BRV19 v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 968

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BRV19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 968

File number(s): SYG 999 of 2019
Judgment of: JUDGE SKAROS
Date of judgment: 23 June 2025
Catchwords: MIGRATION – Judicial Review – Administrative Appeals Tribunal – Protection visa – Bangladesh –whether the Tribunal failed to engage in genuine and realistic consideration of the applicant’s claims and/or failed to consider an integer of his claims – whether the Tribunal failed to comply with s 424A or s 424AA to put adverse information to the applicant – whether the Tribunal’s finding that the applicant had not been subject to false cases in Bangladesh lacked rational and logical support and was formed on mere assumptions and/or was irrational, illogical or unreasonable – whether the Tribunal’s breach of s 418 constitutes jurisdictional error – application dismissed
Legislation:

Migration Act 1958 (Cth) s 5AAA, 36, 65, 418(3), 424A, 424AA, 499.

Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (NSW)

Cases cited:

BBS15 v Minister for Immigration and Border Protection (2017) 248 FCR 159

GFV18 v Minister for Home Affairs [2019] FCA 1817

LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152

Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 [1999] HCA 21

NAHI v Minister for Immigration & Multicultural Indigenous Affairs [2004] FCAFC 10

Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

S487/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1309

SZBYR v Minister for Immigration and Citizenship [2007] 147 CLR 297

SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415

SZOIN v Minister for Immigration & Citizenship [2011] FCAFC 38

SZUHJ v Minister for Immigration & Border Protection [2018] FCA 331

VAF v Minister for Immigration and Multicultural Affairs (2004) 236 FCR 549

WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Division: Division 2 General Federal Law
Number of paragraphs: 101
Date of hearing: 10 June 2025
Place: Parramatta
Solicitor for the Applicant: Self-represented Litigant
Solicitor for the Respondents: Ms Wilford, Sparke Helmore Lawyers

ORDERS

SYG 999 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BRV19

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE SKAROS

DATE OF ORDER:

23 JUNE 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent is amended to Minister for Immigration and Citizenship.

2.The application filed on 24 April 2019 is dismissed.

3.The Applicant pay the First Respondent’s costs fixed in the amount of $5,000.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set…

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BRV19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 968
Case
[2025] FedCFamC2G 968
Decision Date

CaseChat Overview and Summary

In BRV19 v Minister for Immigration and Multicultural Affairs, the applicant, a citizen of Bangladesh, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) affirming the Minister’s refusal to grant him a protection visa under the Migration Act 1958 (Cth). The applicant claimed that he feared harm due to his involvement with the Bangladesh National Party (BNP) and alleged he had been subjected to false cases and harassment by the ruling Awami League party. The Tribunal's decision, dated 1 April 2019, upheld the Minister's refusal to grant the applicant a protection visa.

The legal issues before the court were whether the Tribunal failed to genuinely consider the applicant's claims, whether it failed to comply with statutory requirements in communicating adverse information to the applicant, and whether the Tribunal's findings were irrational or lacked rational support. Specifically, the applicant argued that the Tribunal did not adequately consider his claims of being targeted and harassed by the ruling party and that it wrongly discounted documents supporting his claims due to an alleged tendency for document fraud in Bangladesh. Additionally, the applicant contended that the Tribunal did not properly advise him about the relevance of certain information and the consequences of that information being relied upon.

The court found that the Tribunal's decision was not affected by a jurisdictional error. It determined that the Tribunal had considered the applicant's claims and the material provided, including the documentary evidence and the country information. The court held that the Tribunal's findings were rationally connected to the material before it and that the concerns about document fraud in Bangladesh did not undermine the legitimacy of the applicant's claims. Furthermore, the court found that any failure to comply with statutory requirements did not amount to a jurisdictional error and did not deprive the applicant of a fair opportunity to respond to the information. Consequently, the application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

