BQL19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 306
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BQL19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 306
File number(s): SYG 970 of 2019 Judgment of: JUDGE ZIPSER Date of judgment: 14 March 2025 Catchwords: MIGRATION –Judicial review – decision of Administrative Appeals Tribunal – protection (class XA) (subclass 866) visa – whether Tribunal’s findings unreasonable – invalid certificate – whether denial of procedural fairness – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 438, 476 Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 20 February 2025 Place: Parramatta Applicants: First applicant in person Solicitor for the Respondents: Ms S Edmondstone of Minter Ellison ORDERS
SYG 970 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BQL19
First Applicant
BQN19
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The first applicant pay the first respondent’s costs in the sum of $5,600.
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 ZIPSER
INTRODUCTION
On 18 April 2019, the applicants filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 29 March 2019. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants Protection (Class XA) (subclass 866) visas under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
The first applicant (Applicant), a citizen of Bangladesh, first arrived in Australia in 2007 on a Student (Class TU) (subclass 572) (student) visa as a dependent of her then husband (Ex Husband). The third applicant is a child of the Applicant and the Applicant’s current partner (Current Partner). The second applicant, another child of the Applicant and the Current Partner, was withdrawn as an applicant to the Court proceeding when the child became an Australian citizen.
On 23 November 2015, the applicants applied for protection visas.
On 29 June 2016, a delegate of the first respondent, after an interview with the Applicant on 26 April 2016, made a decision refusing to grant the applicants protection visas.
On 13 July 2016, the applicants applied to the Tribunal for review of the delegate's decision.
By letter dated 26 July 2018, the Tribunal invited the applicants to attend a hearing before the Tribunal on 19 September 2018.
On 19 September 2018, the Applicant attended a hearing before the Tribunal. The applicant was accompanied by her representative.
On 6 February 2019, the Tribunal sent a letter to the applicants inviting them to comment on potentially adverse information contained in some visa applications lodged by the Ex Husband.
On 19 February 2019, the Applicant provided a statement in response to the letter dated 6 February 2019.
On 21 March 2019, the Applicant provided a further statement in support of her application before the Tribunal.
On 29 March 2019, the Tribunal made a decision affirming the delegate’s decision to refuse to grant the applicants protection visas.
TRIBUNAL’S DECISION
A principal claim by the Applicant was that the Ex Husband abused her physically and mentally from the time of their marriage in 2007 until the time she left the Ex Husband in 2011. The Applicant claimed that she feared being harmed by the Ex Husband or his family if she returns to Bangladesh. A second claim by the Applicant was that, although she was now in a relationship with the Current Partner, their two children were born out of wedlock and she would be targeted in Bangladesh as a morally corrupt woman.
In relation to the claim concerning the Ex Husband, the Tribunal found that the Ex Husband had not threatened, abused or mistreated the Applicant. The Tribunal was not satisfied the Applicant or her children faced a real chance of harm because of the Ex Husband.
In relation to the claim concerning the Applicant being perceived as a morally corrupt woman, the Tribunal found that there was no real chance that the Applicant or her children would be harmed in Bangladesh because of her relationship with the Current Partner or because the children were born out of wedlock.
The Tribunal concluded that it was not satisfied that any of the applicants were persons in respect of whom Australia had protection obligations.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to 20 February 2025
On 18 April 2019, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision (Application). The Application contained three grounds of review (reproduced as written):
Ground 1
The Tribunal fell into jurisdictional error from legal unreasonableness in its findings at paragraph [33] and Paragraph (42) of its reasons.
Particulars
A. In its decision in para 33, the Tribunal noted:
The first named applicant has stated that this is not true and that her ex-husband may have wrongfully provided her address as his, as a means of tormenting her. The Tribunal can see no sense in the first named applicant's response. There is no perceivable advantage to her exhusband, or clear path to disadvantage the first named applicant, in providing her address as his if he was not actually living at that address.
The Tribunal failed to look from the primary applicant's persecutor which is her ex-husband's point of view that providing his address that he lives in the same address should have been considered as a harassment by the applicant's ex-husband. The Tribunal failed to consider from the perspective of her persecutor because by providing her address as his address, he as a gambler could cause for her from his debtors. Therefore, the Tribunal's view is unreasonable.
