AWA16 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1086
•11 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWA16 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1086
File number(s): SYG 3382 of 2018 Judgment of: JUDGE DOUST Date of judgment: 11 July 2025 Catchwords: MIGRATION – where applicant provided “bogus document” as evidence of his identity – whether applicant had reasonable explanation for providing the bogus document – whether Tribunal erred in failing to consider merits of matter where satisfied s 91WA of the Act prevented grant of the protection visa sought Legislation: Migration Act 1958 (Cth) ss 5, 5(1), 36, 36(2)(a), 36(2)(aa), 65, 91WA, 91WA(1), 91WA(1)(a), 91WA(2)(a), 476
Migration Regulations 1994 (Cth) sch 2 cls 866.221, 866.221(2), 866.221(4)
Cases cited: BGM16 v Minister for Immigration and Border Protection (2017) 252 FCR 97; [2017] FCAFC 72
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 10 June 2025 Place: Sydney The Applicant: In person, with the assistance of a Bengali interpreter Solicitor for the First Respondent: Mr J Elliott, Clayton Utz The Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3382 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWA16
Applicant
AND: MINISTER IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
11 JULY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs of the proceeding.
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 DOUST:
INTRODUCTION
The applicant, a citizen of Bangladesh, arrived in Australia as an “irregular maritime arrival” in May 2013. At his entry interview, he claimed to have been born in 1987.
He applied to the (then) Department of Immigration and Border Protection, now known as the Department of Home Affairs (Department), for a Protection (Class XD) visa on 11 June 2014. In that application, he stated that his date of birth was in 1982. During the application process, the applicant provided documents showing his date of birth as a 1982 date, and as a 1987 date.
The applicant claimed to fear reprisals by members of the Awami League if he was returned to Bangladesh because of his support for, and involvement in, the Jamaat-e-Islami party.
After the rejection of his application for the protection visa by a delegate (delegate) of the first respondent (Minister) the applicant applied to the (then) Administrative Appeals Tribunal (now Administrative Review Tribunal (Tribunal)) for review of the delegate’s decision. By its decision dated 12 November 2018, the Tribunal determined to refuse to grant the applicant the protection visa. The Tribunal based its decision on s 91WA of the Migration Act 1958 (Cth) (Act), which applies where an applicant has produced bogus identity documents in support of their application, and has failed to provide a reasonable explanation for having done so.
The applicant applied to this Court for judicial review of the Tribunal’s decision pursuant to s 476 of the Act.
For reasons set out below, the application should be dismissed.
EVIDENCE
At the hearing on 10 June 2025, the Court received the following into evidence:
(1)A court book compiled by the first respondent and comprised of relevant documents from the Department’s file concerning the visa application and from the Tribunal;
(2)An affidavit of the applicant dated 4 December 2018;
(3)A birth registration certificate concerning the applicant; and
(4)A birth certificate concerning the applicant.
The latter two documents were the subject of objection from the Minister’s solicitor on the basis that they could not cast light on whether the Tribunal had fallen into jurisdictional error. Although that objection appeared sound, I received the documents on a provisional basis to give the applicant an opportunity to demonstrate their relevance to the questions before the Court. In the event, the applicant did not make out their relevance.
OPERATIVE STATUTORY PROVISIONS
The visa application fell to be determined by reference to s 36 of the Act, which provides, inter alia:
36 Protection visas—criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B)A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Protection obligations
(3)Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4)However, subsection (3) does not apply in relation to a country in respect of which:
(a)the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
(5)Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:
(a) the country will return the non‑citizen to another country; and
(b)the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a)the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.
The Tribunal also had regard to s 91WA of the Act, which provides as follows:
91WA Providing bogus documents or destroying identity documents
(1)The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a)the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
(b) the Minister is satisfied that the applicant:
(i)has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii)has caused such documentary evidence to be destroyed or disposed of.
(2) Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a)has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b) either:
(i)provides documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to provide such evidence.
(3)For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.
The term “bogus document” is defined in s 5 of the Act, as follows:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
ISSUES FOR DETERMINATION
The Court’s jurisdiction is exercisable to correct jurisdictional error.
Jurisdictional error describes a failure, by a person or body that is given authority under a statute to exercise a power, to comply with a condition attaching to the exercise of that power, where that failure has the result that the decision or exercise of power is regarded as lacking the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; and in some cases, makes an erroneous finding or reaches a mistaken conclusion; or fails to observe some applicable requirement of procedural fairness: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2]-[3]. In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: ibid [7].
At the outset of the hearing, I explained to the applicant that the Court’s role is to review the decision of the Tribunal to identify jurisdictional error.
