BPF19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 925
•16 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BPF19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 925
File number(s): SYG 957 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 16 June 2025 Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to give active consideration to clearly articulated claims – whether the Tribunal fell into jurisdictional error by adopting legally unreasonable reasoning in relation to its findings regarding the applicant’s credibility – both grounds of judicial review have no merit – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 424A, 499
Migration Regulations1994 (Cth) Schedule 2
Cases cited: Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223
BUZ20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 349
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Minister for Immigration arid Citizenship v Li (2013) 297 ALR 225
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Singh v Minister for Home Affairs [2019] FCAFC 3
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 4 June 2025 Place: Parramatta Counsel for the Applicants: Mr Young Solicitor for the Applicants: Mr Haque (Ms Haque and Associates) Counsel for the First Respondent: Mr Johnson Solicitor for the First Respondent: Mr Valliappan (Australian Government Solicitor) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 957 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BPF19
First Applicant
BPG19
Second Applicant
BPH19 (BY THEIR LITIGATION GUARDIAN BPF19)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
16 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The Application is dismissed.
3.The first and second Applicants are to pay the First Respondent’s costs fixed in the sum of $8,371.30.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) (as it was then), dated 19 March 2019, affirming a decision of a delegate of the First Respondent (the delegate) refusing to grant the applicant a Protection (Class XA) (subclass 866) visa (the visa).
For the reasons set out below, the application must be dismissed.
BACKGROUND
The applicants are citizens of Bangladesh.
On 20 November 2015, the applicants arrived in Australia as holders of Visitor (Class FA) (subclass 600) visas. On 16 February 2016, the applicants applied for protection visas.
The second and third applicants are included in the first applicant’s (the applicant) visa application as members of the family unit. Only the first applicant made protection claims.
On 14 July 2016, a delegate of the Minister made a decision to refuse to grant the applicants the visa.
On 9 August 2016, the applicants lodged an application with the Tribunal.
On 19 March 2019, the Tribunal affirmed the decision under review.
THE TRIBUNAL’S DECISION
The Tribunal set out the relevant criteria for the grant of a protection visa as set out in s 36 of the Migration Act 1958 (Cth) (“the Act”) and Schedule 2 to the Migration Regulations 1994 (Cth)(“the Regulations”). The Tribunal had regard to the matters set out in Ministerial Direction No.56 made under s 499 of the Act.
The applicant’s claim for protection is made on the ground that he supports the Bangladesh Nationalist Party (“BNP”). From [9] to [16], the Tribunal set out the account of events, provided to both the delegate and the Tribunal on which the applicant’s protection claims are based. They can be summarised as follows:
·The applicant undertook activities for the student wing of the BNP during school and college. The applicant remained in his native area from 1999 to 2009 and continued to help the BNP in this time [9].
·The applicant started operating a business in 2009. From this period, the applicant continued political activities, such as organising and attending meetings and demonstrations in a region away from his native area. The applicant was never harmed by the Awami League [11].
·In August 2014, the applicant stated that he was blindfolded and taken from his home by people who were either plain clothes police or members of the Awami League and beaten severely [12].
·In early 2015, the applicant was appointed as an executive member of a committee for the BNP. The applicant claims that on 25 March 2015, people from the Awami League entered the party office in his native area and physically harmed BNP members ([13]). The applicant sustained injuries and, after receiving treatment at the hospital, planned and organised a protest in response to the attacks on BNP members [13].
·The protest took place in early April 2015. The applicant claims that police attended his parents’ home, where the applicant stayed with his wife and children. Police informed the him that there was a warrant issued for the applicant’s arrest as he had been in possession of illegal firearms. The applicant was urged by his family to flee, and he also made his own decision to flee Bangladesh [14].
·The applicant fled and went into hiding with different friends [15]. From this time, the police attended the applicant’s parents’ home every week in his native area, trying to apprehend him. The applicant found a ‘broker’, who was able to obtain a visitor visa to Australia for him. The visa was issued on 8 September 2015. The applicant left Bangladesh on 20 November 2015 [16]. The police only ceased their attempt to apprehend the applicant after they were aware that he was in Australia.
The Tribunal discussed its concerns as to the applicant’s credibility in the following areas:
·The Tribunal was concerned about the applicant’s evidence as to when and why he closed his business, ultimately rejecting his responses and finding that they were an attempt to reconcile inconsistent evidentiary accounts. The applicant had initially stated that he closed his business in February or March 2015, because of demands for money from the Awami League. Subsequently, he claimed that he closed his business in April 2015 after the police attempted to apprehend him[17]-[20].
·The applicant’s visitor visa attached a letter stating that he was the chairman of a sweater manufacturing company since 2007. However, the Tribunal noted this was inconsistent with his evidence that he operated a food export business from 2009 to April 2015([22]-[23].