B. In Para 42, the Tribunal noted:
If the applicants return to Bangladesh they are now a family unit with Mr Ahmed the father of their two children and the long-standing de-facto partner of the first named applicant. The first named applicant will therefore not be a single woman or a woman alone in Bangladesh. In view of her and Mr Ahmed's intention to marry once her divorce is finalised she would either be returning to Bangladesh as a married woman or as someone who will soon be married.
The Tribunal decision is without any evidence and it was based on mere assumption. It should be noted that under the Bangladeshi law, De facto relationship is not recognized as a relationship and the Tribunal wrongly applied the legal principles relevant under the family law of Australia and not under the family law of Bangladesh. Since De Facto is not a partner relationship under the Bangladeshi law, the Tribunal's conclusion that if the applicants return to Bangladesh they would be considered as longstanding de-facto partner relationship is not supported by any evidence under the Bangladeshi law because De facto is not a recognized partner relationship under the Bangladeshi law.
Further, the Tribunal failed to consider what would happen to the applicants now or in a foreseeable future and the tribunal has no evidence to confirm that when the divorce would be finalized in Australia. Therefore, its conclusion that the applicant would marry after getting the divorce is not supported by any evidence and if there is no evidence to confirm that it would happen in a foreseeable future. Accordingly, it is submitted that the Tribunal reasons are not supported by any evidence and it is unreasonable or illogical.
Ground 2
The Tribunal failed to consider integer claims or failed to give proper, genuine and realistic consideration to the Applicant's claim.
Particulars
A. The primary applicant noted that since the Birth Certificate mentioned Mr Ahmed as father but there is no married certificate and therefore, it would escalate their fear of significant harm because on that basis the children would be soon considered as children born out of wedlock in Bangladesh. The primary applicant also mentioned that even if they marry now, the children would be still considered as children born out of wedlock because the wedding date would be postdated to their date of birth. The Tribunal overlooked the applicants' evidence and decided that the children would not face a real chance of persecution because the Tribunal formed the view that they would not be considered as children born out of wedlock. It is respectfully submitted that the Tribunal failed to appreciate the applicant's evidence and failed to engage in active intellectual process.
B.The primary applicant, through her representative submitted that she fears harm from Islamic extremists or fundamentalists (see Applicant's representative submission dated 18 April 2016 para 42)
C.The primary applicant, through her representative submitted (see submission dated 18 April 2016 at para 96) that she would face harm due to her persecutors' perception that she engaged in anti-Islamic and anti-Bengali activities. The Tribunal overlooked the above claim.
D.The primary applicant, through her representative submitted (see submission dated 18 April 2016 at para 96) that she would face harm due to her status as a women leading a separate live in a western country. The Tribunal failed to appreciate and consider the above claim.
Ground 3
The Tribunal deprived the Applicant of procedural fairness in failing to disclose the existence of a section 438 certificate, and failed to afford the applicant an opportunity to make submissions on the validity of the Certificate and how its discretions under paragraphs 438(3)(a) and (b) were to be exercised.
Particulars
The Tribunal advised the existence of Section 437 Certificate but failed to advice of the existence of Section 438 Certificate which was issued on 29 June 2016. The applicants have no idea what is in the certificate and whether the Certificate is a valid certificate or invalid certificate.
Following a period of inactivity, on 23 August 2024 a registrar made procedural orders, including that, upon a hearing date being fixed, the applicants file and serve a written submission 14 days before the hearing.
On 12 December 2024 the parties were notified that the matter was listed for hearing on 20 February 2025.
The applicants did not file a written submission prior to the hearing. On 6 February 2025 the first respondent filed a written submission.
Hearing on 20 February 2025
At the hearing on 20 February 2025, the Applicant appeared before the Court unrepresented, assisted by a Bengali interpreter. Sophie Edmondstone from Minter Ellison appeared for the first respondent.
The Applicant brought to the hearing a copy of the Court Book (CB) filed by the first respondent on 11 July 2019 which contained the Tribunal’s decision dated 29 March 2019 and documents which were before the Tribunal.