The applicant’s application to this Court dated 4 December 2018 set out three grounds, as follows:
1. The Tribunal failed to assess harm based on my claims.
2. The Tribunal failed to assess the present situation in Bangladesh since I left.
3.The Tribunal made decision without any verification of my genuine documentary evidences [sic] and statement.
Although orders were made by the Court on 3 February 2025 giving the applicant the capacity to file and serve an amended application containing different or further grounds, he did not do so.
Consideration of whether the applicant has demonstrated jurisdictional error by the Tribunal appears below, following a description of the background to the matter.
BACKGROUND AND RELEVANT FACTS
Visa history
The applicant is a Bangladeshi citizen who arrived in Australia by boat in 2013 without a visa.
At his Irregular Maritime Arrival & Induction Interview, the applicant gave his date of birth as 15 April 1987.
On 11 June 2014, the applicant lodged an application to the Department seeking a protection visa (the visa application).
In the visa application, the applicant recorded his date of birth on the Form 866A as 15 July 1982. However, on his Form 866B, the applicant recorded his date of birth as 15 April 1987, and in his statement dated 7 June 2014 provided with the visa application, the applicant described himself as 27 years old, a statement consistent with him having been born in 1987. In that statement, the applicant corrected, by one month, the date he had provided in his entry interview of when he alleged his grocery store had been burnt down by Awami League supporters.
Attached with the visa application was a document purporting to be the applicant’s birth certificate, containing a birth date of 15 July 1982.
In further documents the applicant provided to the Department, he referred to both the 1987 and 1982 birth dates.
The applicant later provided both a birth certificate and a school certificate which stated his date of birth as 15 April 1987.
At his protection visa interview, the applicant stated that his date of birth was 15 July 1982 and his age was 32 or close to 33.
Applicant’s claims for protection
The applicant’s statement lodged in support of the visa application recited that his father had been a member of the conservative Bangladeshi National Party (BNP). The applicant had been a devout Muslim and was initially a BNP supporter like his father, but later joined the Jamaat-e-Islami party (JI).
The applicant recited that he had been increasingly involved in campaigning for JI as a volunteer. He claimed that as a result, he became a target for members of the secular Awami League. He claimed that Awami League supporters had extorted him and in 2012 had assaulted his father and burned down his grocery store.
The Primary Decision
In the primary decision made on 6 February 2015, the delegate assessed the applicant against s 36(2)(a) of the Act (the refugee criterion) and s 36(2)(aa) of the Act (the complementary protection criterion).
The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36 of the Act and cl 866.221 of sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) and accordingly, refused to grant the application for a Protection (Class XA) visa.
The delegate first set out their findings as to the applicant’s identity, about which it raised serious concerns. The findings listed the conflicting documentary and oral information the applicant had provided in the course of his initial maritime entry interview and application for the protection visa in regard to his date of birth. The delegate referred to the inconsistent dates, namely 15 July 1982 and 15 April 1987, which had been identified as the applicant’s date of birth in documents provided to the Department, including scanned copies of a Bangladeshi birth certificate, an education certificate, and the forms involved in the visa application.
The delegate also referred to country information from a report of the Immigration and Refugee Board of Canada which indicated the prevalence of and ease with which fraudulent documents could be obtained in Bangladesh. Ultimately, the delegate was unable to place any weight on the documents provided by the applicant in connection with the application as evidence of his identity.
Following the finding regarding the applicant’s identity, the delegate recited the applicant’s history and migration history, the legal framework governing the decision, and the material before the delegate.
The delegate was satisfied that the applicant is a citizen of Bangladesh for the purpose of assessing protection obligations under the Refugee Convention and for the purpose of assessing the applicant against the complementary protection criterion. The delegate found that the applicant did not have statutory effective protection in a third country.
The delegate then moved to consideration of the applicant’s claims for protection, first summarising the claims, which included, inter alia:
•The applicant’s father was deeply religious and a member of the Bangladesh National Party (BNP).
•The applicant joined the BNP in 1998 while studying and became involved in student groups;
•In 2001 the applicant joined the Jamaat-e Islami (JI) and had a formal role and position as a member and was active during the 2008/2009 election;
•The applicant owned and operated a grocery store that had been extorted;
•In August 2012 the applicant’s father and uncle were assaulted by the Awami League (AL) in their family home;
•In December 2012 the applicant was asleep at his grocery store late at night and woke to find the shop burning down;
•The applicant fled and was notified regularly that the AL were searching for him;
•In January 2013, the applicant was assaulted and kidnapped in broad daylight by AL members at a market in Chittagong; and
•The applicant left Bangladesh on 19 February 2013 and feared being harmed, abused, abducted and/or killed by AL and its supporters due to being JI supporter.
