BKS19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 960
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BKS19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 960
File number(s): SYG 854 of 2019 Judgment of: JUDGE MCCABE Date of judgment: 20 June 2025 Catchwords: MIGRATION – Application for judicial review of decision made by Administrative Appeals Tribunal – whether the Tribunal’s reasoning was unreasonable in relation to accepting the applicant’s claim about potential harm – whether the Tribunal acted unfairly – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 29 May 2025 Place: Sydney Applicant: The applicant appeared in person Solicitor for the first respondent: Ms C Saunders (Australian Government Solicitor) for the first respondent Second respondent: Submitting appearance, save as to costs ORDERS
SYG 854 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BKS19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
20 JUNE 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 $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:
Mr BKS19 is a citizen of Bangladesh. He is currently in Australia on a bridging visa while litigation over his unsuccessful application for a Protection (Class XA) (subclass 866) visa plays out. Mr BKS19 claimed he was at risk if he returned to Bangladesh. He said a disgruntled former employee with political connections had made false allegations which implicated him in a murder.
A delegate of the minister (the first respondent) rejected the application for a protection visa. The Administrative Appeals Tribunal affirmed that decision in 2019. The Tribunal's decision turned on questions of credit. The Tribunal had concerns about the reliability of the evidence that had been provided in support of the claim that the applicant was at risk in the relevant sense in connection with the murder investigation.
Mr BKS19 says the Tribunal's decision is affected by material jurisdictional error. In particular, he says the Tribunal was wrong to conclude he was not at risk as a result of the allegations. He also argued the Tribunal denied him the opportunity to provide more evidence in relation to his claims. Lastly, there is a suggestion the Tribunal should have done more to verify documents that formed part of Mr BKS19's claim if the Tribunal doubted their veracity.
The Tribunal's decision is not affected by material jurisdictional error. The application for judicial review must therefore be dismissed. I explain my reasons for that conclusion below.
BACKGROUND
The applicant was a businessman in Bangladesh. He owned and operated a fashion design business in that country which he commenced in 2006. In a statement attached to the application for a protection visa, he explained he took out a series of business and personal loans. He was unable to repay all the loans and his business collapsed in 2011. His default on the loan repayments brought litigation and other unwelcome attention from irate creditors.
The threats from creditors were a feature of Mr BKS19's claim for protection when it was filed. A copy of the application is reproduced in exhibit one (the court book) at pp 1ff. His statement is reproduced at pp 36 of the court book. The statement concluded with a brief but tantalising reference to the applicant being involved in a murder. Over time, that aspect of the claim has assumed more significance in his application for a visa. The applicant sought to clarify his involvement in that incident during an interview with the delegate. In that interview, Mr BKS19 insisted he was not personally involved in the murder. He said police reports suggesting he was involved were provided by a former employee who had a grudge against him after that individual's employment was terminated. A translated copy of the 'first information report' and a statement given to police by the former employee are reproduced in the court book at pp 82ff.
The delegate's decision dated 23 October 2015 is reproduced in the court book at pp 118ff. The delegate was not satisfied the applicant was a credible and reliable witness. The delegate doubted the veracity of some of the documents the applicant provided in support of his claim. After concluding Mr BKS19 was not a genuine applicant for a protection visa, the delegate rejected the application.
THE TRIBUNAL'S REVIEW
Mr BKS19 sought review of the delegate's decision in November 2015. The file appears to have languished for some time before a hearing invitation was issued on 7 September 2018. It does not appear that the applicant provided the Tribunal with any additional documents or information in advance of the hearing (apart from a fresh copy of the applicant's passport; the old one was said to be lost). The hearing was held on 16 October 2018. The applicant attended. He was assisted by an interpreter. The Tribunal's decision to affirm the delegate's decision is dated 20 March 2019. A copy of that decision is reproduced in the court book at pp 159ff.
The Tribunal's statement of reasons begins by correctly identifying the issues to be decided. It says (at [3]):
The issues in this review are whether there is a real chance, if the applicant returned to Bangladesh, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.