At the commencement of the hearing, I directed the Applicant’s attention to the Tribunal’s decision in the Court Book. I explained to the Applicant that the role of the Court was limited to considering whether or not there was a jurisdictional error, which I described as a serious mistake or error, in the Tribunal’s decision. I explained the main categories of jurisdictional error. I explained to the Applicant that, if she wants to win the Court proceeding, she must persuade the Court there is a jurisdictional error in the Tribunal’s decision. I then asked the Applicant if she wanted a 15 minute break to consider oral submissions she wanted to make to the Court. The Applicant took up this offer.
After the 15 minute break, I invited the Applicant to make oral submissions. As explained below, an item of evidence before the Tribunal which was problematic for the Applicant was information in a visa application lodged by the Ex Husband in 2013 in which the Ex Husband stated that he lived at 68 Bay Street Croydon. The Applicant claimed in her protection visa application that for a period of time, including in 2013, she lived at 68 Bay Street Croydon. Yet the Applicant claimed in her protection visa application that she left the Ex Husband in 2011 because the Ex Husband physically and mentally abused her. If the address details in the Ex Husband’s visa application were true, this undermined the Applicant’s claims. During the Court hearing on 20 February 2025, the Applicant stated that the Ex Husband did not live at 68 Bay Street Croydon in 2013 or in any period the Applicant lived at 68 Bay Street Croydon.
The Applicant was provided with a copy of the Application. I invited the Applicant to make oral submissions in relation to the grounds in the Application. The Applicant had no oral submissions to make.
CONSIDERATION
Ground 1
In November 2015, the applicants lodged their protection visa application. The Applicant stated in the protection visa application, among other matters:
(a)Upon her arrival in Australia with the Ex Husband in 2007, they lived at an address in Ashfield.
(b)After the Applicant and Ex Husband arrived in Australia, the Ex Husband commenced to abuse the Applicant.
(c)In 2011, the Applicant commenced a relationship with the Current Partner.
(d)Since February 2013, the Applicant resided at 68 Bay Street Croydon.
In about January 2019, the Tribunal obtained copies of several onshore visa applications lodged by the Ex Husband. In one of these visa applications, the Ex Husband stated that his residential address was 68 Bay Street Croydon. Accompanying the visa application were letters from the Ex Husband’s employer to the Ex Husband dated 27 June 2013 and 2 September 2013 which stated the Ex Husband’s address to be 68 Bay Street Croydon.
The Tribunal at [33] discussed the significant tension between the Applicant’s claim that her relationship with the Ex Husband ended in 2011 after he abused her for many years, and the fact that they appeared to both live at 68 Bay Street Croydon in 2013. The Tribunal stated:
She stated that her ex-husband became abusive to her in Australia and he eventually moved out of their home in late 2011. She has had no contact with him since then, apart from an occasion in 2012 when he asked her for money, and a phone call last year when she asked him for his address to send divorce papers to. However, information from the department’s records indicates that the first name applicant’s ex-husband continued to live at the same residence as the first named applicant until at least November 2015. The first named applicant has stated that this is not true and that her ex-husband may have wrongfully provided her address as his, as a means of tormenting her. The Tribunal can see no sense in the first named applicant’s response. There is no perceivable advantage to her ex-husband, or clear path to disadvantage the first named applicant, in providing her address as his if he was not actually living at that address. To falsify his own address entailed greater risk of causing problems for him, than for the first named applicant. The Tribunal does not accept the response from the first named applicant is a truthful one.
The applicants, in particular A to ground 1, contend there is a jurisdictional error in this paragraph. It is stated in particular A that “the Tribunal failed to look from the primary applicant’s persecutor which is her ex-husband’s point of view that providing his address that he live in the same address should have been considered as a harassment by the applicant’s ex husband”. The meaning of this contention is unclear. The contention appears to be a repetition of the Applicant’s contention to the Tribunal, recorded by the Tribunal at [33], that “her ex-husband may have wrongfully provided her address as his, as a means of tormenting her”. That the Tribunal did not accept the Applicant’s contention is not an error, let alone a jurisdictional error. Further, the Tribunal at [33] provided reasons for not accepting the Applicant’s contention. The reasons provide an intelligible basis for the Tribunal to not accept the Applicant’s contention.