The delegate reiterated concerns regarding the credibility of the applicant, particularly based on the identity information he provided, but accepted that the applicant was a low level supporter of the JI. The delegate’s findings of fact were summarised as follows:
I am willing to accept the following:
•The applicant became a supporter of the JI in 2001 and was a low level member.
•The applicant’s father was the general secretary of his local area’s BNP branch.
•That the applicant was asked as a business owner to provide money to the AL.
•The applicant was attacked in a market in Chauddagram in January 2013.
I do not accept:
•The applicant was personally targeted by the AL for his political opinion.
•The applicant’s grocery store was burned down by AL members.
•The attack on the applicant in Chauddagram in January 2013 was linked to his previous encounters with the AL.
The delegate then moved to their assessment of protection obligations under the Refugee Convention. Ultimately, the delegate was not satisfied that the applicant was an individual to whom Australia has protection obligations. Subsequently, the delegate found that the applicant did not meet the criteria for the grant of the visa under s 36(2)(a) of the Act and cl 866.221(2) of sch 2 to the Regulations.
The delegate also concluded that the applicant was not owed protection obligations by Australia under the complementary protection regime. The delegate was not satisfied substantial grounds existed for believing that, as a necessary and foreseeable consequence of being removed from Australia, there was a real risk the applicant would be subject to significant harm. Consequently, the delegate found that applicant did not meet the criteria under s 36(2)(aa) of the Act and cl 866.221(4) of sch 2 to the Regulations, and refused the visa application.
Tribunal’s decision
The applicant applied to the Tribunal for review of the primary decision.
The Tribunal made a decision on 18 March 2016, which was quashed by this Court on 6 June 2016, and remitted for reconsideration. A further Tribunal decision made 7 April 2017 following the remittal, was also quashed by this Court on 20 November 2017, and remitted for reconsideration.
Following the remittal, the Tribunal conducted a further hearing on 29 October 2018. The Tribunal made the decision that is the subject of the present application on 12 November 2018, setting aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substituting a decision to refuse to grant the applicant a Protection (Class XD) visa. That is, the Tribunal refused to grant the applicant the protection visa he sought.
After reciting the history of the applicant’s visa application, and setting out the relevant law, the Tribunal (in the decision dated 12 November 2018) commenced its consideration of the applicant’s claims.
At [26], the Tribunal noted that at his entry interview on 1 June 2013 the applicant claimed to have been born 15 April 1987. However, in his application for the protection visa he claimed to have been born on 15 July 1982. The Tribunal noted that two birth certificates and two senior school certificates provided to the Department stated the applicant’s date of birth as 15 April 1987 and 15 July 1982.
At [47], the Tribunal recorded that it stated to the applicant that during the course of the application and interview process, the applicant had presented two birth certificates and two senior school certificates, each with different information on it. The Tribunal noted that this was problematic.
At [48], the Tribunal records that it explained to the applicant the consequence of the divergent documents he had provided in support of his application:
48.The Tribunal explained to the applicant that it was required to consider whether s.91WA of the Act applied in his case. The Tribunal discussed with him that as he had produced two birth certificates and other documents relating to his identity containing different information the Tribunal may conclude that at least one of these birth certificates and some of the other documents were bogus documents as defined in the Act, and that if it was satisfied that he had provided these birth certificates and other documents to the Department as evidence of his identity, and if he could not provide a reasonable explanation for providing the bogus documents, the effect of s.91WA is that he cannot be granted a protection visa.
The Tribunal described the documents provided by the applicant at [49] and [50], as follows (footnotes added):
49.The applicant provided the Department with a Birth Certificate in the name of [the applicant[1]], indicating he was born on 15 July 1982 (folio 88 of the Department file). He also provided a Nationality Certificate in this name (folio 87) and a Secondary School Certificate Examination listing the same name and date of birth (folio 86).
50.The applicant also provided the Department with a Birth Certificate in the name of [the first and second names on the 1982 documents[2]], indicating that he was born on 15 April 1987 (folio 85). He also provided a Nationality Certificate in this name (folio 84) and a Secondary School Certificate Examination listing the same date of birth but in the name of [the same name as the documents referred to in [49] above (folio 83).
[1] The name on the documents referred to in [49], comprised three names, with the applicant’s given name shown by an abbreviation.
[2] The name on the documents referred to in [50] comprised two names, being the applicant’s given name in full, and his family name. The third name (a further family name) that appeared on the documents referred to in [49] did not appear on the documents referred to in [50].