·The applicant stated to the Tribunal that he ceased operating his business in and around April 2015 and went into hiding, however, in his visitor visa application, the applicant stated he was still employed and working in the garment business in September 2015 [23].
·In response to the discrepancy in his evidence raised by the Tribunal, the applicant stated that the letter purportedly signed by him as a chairman of the garment business and the account statement issued by the bank were prepared by his broker [25], and he did not hold any knowledge about the documents. The Tribunal acknowledges that the applicant claims to have signed the documents unknowingly in circumstances where he was trying to escape from Bangladesh, however, it rejected that the applicant would sign the papers without knowing of their contents [26].
·The Tribunal had difficulty accepting the applicant’s reasons as to why he only left Bangladesh in November 2015, even though he gave evidence that he had gone into hiding in April 2015 [27]-[41]. The applicant maintained that he had trouble locating a broker and raising funds to pay the broker, which led him to remain in Bangladesh for an extra period. The Tribunal was not persuaded by this evidence [33].
·The Tribunal raised inconsistencies with the applicant’s evidence in a written statement as they found that, despite stating he had not departed Bangladesh earlier as he needed extra time to raise funds, in the written statement to the Tribunal, he stated that he was raising funds to purchase flight tickets and pay for expenses in Australia, as well as to arrange a departure date and time with a particular immigration officer who would help him through the airport [38].
·The Tribunal put to the applicant that evidence attached to the applicant’s visitor visa showing an itinerary with a flight reservation to depart from Bangladesh on 29 September 2015, which the applicant did not board, cast concern over the truthfulness of his claims. [34].
·The Tribunal found the applicant’s evidence about the arrest warrant issued at his parents’ home and the alleged court case against him to be “ambivalent, diffident and vague” [47]. The applicant said there “might” be a case against him, however, he had not seen any paperwork to this effect [46]. The Tribunal noted this was inconsistent with the claims made in the letter from a BNP member and his claim in the protection visa application that there is a case against him.
The Tribunal found that there was no credible evidence as to why the applicant left Bangladesh and why he does not want to return there; that he suffered harm from 2009 when he started living in a region in Bangladesh, and that the Awami League, the police or anyone in Bangladesh seeks to harm him.
The Tribunal noted that it considered documents submitted by the applicant to corroborate his claims, however ultimately decided that these documents did not outweigh the credibility concerns with respect to the events the applicant claims occurred from early 2015 [53].
The Tribunal was willing to accept that the applicant undertook political activities prior to 2009, when he was still a student, and he undertook political activities in Australia. However, there was no credible evidence about the applicant’s political activities after 2009, or that the Bangladesh government holds any adverse interest in the applicant. On this basis, the Tribunal considered that the risk of the applicant suffering harm in Bangladesh was remote.
The Tribunal was not satisfied that the applicants satisfied s 36(2)(a) and (aa) of the Act for the valid grant of protection visas.
GROUNDS OF JUDICIAL REVIEW
The applicant filed a further Amended Application on 16 May 2025 advancing six grounds of review. However, on the day of the hearing, Counsel for the applicant only formally pressed two new grounds, which will now be taken as grounds one and two. They are as follows (verbatim):
1.The Second Respondent made jurisdictional error in failing to give active intellectual consideration to the clearly articulated claims of the Applicant that he had been abducted and tortured by police in August 2014 and that he had been assaulted and admitted to hospital because of an attack from supporters of the Awami league in March 2015.
2.The Second Respondent made jurisdictional error by adopting legally unreasonable reasoning and findings about in relation to credibility findings based on " concerns about aspects of the Applicant's oral evidence" .
THE APPLICANT’S SUBMISSIONS
The applicant principally argues that the adverse credibility findings drawn by the Tribunal can be challenged if they are irrational or legally unreasonable.
The applicant stated in paragraphs 7-10 of the statement provided in support of the visa application that he was attacked in March 2015, and this led to his hospitalisation. This pushed the applicant to pay a broker money for visas for Australia.
The applicant argues that in the face of this evidence, the Tribunal “almost exclusively” only focused on the arrest warrant issue.
At [46] of the decision record, the Tribunal stated:
The applicant is claiming that police went to the home of his parents and told them that a warrant had been issued for his arrest without actually showing them an actual document. On that basis he says that there might be a case against him but he has not seen any paperwork for that. The Tribunal is sceptical of that account as whether or not there is a case against him is something that the applicant himself would want to know. He did not claim to have had inquiries made about that. Further, his diffident and ambivalent evidence is inconsistent with the claim made in the letter from a BNP member and his claim in his protection visa application form that there is a case against him. The Tribunal found the applicant's diffidence and ambivalence on this subject to cast further concern over his credibility.