The Applicant claimed, and the Tribunal accepted, that the Applicant has been in a partner relationship with the Current Partner for several years and he is the father of her two children. The Tribunal also recorded at [37] the Applicant’s evidence that “once her divorce [from the Ex Husband] is finalised, she and [the Current Partner] will marry”. Despite this, the Applicant claimed that, if required to return to Bangladesh, she would face a real chance of harm as a single woman. In response to this claim, the Tribunal stated at [42]:
If the applicants return to Bangladesh they are now a family unit with Mr Ahmed the father of their two children and the long-standing de-facto partner of the first named applicant. The first named applicant will therefore not be a single woman or a woman alone in Bangladesh. In view of her and Mr Ahmed’s intention to marry once her divorce is finalised she would either be returning to Bangladesh as a married woman or as someone who will soon be married.
The applicants, in particular B to ground 1, contend there is a jurisdictional error in this paragraph. It is contended in particular B that “the Tribunal’s conclusion that if the applicants return to Bangladesh they would be considered as long-standing de facto partner relationship is not supported by any evidence”. I disagree. I consider that it was open to the Tribunal to find that, in view of the intention of the Applicant and the Current Partner to marry once her divorce is finalised, “she would either be returning to Bangladesh as a married woman or as someone who will soon be married”. This finding is supported by the Applicant’s evidence to the Tribunal, recorded at [37], that “once her divorce [from the Ex Husband] is finalised, she and [the Current Partner] will marry”. Further, the complaint in particular B that de facto relationships are not recognised in Bangladeshi law is misplaced, since the Applicant stated that she will marry the Current Partner. The applicants, in particular B, also contend that the Tribunal’s conclusion that the Applicant will marry after divorcing the Ex Husband “is not supported by any evidence”. I disagree. The Tribunal at [37] recorded the Applicant’s evidence that “once her divorce [from the Ex Husband] is finalised, she and [the Current Partner] will marry”.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
The Applicant claimed that she and her children faced a real chance of harm because the children were born out of wedlock. The Tribunal addressed this claim at [41]-[47]. The Tribunal found at [47]:
Given Mr Ahmed is the partner of the first named applicant and the father of the other two applicants, with documentation to support the legitimacy of the children’s birth and parentage, the Tribunal is not satisfied that the children will be perceived as being born out of wedlock. Even if it is discovered that the children were born before the marriage of their parents, the Tribunal considers that the chance of them being harmed is remote. As an established family unit that fits within the norms of cultural expectations there is very little motivation for anyone to take action against the family or harm them in any way. The Tribunal is therefore not satisfied there is a real chance of harm to the second named applicant and the third named applicant in Bangladesh, because the children were born out of wedlock.
Particular A to ground 2 seeks to establish jurisdictional error in this finding. It is contended that the Tribunal “overlooked the applicant’s evidence” relating to the children being born out of wedlock and “failed to appreciate the applicant’s evidence and failed to engage [in an] active intellectual process”. I disagree. It is clear from the Tribunal’s reasons for decision at [40]-[47] that the Tribunal considered the applicant’s evidence concerning the children, including relating to the children being born out of wedlock. That the Tribunal did not accept the Applicant’s claims does not establish an error, let alone a jurisdictional error, in the Tribunal’s decision.
Particular C to ground 2 asserts that the Applicant claimed that “she would face harm due to her persecutor’s perception that she engaged in anti-Islamic and anti-Bengali activities”, and the Tribunal overlooked this claim. On 18 April 2016, the applicants’ representative provided a 35-page submission to the Department. It is stated on page 1 of the submission (CB 128) that the Applicant was a member of one or more of four particular social groups. It is stated on page 35 (CB 162) that, associated with the Applicant’s membership of these particular social groups:
The Persecutors consider that the primary applicant is a morally corrupted person who abandons traditional Bangladeshi social norms and engages in anti-Islamic and anti-Bengali values or activities by separating from her husband and leading a separate life in a Western country.
The Tribunal at [45] expressly stated that it was “not satisfied that there is a real chance of serious or significant harm to the [Applicant] as a member of the particular social groups outlined by the applicant’s Agent in his submission to the Department”. By this finding, the Tribunal expressly addressed the claim referred to in particular C. The Tribunal did not overlook the claim.
