AZA19 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 847

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AZA19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 847

File number(s):	SYG 563 of 2019
Judgment of:	JUDGE MCCABE
Date of judgment:	6 June 2025
Catchwords:	MIGRATION – application for review of a decision of the Administrative Appeals Tribunal – protection visa – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 36, 476
Cases cited:	Htun v Minister for Immigration [2001] FCA 1802
Division:	Division 2 General Federal Law
Number of paragraphs:	35
Date of hearing:	15 May 2025
Place:	Sydney
Applicants:	The applicants appeared in person
Solicitor for the First Respondent:	Mr M Fisher, Australian Government Solicitor
Second Respondent:	Submitting appearance save as to costs

ORDERS

SYG 563 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AZA19

First Applicant

AZB19

Second Applicant

AZC19

Third Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MCCABE
DATE OF ORDER:	6 JUNE 2025

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

2.The first and second applicants pay the first respondent’s costs in the fixed amount of $6,000.

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. Mr AZA19 and his wife and child are citizens of Bangladesh. They applied for Protection (Class XA) visas in January 2015. Mr AZA19 was the primary applicant; the other applicants did not make separate claims but rely on Mr AZA19. His visa application was refused by a delegate of the first respondent (the minister) in October 2015 because Mr AZA19 was found not to satisfy the applicable criteria in ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth). The applicants sought review of that decision in the Administrative Appeals Tribunal. The Tribunal affirmed the delegate’s decision.

2. The applicants say the Tribunal’s decision is affected by material jurisdictional error. Specifically, they argue the Tribunal failed to consider aspects of their claim. That claim focused on the risk the applicant and his family might be harmed if they returned to Bangladesh because Mr AZA19 had been active in opposition politics in Bangladesh prior to his departure. Mr AZA19 fears supporters of a rival party might target them.

3. At the hearing before me, the applicant’s criticism of the Tribunal’s decision evolved somewhat. Mr AZA19’s wife, the second applicant who is known in these proceedings as Ms AZB19, made submissions on behalf of the family. She said the real threat they faced arose out of the fact Bangladesh was in a state of turmoil at present. Ms AZB19 said law and order was breaking down. She argued the family should not be sent away from the safety of Australia in those circumstances. She made a specific appeal on behalf of her son. She said he was likely to be significantly disadvantaged if he were required to return to a country where he had not lived for many years.

4. The main thrust of the applicants’ submissions at the hearing was directed towards the unfairness of giving effect to the Tribunal’s decision in the circumstances. It appears the applicants were hopeful the Court might be able to reach a different conclusion to the one reached by the Tribunal. Unfortunately, as I explained to the applicants at the hearing, the role of the Court is limited under s 476 of the Act. The Court may only intervene when it is satisfied there is material jurisdictional error. The available remedies are narrow. I cannot order the minister to grant the applicants a protection visa, which appears to be their expectation.

5. The Tribunal’s decision is not affected by material jurisdictional error. That means the application for review must be dismissed. I explain my reasons for that conclusion below.

   BACKGROUND

6. The application for a protection visa is reproduced in exhibit one (the court book) at pp 1ff. The application includes an unsigned statement in Mr AZA19’s name at pp 86ff. The statement suggests Mr AZA19 first became politically active in 2007 while he resided in Italy. Mr AZA19 was interviewed by the delegate on 24 July 2015. He was asked to explain perceived inconsistencies and gaps in the evidence. One of the inconsistencies related to the question of when Mr AZA19 went to live in Italy. Mr AZA19 told the delegate at an interview that the statement was written by a lawyer who may have fabricated evidence. Stamps in Mr AZA19’s passport suggest he arrived in Italy for the first time in 2010.

7. The delegate’s decision to refuse the application was made on 2 October 2015. A copy of the decision is reproduced in the court book at pp 107ff. The delegate found Mr AZA19 was not a credible witness. His evidence was said to be vague and implausible. He was unable to substantiate any of his claims. The delegate also found Mr AZA19 had an opportunity to claim asylum in Italy but failed to do so for reasons that were not satisfactorily explained. The delegate noted Mr AZA19 was focused on retaining access to medical treatment for his son in Australia.