In light of this, the applicant contends that he could only have had “hearsay knowledge” of any cases against him, given the circumstances of his departure from Bangladesh. Whether or not there was a case against him or paperwork that he had seen for the arrest warrant is peripheral to his protection visa claim. The applicant’s claim was that knowledge of the arrest warrant issued for him after he had been assaulted (at the party office) caused him to leave Bangladesh.
This constituted an unreasonable adverse credibility finding by the Tribunal and a failure to consider the applicant’s claim, specifically the alleged 2015 assault by the Awami League.
The Tribunal raised its concerns as to the credibility of the applicant’s evidentiary account and it is submitted that inconsistency or vagueness is not necessarily indicative of dishonesty or untruthfulness. Whilst a finding of vagueness or inconsistency may lead to a finding that particular evidence is unreliable or that the evidence as a whole requires scrutiny, it does not ultimately follow that a witness is an “outright liar”.
The Tribunal’s conclusion that the applicant was not a witness of truth due to its concerns about the applicant’s evidence [48], is a contradiction. Critical evidence should not be disregarded on the basis that there are concerns about the vagueness of the evidence, and consequently, the applicant is a liar due to those concerns being held. On this flawed finding, the Tribunal erred by rejecting claims that the applicant was attacked in August 2014 and March 2015 without giving consideration to these claims. Although at [52] of the decision record, the Tribunal stated that it did not believe the claims “ for reasons given above”, these reasons did not involve a consideration of the claims.
Therefore, jurisdictional error occurred on two levels, by a failure to consider the claims and the failure by the Tribunal to consider the claims because it had concerns about the applicant’s evidence on other matters.
THE FIRST RESPONDENT’S SUBMISSIONS
As to ground one, the Minister argues that the Tribunal did expressly acknowledge the applicant’s claims in relation to abduction and torture in August 2014 and the assault and subsequent admission to hospital in March 2015 at [12-[14] of the decision record and made its findings at [48]-[54],[49],[50] and [51]. The Tribunal did not ignore, overlook or misunderstand the applicant’s claims in this regard (Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (M1/2021) at [26]-[27]).
The Tribunal did not disbelieve the applicant generally or reject all his claims. The Tribunal accepted that the applicant undertook political activities with the BNP before 2009 at [52] of the decision record. Further, at [53], the Tribunal did not err in considering corroborative evidence and ultimately finding that the evidence did not outweigh its adverse credibility findings: (Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 at [35]-[36]).
The Tribunal gave cogent and rational reasons for rejecting the applicant’s claims of harm and in its reasons gave detail for its concerns with the applicant’s credibility in relation to all the claims at [17-20], [38]-[41] and [42-[47].
The Tribunal record cannot be accurately read to reflect that it “obsessed”, as argued by the applicant, with whether the applicant had seen the paperwork for the arrest warrant. This merely comprised one of the number of concerns the Tribunal had with the applicant’s narrative which were raised during the hearing and by invitation for the applicant to comment on any adverse information under s 424A(1) of the Act.
Ground two asserts that the Tribunal’s conclusions were legally unreasonable. The Minister notes that the test for unreasonableness is “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (MIBP v SZVFW) at [11] (Kiefel CJ) and the question in assessing the decision on review is “whether a decision-maker could reasonably come to the conclusion” reached: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [21] (Allsop CJ))
The Tribunal’s concerns with the applicant’s evidence as a whole supported its conclusion that he was not a witness of truth in relation to the 2014 and March 2015 incidents that were a part of his protection claims.
The Minister submits that no error arises in the credibility concerns held by the Tribunal in relation to four aspects of the applicant’s evidence. Firstly, the Tribunal’s findings in relation to why the applicant closed his business and the inconsistencies present in his evidence were directly relevant to his claims about being attacked or harassed by the Awami League. The issue of the manner in which the applicant left Bangladesh and the alleged arrest warrant issued against him speaks directly to the applicant’s claim that he had been in hiding.
Secondly, the inconsistencies identified are significant in that the applicant’s version of events was wholly different.
Thirdly, the applicant was provided an opportunity both at the hearing and under s 424A of the Act to explain the inconsistencies. After considering the applicant’s explanations the Tribunal was not wholly convinced that they were acceptable explanations.
The Tribunal established its reasoning for why it considered the inconsistencies in the evidence to be material to the assessment and credibility of the applicant’s claims. There was nothing illogical or irrational in those reasons, and the applicant has not identified any significant information the Tribunal is said to have overlooked: BUZ20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 349 at [79].
CONSIDERATION
It is common ground between the parties that the incidents claimed by the applicant as occurring in 2014 and 2015 are central to the applicant’s protection claims.
Ground One
What is now Ground one is a claim that the Tribunal failed to give active intellectual consideration (or engagement) to the 2014 and 2015 claims by the applicant.
