal conducted a careful review and gave logical reasons for the adverse findings it made. (Those findings have been summarised earlier in my reasons.)

8. The Tribunal’s fact-finding process proceeded in a logical way. The Tribunal’s reasons for not accepting the evidence of the applicant and for doubting the veracity of the documents are carefully explained. It cannot be said the findings lack evident or intelligible justification.

9. I note the applicant also referred to his medical history. Evidence of recent changes in his health are irrelevant to the issue before me, which focuses on the Tribunal’s evaluation of the evidence. I note the Tribunal did refer to health evidence that had been provided: at [77]-[78].

   Conclusion

10. Given the factual findings the applicant made, there was no basis for deciding the applicant met the criteria in ss 36(2)(a) or 36(2)(aa) of the Act. The applicant has not been able to identify any jurisdictional error in the Tribunal's decision to that effect. None of the grounds has been made out on review, and no other jurisdictional error was apparent on the face of the reasons. The application for judicial review must therefore be dismissed.

11. I discussed the question of costs at the conclusion of the hearing. The minister’s representative asked that an order of costs be made in the event the applicant was unsuccessful. The minister says an order in the fixed amount of $5,400 would be appropriate. While that amount is somewhat less than the amount indicated on the Court's scale, I was told it approximated the amount of costs that have actually been incurred in preparing and defending the proceedings.

12. The applicant was unsure whether an award of costs would be warranted but added that he could not afford to pay costs in any event.

13. I am satisfied it is appropriate to make a costs order in favour of the minister in the circumstances of this case. The minister has clearly incurred costs in defending the proceedings, and that burden must be met out of public monies in the absence of a costs order. While I accept the applicant has limited means, an inability to pay is not of itself a reason for not awarding costs. I also accept the amount should be fixed at $5,400 given that approximates the amount of costs actually incurred.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

Associate:

Dated:       17 April 2025