   THE TRIBUNAL’S REVIEW

8. The applicants applied to the Tribunal on 21 October 2015. Mr AZA19 provided additional information in support of the claims. The material included a statutory declaration which is reproduced in the court book at pp 163ff. In that document, Mr AZA19 says he became involved in student politics with the Bangladeshi Nationalist Party (the BNP) while studying in the late 1990s. He said his political activities interrupted his studies. He recalled taking on an organisational role in a district or ward branch of the BNP. He said:

   Due to my involvement in the political activities of the BNP, my political rivals kept threatening me. Every day I received death threats. I was also harassed by the police various times due to my involvement in politics.

9. Mr AZA19 said he decided to leave Bangladesh in 2010 because of the risk to his life. He travelled alone to Italy where he resided for just short of four years. He said he continued to be harassed by the BNP while he was in Italy. He claimed opponents of the BNP damaged his property while he was away. But he also said he was unhappy in Italy and returned to Bangladesh in September 2014. He claimed he was harassed upon his return by his political opponents. He departed Bangladesh for Australia with his family in December 2014.

10. A reference provided by an official of the BNP confirmed Mr AZA19 was an organiser with the BNP prior to his departure for Italy. A copy of the (translated) reference is reproduced in the court book at pp 167-168. The referee notes Mr AZA19 left for Australia after receiving threats or murder. The reference concludes: “[h]e is returns to Bangladesh, there is fear of his murder”.

11. A reference from an official with the Australian emanation of the BNP confirms Mr AZA19 has worked as an activist for the BNP within the Bangladeshi community in Australia. It also talks about the threat should he return.

12. A submission to the Tribunal provided by the applicants’ migration agent is reproduced in the court book at pp 169ff. It described the political situation and civil disorder in Bangladesh. It also argued (see pp 192-193 at [30]-[32]) Mr AZA19 was likely to be targeted if he returned on account of his political beliefs and history. The submissions suggested internal relocation was not an option.

13. The Tribunal hearing was on 2 August 2018. The applicants attended with their representative. The Tribunal ultimately decided to affirm the delegate’s decision on 14 February 2019. A copy of that decision is reproduced in the court book at pp 252ff.

14. The Tribunal’s reasons for decision commence with a conventional exposition of the procedural history and the criteria applicable to an application for a protection visa. It then proceeded to recount the claims and evidence. The Tribunal noted (at [41]) Mr AZA19 had said the applicants should be given protection visas because of his son’s medical conditions and the lack of educational opportunities for him in Bangladesh. The Tribunal also summarised the relevant country information report produced by the Department of Foreign Affairs (the DFAT report).

15. The Tribunal commenced its evaluation and reported its findings at [44]ff. After summarising the applicants’ claims and establishing the country of reference was Bangladesh, the Tribunal focused on the claims made in the statement lodged with the visa application. The discrepancies in that statement and the inconsistencies with material provided subsequently – for example, the confusion over when Mr AZA19 went to Italy – were discussed at the hearing. Mr AZA19 had said his former representative had prepared the statement. He acknowledged it might contain errors. The Tribunal found (at [51]):

    …at best, the applicant was indifferent about whether the content of his statement, made in support of his application to Australian authorities for a protection visa, contained true or untrue information. As raised with the applicant at the hearing this causes the Tribunal to have concern about his general credibility including his credibility in relation to his, now amended, claims.

16. Having made that observation about Mr AZA19’s credit, the Tribunal proceeded to consider particular claims.

17. The Tribunal found Mr AZA19 moved to Italy in 2010 for work, not because of any fear arising out of political activities: at [52]. The Tribunal reached that view because:

    ·Mr AZA19 cited ‘work’ in his application form as a reason for going to Italy. When questioned about this at the hearing, the Tribunal records Mr AZA19 saying he went to that country for employment and to save his family even though that meant leaving the family behind: at [56].

    ·He did not take the opportunity to stay in Italy when he was apparently entitled to do so – something he surely would have done if he actually feared harassment in Bangladesh: at [53]-[55]. The Tribunal recorded suggesting to Mr AZA19 that he had left Italy for economic reasons: at [58]. The Tribunal reasoned he would not have returned to Bangladesh if he were genuinely afraid: at [60].