After raising the difficulty with the applicant’s documents, the Tribunal asked the applicant to state his name and date of birth. The applicant stated that his date of birth was 15 July 1982 and his name was the name shown on the documents referred to in [49].
The Tribunal then asked the applicant to explain why he had submitted a birth certificate with the 1987 date of birth if his actual date of birth was in 1982. At [52] and following, the Tribunal narrates the exchange between the applicant and the Tribunal. The applicant’s explanations included (at [54]) that his father had obtained the 1987 birth certificate at his request, that he had not known its contents when it had been submitted, and that the 1987 birth certificate had been obtained based on the date of birth shown in the senior school certificate.
The applicant also claimed that the registry officials had asked his father when he had finished school and had nominated the 1987 birth date on that basis.
The applicant then claimed that when his father approached the registry to obtain a birth certificate, the officials had told him that he should go and procure a school certificate verifying the applicant’s date of birth, so his father went and obtained a bogus school certificate.
The Tribunal recorded at [64] how it discussed with the applicant that the information he provided with his application about his place of residence and education had been consistent with him having a 1987 date of birth which suggested that he had deliberately obtained a birth certificate to match that account.
The applicant then claimed that he had “messed up” in his initial interview where he nominated the 1987 birth date, not realising it would be such an important issue.
The Tribunal later recorded (at [71]), the applicant’s admission that he had provided the 1987 birth certificate to the Department knowing that it was wrong.
At [74], the Tribunal asked the applicant why he had told the Department his birth date was in 1987 if he was in fact born in 1982, and recorded that the applicant claimed that at the time of his initial interview he could not recall his date of birth, and later asked his father to obtain a birth certificate and school certificate to match the date that he had mistakenly given the Department. The Tribunal expressed doubt about that explanation given the applicant had also provided an account of his history at that time which was consistent with a 1987 date of birth.
The Tribunal then proceeded to make its assessment under s 91WA of the Act.
At [78], the Tribunal described its task as follows:
78.Section 65(1) of the Act states that the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is precluded by s.91WA of the Act (emphasis added). Section 91WA(1) of the Act requires the Minister to refuse to grant a protection visa to an applicant who provides, or causes to be provided, a bogus document as evidence of their identity, nationality or citizenship, or if the Minister is satisfied the applicant has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, the requirement that the Minister must refuse to grant a protection visa in circumstances contemplated by s.91WA(1) of the Act will not apply if the applicant: first, has a reasonable explanation for the provision, destruction or disposal; and second, either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2) of the Act. Section 91WA is extracted in the attachment to this decision.
The Tribunal at [82] and [83] recorded its satisfaction that the applicant had provided “bogus documents” as described in s 5(1) of the Act, being the birth certificate with the date of birth of 15 April 1987.
At [84] and following the Tribunal considered the question whether the applicant had a reasonable explanation for providing the bogus document.
The Tribunal noted that the applicant had given a number of explanations. First, he had not provided the birth certificate directly and was not aware of its contents (at [86]). Second, that it was a spontaneous error at the entry interview. The Tribunal described the applicant’s evidence about the procuring of the school certificate as confusing.
At [91] and [92], the Tribunal said:
91.As it transpired, the applicant agreed with the Tribunal and stated that he had told his father that he had told the Department that his date of birth was 15 April 1987 and further told the Tribunal that his father obtained a Birth Certificate at the applicant's direction to match the information he had given the Department. Accordingly, the Tribunal finds that the provision by the applicant of a date of birth of 15 April 1987 at the entry interview and the subsequent provision of a Birth Certificate stating a date of birth of 15 April 1987 to the Department is not a mere coincidence, and was knowingly a falsehood. The birth certificate containing the date of birth of 15 April 1987 is a bogus document and the applicant has no reasonable explanation for providing it in light of his maintaining that his actual date of birth is 15 July 1982.
92.Accordingly, the Tribunal finds that the applicant does not have a reasonable explanation of providing a bogus document.
At [94], the Tribunal expressed its satisfaction that s 91WA(1) of the Act applied to the applicant and that the grant of a protection visa was precluded by s 91WA of the Act.
CONSIDERATION
The grounds of the applicant’s application to this Court grounds are as follows (reproduced without alteration):
1. The Tribunal failed to assess harm based on my claims.
2. The Tribunal failed to assess the present situation in Bangladesh since I left.
3.The Tribunal made decision without any verification of my genuine documentary evidences and statement.
The applicant’s grounds were not elaborated on in any written submissions.
Grounds 1 and 2 essentially complain that the Tribunal failed to consider the applicant’s substantive claims for protection.