The proper approach to such a claim was summarised by Reeves, O'Callaghan and Thawley JJ in Singh v Minister for Home Affairs [2019] FCAFC 3 at [37] (citations omitted):
In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
1. First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
2. Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
Ÿthe reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
Ÿit is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
Ÿa conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
First, the Court is satisfied that the Tribunal did not ignore, overlook or misunderstand the applicant’s claims in relation to incidents in 2014 and 2015. The claims are clearly set out in the decision record at [12] – [14].
The applicant’s complaint essentially revolves around the basis upon which the Tribunal came to the conclusion that the applicant’s central claims were false. In oral submissions, Counsel for the applicant submitted that the Tribunal impermissibly used other inconsistencies in the applicant’s evidence to find that the central claims were false. The Court does not accept this submission.
The task of fact finding is a central tenet of the task of the Tribunal. The manner and path that the Tribunal follows to come to its factual findings is a matter for the Tribunal, not a Court conducting judicial review. There may be more than one path that a Tribunal can properly follow to arrive at its factual conclusions. It is not for a Court to substitute its decision for that of the decision maker: M1/2021 at [27].
Based on its overall credibility concerns, the Tribunal disbelieved the applicant as to his central claims. These concerns are set out at [48] – [54]. In coming to the conclusion it did about the applicant’s central claims, the Tribunal did not reject all the applicant’s evidence. For example, it accepted that he may have been involved in political activities prior to 2009.
Reading the Tribunal decision record as a whole, the Court is satisfied that the Tribunal set out a cogent and rational basis for the rejection of the applicant’s claims of harm based upon the fact that the Tribunal concluded he was not credible. These inconsistencies included why he closed his business, the nature of the applicant’s business operations, the circumstances and timing of his departure from Bangladesh after having obtained a visa, its concerns about the applicant’s evidence that he believed the case had been filed against him when he had never seen paperwork for that case and the lack of evidence concerning his political activities.
The Court does not accept the assertion put forward by the applicant that the Tribunal was ‘obsessed’ in relation to the lack of any paperwork. A lack of supporting documentation was a relevant matter that the Tribunal could take into account when considering the overall credibility of the applicant’s claims. The Tribunal did consider the documentary evidence that was provided by the applicant in support of his claims, however, for the reasons it set out, it found that those documents did not outweigh the concerns that the Tribunal had as to the credibility of the applicant’s evidence. For example, the Tribunal noted that if the applicant feared for his life, he was granted a visa in September 2015, and yet did not leave Bangladesh until November 2015. The applicant’s explanation for the delay was set out in some detail, however, at [38], the Tribunal rejected this explanation. The Court is satisfied the Tribunal was entitled to do so based on the evidence that was before it and for the reasons it gave.
The Court is satisfied the Tribunal did not fail to give active intellectual consideration or engagement with the applicant’s claims. It simply rejected them on grounds that were cogent, logical, and available to it for the reasons it gave. Ground one has no merit.
Ground Two
Ground two is essentially a variation of ground one on the basis that the conclusions reached by the Tribunal were legally unreasonable.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (see Minister for Immigration arid Citizenship v Li (2013) 297 ALR 225 (Li) at [28] per French CJ), or where a decision has been made that lacks an "evident and intelligible justification" (see Li at [76]; see also Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234]). The test for unreasonableness is "stringent" and only arises in rare cases (See MIBP v SZVFW at [11]). Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker (see Li at [30], [113]).
The applicant contends that the Tribunal focused on minutiae and then used those minor inconsistencies to find that the applicant was not a credible witness. The Court does not agree to that assertion.
The Tribunal had concerns about the explanations given by the applicant as to the reasons why he closed his business around February or March 2015, as compared to the later evidence he gave of closing the business in April 2015. Secondly, in his visa application, the applicant stated he was a chairman in the garment business and was still employed in that role in September 2015. This was in direct contradiction to his account of the Tribunal, in which he stated that he operated a food product export business until April 2015.
Third, there are inconsistencies in the reason for his delay in departing Bangladesh. Fourth, there was the issue of the false case against him.
The Court accepts the respondent’s submissions that these inconsistencies were not in relation to objectively minor matters. These were significant matters which one would reasonably expect that the applicant would be able to give consistent evidence on, if he were telling the truth. Further, the applicant was given the opportunity at the hearing and/or under s 424A of the Act to explain the inconsistencies in his evidence either at the hearing or in response to the s 424A letter.
Noting the stringent requirements for a finding of legal unreasonableness, the Court is not satisfied that the conclusions of the Tribunal reach that stringent standard. To a large extent, this ground of judicial review can be described as a vehement disagreement with the factual conclusions arrived at by the Tribunal. The Court is satisfied that the Tribunal’s decision was logical, rational, and open to it based on the evidence before it. Ground two has no merit.
In these circumstances, the application is dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 16 June 2025
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