18. The finding about Mr AZA19’s motivation for moving to Italy and his preparedness to return to Bangladesh without seeking protection in Italy was central to the Tribunal’s finding that Mr AZA19 did not genuinely fear harassment in Bangladesh at the time. The Tribunal was also not persuaded by the claims Mr AZA19 was harassed while in Italy because those claims were vague and unsubstantiated (although the Tribunal noted Mr AZA19 removed his shirt in the hearing to display what he claimed were scars caused by assaults he experienced): at [62]. The Tribunal also noted the applicants had lived in the same address in Dhaka for many years, which was not consistent with Mr AZA19’s claims of danger.

19. The Tribunal found Mr AZA19 had some involvement in BNP activities after he moved to Australia. The Tribunal relied on the DFAT report to conclude it was unlikely Mr AZA19 would face a real chance or real risk of serious or significant harm on account of those activities if he returned home, even if he resumed low-level political activities. The Tribunal noted the description of his activities in Australia and Bangladesh contained in the letter from the local BNP official was at odds with Mr AZA19’s own evidence. The Tribunal placed no weight on the letter. It reached the same view regarding the letter of reference from the BNP official in Bangladesh because Mr AZA19 acknowledged the letter had been written at his request and on the strength of information he supplied. As such, the Tribunal found the letter was essentially self-serving.

20. The Tribunal also considered the claim that Mr AZA19’s son would be unable to get medical care if he returned to Bangladesh. There was limited evidence before the Tribunal about the son’s condition. While the Tribunal acknowledged the quality of care was likely to be better and more affordable in Australia, it was not satisfied the claim was made out. The Tribunal was also unpersuaded by the prospect of the son experiencing educational disadvantage. It concluded none of the applicants would suffer serious or significant harm in Bangladesh because of the son’s medical condition or its treatment or because of his lack of educational opportunities: at [69].

21. The Tribunal formally concluded (at [70]) the applicants were unable to meet the criteria in ss 36(2)(a) or (aa) for a protection visa.

    THE APPLICATION FOR JUDICIAL REVIEW

22. I explained the role of the Court in these proceedings at the outset of the hearing. I made clear to the applicants that the Court was required to focus on whether the Tribunal’s decision was affected by material jurisdictional error. I provided an explanation of that concept to the applicants to assist them, and to help manage their expectations. Mr AZA19 said at the outset that he preferred his wife to make submissions on his behalf and that of the family.

23. The application for judicial review identifies three grounds of review. I will deal with each of those grounds below before addressing the applicants’ claims with respect to their son that may be regarded as a separate ground of review, albeit one that was not properly articulated in advance of the hearing.

24. The first ground contends the Tribunal failed to consider an integer of their claims and relevant considerations. The particulars of the claim allege the Tribunal erred in failing to consider whether Mr AZA19 had political opinions that were hostile to the Awami League. The particulars contend the Tribunal focused on the significance of Mr AZA19 being a member of the BNP, which was not the same thing.

25. When I asked Ms AZB19 about this at the hearing, she was unable to provide any assistance. She preferred to focus in her submissions about the risks to the family if they were to return to Bangladesh now given the instability in that country. While I acknowledge that is a concern for her, it is not directly relevant to the questions which arise on this appeal.

26. As it happens, I am satisfied this ground fails at a factual level. Paragraph 34 of the Tribunal’s reasons make clear the Tribunal was aware of the subtle distinction between being a BNP supporter and being a critic of the Awami League:

    It is submitted that due to the applicant’s political opinion and his political activities, particularly in Australia, in Bangladesh he would be perceived as a person holding views against the government in power. It is submitted that the applicant holds a political opinion against the government in power and is/has been/will be involved in activities to change that government; he will be targeted because he supports the BNP and due to his activities against the Awami League government. It is submitted that the applicant is a BNP political activist involved with local BNP political activities, that he is a strong supporter of the BNP and as a person who has a profile he will be targeted and harmed on return to Bangladesh. It is submitted that the applicant is not an ordinary member of the BNP; he has a political profile that would attract his persecutors to target him for harm to stop his political activities. It is submitted that the applicant would be identified and face serious harm in his country due to his past, present and future political activities. Further it is submitted that the reports and recent incidents indicate that not only high profile BNP political leaders but also local level BNP political supporters face serious harm from Awami League supporters. It is submitted that country information reports clearly establish that authorities in Bangladesh are either unwilling or unable to provide protection to people like the applicant; the applicant cannot get state protection because of his political opinion as a supporter of the BNP and an opponent of the Awami League.