For the same reasons as in the above two paragraphs, the Tribunal did not overlook the claim referred to in particular D to ground 2.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3
Section 438 of the Act stated in 2019:
(1) This section applies to a document or information if:
(a)the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a)must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4)If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
On 29 June 2016, the Department issued a purported certificate under s 438(1) of the Act (Certificate). The Certificate covered the following documents:
(a)an undated internal Department email asking whether the Applicant is eligible for a BVE;
(b)an administrative document concerning an identification test for the Applicant dated 17 December 2015; and
(c)some searches from a Department database which recorded contact details for the Applicant and the Ex Husband and some overlaps in their contact details.
The Tribunal stated the following in its decision at [19(t)]:
The Tribunal put to the [Applicant] that there was a section 437 certificate on the Department’s file regarding identity tests and records of contact details which she could comment upon if she wished. She reported okay without further comment.
In this Court proceeding, the first respondent concedes the Certificate is invalid. The first respondent, in light of the concession, included in the Court Book the Certificate and documents covered by the Certificate: see CB 203-209. Hence, the applicants received a copy of the documents covered by the Certificate when the first respondent served a copy of the Court Book on the applicants in July 2019.
In ground 3 the applicants seek to establish a jurisdictional error associated with the Certificate and the manner in which the Tribunal dealt with the Certificate.
In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 (SZMTA) at [2]-[3] the plurality stated:
[2]The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.
[3]The Full Court was also correct to take the view that an incorrect notification results in jurisdictional error if, and only if, the incorrect notification is material, again in the sense that it operates to deprive the applicant of the possibility of a successful outcome.
The Tribunal’s reasons at [19(t)] refer to a “section 437 certificate”. Neither party tendered a transcript of the hearing before the Tribunal in September 2018. It is not clear whether the reference to a “section 437 certificate”, rather than a “section 438 certificate” is a typographical error. Regardless of whether or not the Tribunal misdescribed the document to the Applicant during the hearing as a “section 437 certificate”, any breach by the Tribunal concerning notification of the Certificate, including an “incorrect notification” as referred to in SZMTA at [3], only results in jurisdictional error if the error concerning notification is material in the sense that it operates to deprive the applicant of a realistic possibility of a successful outcome: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT) at [7] and [14]-[16]. An onus lies on the applicants to establish materiality: see LPDT at [14] and [16]. The applicants, despite having had a copy of the documents covered by the Certificate since July 2019, have not made an effort to establish materiality. Based on a brief review of the documents covered by the Certificate:
(a)The undated internal Department email asking whether the Applicant is eligible for a BV+E and the administrative document concerning an identification test for the Applicant dated 17 December 2015 appear to be immaterial and irrelevant to the Tribunal’s decision.
(b)The information in the searches from the Department database was material to the Tribunal’s decision, but disclosed to the applicants in a letter from the Department dated 2 May 2016 at CB 175-178, in the delegate’s statement of reasons for decision dated 29 June 2016 (see in particular CB 198), and in a letter from the Tribunal to the applicants dated 6 February 2019. It is not apparent that there is any information in the search documents not disclosed to the applicants which was material to the Tribunal’s decision.
Ground 3 does not identity a jurisdictional error in the Tribunal’s decision.
Matters raised by Applicant at hearing on 20 February 2025
The Applicant’s principal contention at the hearing on 20 February 2025 was that the Ex Husband did not live at 68 Bay Street Croydon in 2013 or in any period the Applicant lived at 68 Bay Street Croydon. The Applicant gave this evidence to the Tribunal. The Tribunal did not accept the evidence. That the Tribunal did not accept the Applicant’s evidence concerning this issue is not an error by the Tribunal, let alone a jurisdictional error.
COSTS
Ms Edmondstone sought costs in the sum of $5,600 which was below the first respondent’s solicitor/client costs. The Applicant stated that she did not have money and could not pay this amount. There is no reason why costs should not follow the event. The amount sought by the first respondent appears reasonable. I will make an order in this amount against the first applicant only, noting that the third applicant is a child.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 14 March 2025
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