The Tribunal thereafter sets out a conventional discussion of the criteria in s 36(2) of the Migration Act 1958 (Cth) and related provisions before mentioning Ministerial Direction No 56. The statement of reasons then recounts the applicant's claims and the evidence in support. The Tribunal noted the applicant travelled extensively for work before he had come to Australia. The Tribunal also noted the applicant's history with his creditors in Bangladesh that had featured in his claim. The Tribunal records Mr BKS19 confirmed most of the creditors had been repaid; as a result, he had become less fearful of harassment at their hands were he to return: at [24]. At [28], the Tribunal records asking the applicant about his main fear if he returned to Bangladesh. He said he was afraid the police would charge him in connection with the murder. He said he might be imprisoned immediately in that event. He was fearful of being harmed while in custody. The Tribunal noted (at [30]) the applicant said he was not fearful of harm on account of his political affiliation.
The Tribunal dwelt at length on the circumstances surrounding the murder and the subsequent investigation. The Tribunal noted the applicant's insistence that he was not involved in the murder which occurred in 2015. After recounting the substance of the applicant's account of what occurred, the Tribunal records asking the applicant about the status of the investigation. The applicant noted he had obtained and supplied the 'first information report' which named him as a person of interest, and suggested the police had been looking for him in his mother's village.
After exploring that evidence, the Tribunal identified troubling inconsistencies between the applicant's claims in his original statement and the evidence he gave subsequently about his involvement in, and knowledge of, the incident: at [41]. The Tribunal said (at [42]-[44]):
42. The Tribunal has a number of concerns about the veracity and credibility of the applicant's claims relating to the accusation of his involvement in this murder incident. The original mention of the claim in his written statement is different to what he told the Tribunal and the description in the FIR submitted to the Department in significant respects. In his written statement he said he was involved in an incident where a man was killed for a fight over a government contract. However in his testimony to the Tribunal he indicated he was not present and that the person killed was the nephew of his former employee whose employment he terminated in 2012. He made no mention of any government contract dispute and said he believed he was named in the complaint because of his old grievance with the former employee. The FIR names the applicant among numerous individuals, and states nothing about the motivation or context of the attack. The Tribunal notes that the FIR also only mentions the applicant as an accused but does not indicate he played any material part in the attack.
43. The Tribunal has concerns about the genuineness and veracity of this claim regarding an alleged 'false claim' instigated against the applicant. It finds the discrepancies in the details about the matter raise issues about the reliability and credibility of the evidence. While there is support in independent information that fabrication of allegations in Bangladeshi courts does occur and is in fact not an uncommon phenomenon it is more common in the context of politically motivated actions.
44. In the present case, on the evidence before it. the Tribunal does not accept the applicant's claim that he will be charged in relation to a murder incident on the basis of a false complaint against him. It finds the evidence on which his claim is based lacks reliability or credibility. Even if the FIR is genuine, the content of the complaint against him does not support his claim that he will be charged with murder. His ability to depart the country also does not support that he is of adverse interest to the authorities in respect of a murder charge.
The Tribunal went on (at [45]) to note a refugee must have a well-founded fear of persecution for one of the reasons stated in s 5J(1)(a) of the Act - namely a fear of persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion". In this case, the applicant’s nemesis was said to be a person motivated by personal animus following an employment dispute. The Tribunal found a fear of persecution in those circumstances would not ordinarily satisfy s 5J(1).
The Tribunal concluded at [46] it was not satisfied on the evidence that the applicant faced "a real chance of harm in the form of being charged with murder and any associated consequences". It also found it was not satisfied the applicant's fear of harm arising out of a false complaint was for any of the stated reasons in s 5J(1)(a). In those circumstances, the Tribunal rejected the applicant's claim that he was a refugee. It subsequently found (at [52]) the applicant did not satisfy the alternative criterion in s 36(2)(aa) given the finding he was unlikely to be arrested and charged with murder. For good measure, the Tribunal also found the applicant did not face a real risk of significant harm at the hands of his creditors: at [53].
THE APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review. He identified three grounds of review. The first and third grounds dispute the Tribunal's findings in relation to the risk arising out of the murder investigation. I will deal with these two grounds together below. I will then address the second ground which disputes the fairness of the hearing.