27. The Tribunal acknowledges the distinction again at [44], and it makes a finding at [54] which expressly refers to Mr AZA19’s “pro BNP/anti Awami League political activities”. It makes the same distinction at [67] when it says in the course of making a finding about the risk of harm:

    …The Tribunal accepts that the applicant will be involved in BNP politics at a low level if he returns to Bangladesh, and that he will be perceived as a low level supporter of the BNP, and hence opposed to the Awami League which is in power in Bangladesh, in much the same way as he has been in the past. [emphasis added]

28. In written submissions, the minister argued it was unclear whether the applicants made the very distinction they say the Tribunal ignored when they were making submissions before the Tribunal. Be that as it may, the Tribunal was clearly aware it needed to consider the consequences that flowed from being a member of the BNP and from being critical of the Awami League. This ground must fail.

29. I turn to the second ground identified in the application for judicial review. The applicants contend the Tribunal failed to consider the applicants’ claim under the Complementary Protection ground. In particulars, it is contended there was an implicit submission made to the Tribunal that the third applicant would be denied medical treatment by authorities who took exception to Mr AZA19’s political activities. The applicants say that claim was ignored.

30. The minister says this ground is misconceived, and he is right. There was no need to consider this claim (to the extent it was clearly made) given the factual findings the Tribunal made about the true extent of Mr AZA19’s political activities and the way they would be perceived. The Tribunal was not satisfied Mr AZA19 faced the risk that he claimed. There was no need to explore whether his son was indirectly at risk in those circumstances.

31. The third ground asserts without particulars that the Tribunal failed to consider the applicants’ claims cumulatively. It is unclear what the applicants meant by this ground. I acknowledge the Tribunal is required to consider the claims as a whole. That means an applicant may still succeed where a series of relatively low-probability events are considered cumulatively, as opposed to being considered in isolation. The obligation to consider all the essential elements of an applicant’s claim cumulatively arises whether or not the applicants frame their submissions in that way: see, generally, Htun v Minister for Immigration [2001] FCA 1802 at [7] per Merkel J.

32. That said, there is no basis for criticising the Tribunal’s reasoning on this ground. The Tribunal squarely addresses the material before it and makes findings about the risk of harm. The applicants have not explained what it missed. While they plainly believed the Tribunal should have made different findings, the applicants have not explained how the Tribunal was in error when it did so. This ground must fail.

33. That leaves only the question over the relevance of the third applicant’s medical condition and education. The Tribunal considered that claim and found there was not a real chance or real risk that that any of the applicants would suffer serious or significant harm if he were to return to Bangladesh. Ms AZB19, giving evidence from the bar table, argued her son would be disadvantaged if he were to return, because he (and they) would be unsafe as Bangladesh is in a state of turmoil. She also said her son would be disadvantaged in educational terms because he has been schooled in Australia and may not have a good command of the language. While I acknowledge repatriation might be a daunting prospect at this juncture after her son has grown up here, that is not a criticism of the Tribunal’s decision which was made in February 2019. The submissions are misconceived because they fail to identify an error in what the Tribunal decided.

    CONCLUSION

1. The application for judicial review is dismissed.

2. That leaves only the question of costs. I discussed this issue with the parties at the conclusion of the hearing. I am satisfied it is appropriate that costs follow the event – although they should not be awarded against the third applicant, who is a minor. The minister has plainly incurred costs in defending these proceedings and those costs will otherwise have to be met out of public monies. Mr Fisher, who appeared for the minister, asked for an award of costs in a fixed amount of $6,000. He pointed out that amount is below the amount indicated in the Court’s scale; he says it approximates the amount of costs actually incurred on the file. I accept that amount is reasonable and proportionate to the work undertaken in this case, and I make an award in that amount against the first and second applicants.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

Associate:

Dated:       6 June 2025