The Tribunal did not purport to consider those claims, as it posed, and answered, a prior question, namely whether s 91WA of the Act operated in the circumstances to foreclose the applicant from the grant of the visa he sought. The Tribunal’s concluded that s 91WA of the Act so operated. That conclusion was the result of:
(a)The mandatory language of both ss 65 and 91WA(1) of the Act which obliged the Minister to refuse to grant a visa where s 91WA of the Act operated to prevent its grant (Tribunal decision at [78]);
(b)The conclusion by the Tribunal that the applicant had provided a bogus document as evidence of his identify (s 91WA(1)(a) of the Act), namely the birth certificate stating the applicant’s birth date as 15 April 1987 (Tribunal decision at [83]); and
(c)The conclusion by the Tribunal (at [91] and [92]) that the applicant provided that birth certificate as part of a knowing falsehood, and therefore did not have a reasonable explanation for the provision of such document. Had the Tribunal been satisfied the applicant had a reasonable explanation for providing the document, s 91WA(1) would not have operated to prevent the grant of the visa: s 91WA(2)(a) of the Act.
The Tribunal’s conclusion about the operation of s 91WA meant that any assessment of the applicant against either the refugee criterion or the complementary protection criterion in s 36 of the Act would be otiose; there is no obligation to consider the merits of a claim for protection where an applicant falls within the scope of s 91WA(1) of the Act by the production of a bogus document in connection with their claim, and fails to provide both a reasonable explanation for having done so and accurate identify information: BGM16 v Minister for Immigration and Border Protection (2017) 252 FCR 97; [2017] FCAFC 72 at [60], per Mortimer (as her Honour then was) & Wigney JJ.
Grounds 1 and 2 could only describe jurisdictional error by the Tribunal if the Tribunal had erred in concluding that s 91WA of the Act operated in the circumstances.
As to Ground 3, it is incorrect to allege, as this ground does, that the Tribunal failed to verify the applicant’s documentary evidence. As the Tribunal records at [51] – [52], the Tribunal asked the applicant to state his name and date of birth and the applicant did so, nominating the 1982 birth date. The Tribunal proceeded on that basis. It made no adverse finding about the veracity of the birth certificate that contained that birth date.
The focus of the Tribunal, in considering the application of s 91WA of the Act to the circumstances before it, was not upon the genuine documents that had been provided. The Tribunal’s focus was on the bogus birth certificate that the Tribunal was satisfied the applicant had provided to the Department as evidence of his identity, and whether the applicant provided a reasonable explanation for having provided those documents to the Department.
There was no attempt by the applicant to contest the conclusion that he had provided a bogus document. That conclusion was all but inevitable given that that he had provided the Department two birth certificates purporting to be his, which contained dates of birth with five years difference between them.
The only area for contest was whether the applicant had provided a reasonable explanation for the provision of the bogus document, as contemplated in s 91WA(2)(a) of the Act. The Tribunal undertook an evaluation of the applicant’s explanations having regard to the circumstances in which both the bogus document and other documents purporting to establish the applicant’s identity were provided. The Tribunal’s decision records that it engaged in a detailed discussion with the applicant, and that the applicant gave a number of explanations, ultimately claiming that he provided the bogus 1987 birth certificate because he had incorrectly told the Department the 1987 date of birth, and had obtained the bogus birth certificate to match the information he had given the Department. The Tribunal concluded that the provision of the bogus documents was knowingly false (at [91]). That conclusion was open to it in the circumstances. The Tribunal then decided the applicant’s explanation for providing the document was not reasonable in circumstances where the applicant was maintaining his date of birth was in 1982. Noting the applicant’s explanation for his conduct being that he had engaged in deliberate falsehood for reasons which did not make sense to the Tribunal, the conclusion that the applicant did not have a reasonable explanation for the conduct was open to the Tribunal.
At the hearing of the matter the applicant attempted to persuade the Court that the error in the documents lay with the registry office in Bangladesh and that the documents had been emailed directly to the Department without his knowledge. The applicant apologised for what had occurred and claimed that he had played no part in the production of those documents.
Those matters, however sympathetic, do not empower the Court to intervene and grant the relief sought. The task of assessing the applicant’s explanation for his conduct lay with, first, the Minister’s delegate and then the Tribunal. It is not for this Court to undertake its own assessment of the merits of the matter. As no jurisdictional error has been identified in the Tribunal’s consideration of the application of s 91WA of the Act, ground 3 is not made out, and grounds 1 and 2 must also fail for the reasons set out above.
The application must be dismissed, and the applicant should pay the first respondent’s costs.
I order accordingly.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 11 July 2025
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