Mr BKS19 was unrepresented in these proceedings. At the beginning of the hearing, I explained the comparatively narrow role of the Court and the need to focus on whether the Tribunal's decision was affected by material jurisdictional error. I explained that concept and emphasised the importance of identifying and evaluating errors in the Tribunal's reasoning and information-gathering rather than simply expressing disagreement with the outcome. I then heard from the solicitor for the minister before turning to Mr BKS19. As it happened, Mr BKS19 did not have any submissions of substance in relation to any errors. He focused instead on his willingness to provide additional evidence that would make good on his claim. He also pointed out he was worried about his family that remained behind in Bangladesh. He said his children did not attend school because of fears for their safety.
Taken at their highest, grounds one and three amount to an argument that the Tribunal's decision was unreasonable in the sense it was illogical, and did not have any basis in the evidence. The minister argued that grounds one and three are without merit. In written and oral submissions, the minister's solicitor said the Tribunal gave proper reasons for not accepting the applicant's claims about potential harm. Those reasons are found at [41]-[45] in the statement of reasons. The Tribunal refers there to:
·inconsistencies in the applicant's account;
·the fact the 'first information report' (assuming it was genuine) did not suggest the applicant was to be charged; and
·the fact the applicant was able to leave Bangladesh without hindrance which would be unlikely if he were the focus of a criminal investigation.
The minister pointed out the Tribunal added that if there was risk of harm, it was not for reasons that would be recognised under s 5J(1)(a).
The minister is right. The Tribunal's reasoning proceeds logically from its findings of fact. Those factual findings are open on the evidence the Tribunal discussed. The applicant did not point to anything unreasonable about the reasoning or the outcome, and the applicant had nothing to say about the Tribunal's finding that the applicant did not face any risk for a reason identified in s 5J(1)(a). Grounds one and three must fail.
That brings me to the second ground. The minister notes this ground includes two separate complaints. One of them appears to arise out of the Tribunal's approach to the documents that may have been non-genuine - most obviously the 'first information report'. The applicant contends the Tribunal acted unfairly because it should have verified those documents if it had doubts. He is wrong. While s 427 of the Act says the Tribunal can take the initiative to refer documents for an investigation (eg, a forensic examination), it is under no general obligation to do so: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ. These were the applicant's documents. He knew from the delegate's decision that there was an issue with their genuineness. The applicant was in the best position to establish their provenance. In any case, the Tribunal said it would not have reached the required level of satisfaction even if it assumed the 'first information report' was genuine: at [44]. It follows this complaint is misconceived.
The second complaint under this ground suggests the Tribunal failed to give the applicant sufficient opportunity to explain his case and provide additional material. That complaint cannot be sustained. The Tribunal complied with its procedural fairness obligations. It invited the applicant to attend a hearing. It provided him with an opportunity to present evidence and make submissions. The applicant could not have been surprised by the focus of the hearing: the issues before the Tribunal (including the issues of credit) had already been explored in the delegate's decision. There does not appear to be anything about the hearing that suggests the Tribunal was biased. The Tribunal was not obliged to give the applicant a running commentary on its thinking as the hearing unfolded so the applicant could shift his stance. A hearing should not be regarded as an opportunity for an applicant to rehearse their case before returning on a later date to fill in the gaps the Tribunal identifies. As Hayne, Kiefel and Bell JJ explained in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [82]:
It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. …
The second ground must be rejected.
CONCLUSION
The application for judicial review must be dismissed. That leaves only the question of costs. At the conclusion of the hearing, the minister’s solicitor asked that an order of costs be made in the event the applicant was unsuccessful. The minister submitted that costs in the fixed amount of $6,000 would be appropriate. While that amount is less than the amount indicated on the Court’s scale, the minister’s representative informed me it approximated the amount of costs that have been incurred including preparing the Court book and submissions as well as preparation and attendance at the hearing.
The applicant agreed the costs order the minister sought was appropriate in the event he was unsuccessful.
I am satisfied it is appropriate to make a costs order in favour of the minister. 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. I also accept the amount should be fixed at $6,000 given that approximates the amount of costs actually incurred.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 20 June 2025
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