By application filed on 24 April 2019 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 1 April 2019. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicant a protection visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. BACKGROUND The applicant is a male citizen of Bangladesh. He last arrived in Australia in February 2015 as the holder of a visitor visa. On 24 March 2015, the applicant applied for the visa. In summary, the applicant claimed to fear harm due to his involvement with the Bangladesh National Party (BNP). On 4 September 2015 the applicant attended an interview with the delegate. On 7 September 2015 the delegate refused to grant the applicant the visa. On 28 September 2015 the applicant applied to the Tribunal for review of the delegate’s decision. On 9 March 2018 the Tribunal invited the applicant to appear before it at a hearing on 9 May 2018. The applicant appeared on that date and was assisted by an interpreter in the Bengali and English languages. On 1 April 2019 the Tribunal affirmed the decision under review. THE TRIBUNAL’S DECISION After setting out the applicant’s personal background, travel history and background to the review, the Tribunal set out details of the documents provided by the applicant to the Department in support of his protection visa claims. They included:(a)A letter from the President of the Student Party in the Tongibari Upazila branch which stated that the applicant has been a member of the National Student Party, that he was a struggling student leader in the street and had been treated badly by false cases made against him by the dominant party of Bangladesh; and(b)A letter from an unnamed ‘convenor’ of the Central Committee in Dhaka of the BNP which stated that the applicant is an experienced political supporter and a publicity secretary of the BNP. These activities have led people to try to kill the applicant and he is a ‘totally helpless young man and that he has no safety and security in Bangladesh and is in need of political asylum for safety and his life.’ The Tribunal then summarised the applicant’s claims for protection as set out in the statement provided with his visa application. It noted the following: (a)The applicant stated he was inspired by the ideology of the BNP after completing secondary school and became a chairman of the ‘local union party;’ (b)He was targeted by Awami League members and their allies, had been threatened and harassed and has had to leave his village. People were sent to find him, so he had to escape abroad;(c)When he returned to Bangladesh and married his wife he was ‘punished mentally’ and soon thereafter escaped abroad; and(d)The BNP protected democracy, but the ruling government had been ‘mentally and physically torturing the leaders of opposition parties at all levels by filing false cases against them.’ Law enforcement have been complicit, and he had been accused of killing people and committing arson.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 1 April 2019 the Tribunal affirmed the decision under review. THE TRIBUNAL’S DECISION After setting out the applicant’s personal background, travel history and background to the review, the Tribunal set out details of the documents provided by the applicant to the Department in support of his protection visa claims. They included:(a)A letter from the President of the Student Party in the Tongibari Upazila branch which stated that the applicant has been a member of the National Student Party, that he was a struggling student leader in the street and had been treated badly by false cases made against him by the dominant party of Bangladesh; and(b)A letter from an unnamed ‘convenor’ of the Central Committee in Dhaka of the BNP which stated that the applicant is an experienced political supporter and a publicity secretary of the BNP. These activities have led people to try to kill the applicant and he is a ‘totally helpless young man and that he has no safety and security in Bangladesh and is in need of political asylum for safety and his life.’ The Tribunal then summarised the applicant’s claims for protection as set out in the statement provided with his visa application. It noted the following: (a)The applicant stated he was inspired by the ideology of the BNP after completing secondary school and became a chairman of the ‘local union party;’ (b)He was targeted by Awami League members and their allies, had been threatened and harassed and has had to leave his village. People were sent to find him, so he had to escape abroad;(c)When he returned to Bangladesh and married his wife he was ‘punished mentally’ and soon thereafter escaped abroad; and(d)The BNP protected democracy, but the ruling government had been ‘mentally and physically torturing the leaders of opposition parties at all levels by filing false cases against them.’ Law enforcement have been complicit, and he had been accused of killing people and committing arson. The dispositive issue in the review was whether the applicant was a person in respect of whom Australia had protection obligations under s 36 of the Act. The Tribunal identified the criteria for a protection visa; that the applicant must either satisfy the ‘refugee’ criterion or meet the ‘complementary protection’ grounds for protection. The relevant definition of ‘refugee’ and the provisions relevant to the complementary protection grounds under the Act were also set out. The Tribunal identified that it must have regard to Ministerial Direction No. 56 made under s 499 of the Act, and that it must take into account the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any relevant country information assessments. The Tribunal then outlined all the material it had before it which included:(a)A letter dated 25 March 2015 from a lawyer stating that the applicant was involved in a political case which was pending in the court and that a warrant had been issued for the applicant’s arrest and searches were being undertaken for him. It stated that the applicant should seek asylum abroad;(b)A document titled ‘Warrant of Arrest’ dated 3 June 2014 from the ‘Chief Metropolitan Magistrates’ Court of Dhaka’ ordering the arrest of the applicant to be produced in court;(c)A document titled ‘Order Sheet’ dated 3 June 2014 from the ‘Chief Metropolitan Magistrates’ Court of Dhaka’ stating that the case involved ‘torture, broken, made fire, rioting case and anti-state case and that all accused persons are absconding;’(d)A document titled ‘First Information Report’ dated 8 March 2014 from the ‘Duty Officer of the Paltan Police Station Dhaka’ stating that the applicant and others had rioted, looted and attacked police;(e)A document titled ‘Charge Sheet’ dated 6 May 2014 stating that the accused rioted, looted and took items from a shopkeeper on 8 March 2014;(f)An undated document on the letterhead of the BNP stating that the applicant was known as a BNP student leader, that he joined the BNP in 2004 and was instrumental in forming public opinion in favour of the party in 2008. The author does not provide a name but says he was selected as a BNP candidate. The letter also stated that the applicant and his family had been targeted by Awami League supporters due to their BNP involvement;(g)An undated document on the letterhead of the BNP stating that the applicant was known to the author, who was a Joint Secretary of the BNP in the applicant’s district. It stated that the applicant had been a member of the BNP since 2010, that he was elected as a general member of the National Youth Party of that district and that he had been hunted by the Awami League and implicated in false cases because of his BNP involvement; (h)A document titled ‘First Information Report – Control No 243’ submitted on 25 December 2018 listing the applicant as one of the accused persons who had been charged with plundering goods and possessing explosive substances with intent to kill;(i)A document addressed to the Officer-in-Charge of the Tongibari Police Station with the subject of ‘Complaint’. The complainant said that BNP members raised a slogan against the Awami League Government in front of a school where they were meeting, that the BNP members attacked the complainant and fellow Awami League workers with sticks, a pistol and explosives and that the applicant fired a pistol and threw a petrol bomb in the area;(j)A document titled ‘Order Sheet’ which provided that one of the applicant’s fellow accused had been arrested and brought before the Court and remanded in custody on 26 December 2018; and(k)A document titled ‘Warrant of Arrest’ dated 13 January 2019.

Ratio Decidendi

Legal Principle Established

I also explained to the applicant the grounds raised in his judicial review application and gave him the opportunity to make oral submissions in respect of each ground of review, as well as any other reason he was aggrieved by the Tribunal’s decision or the process by which the Tribunal arrived at its decision. CONSIDERATION The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that: The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32]. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.Grounds of Review The application for judicial review advanced the following grounds (without alteration):Ground 1The IAA failed to take relevant consideration or failed to engage in genuine and realistic consideration of the claims. Alternatively, the IAA failed to consider integer claims.Particulars The applicant noted in his statement that he was selected for the position of Union Chairman. Though, the Tribunal adverted it but did not make any factual finding on the position.Ground 2The Tribunal failed to comply with s424(A) or s 424 (AA) of the Act in respect of information that it considered would be the reason or part of the reason for affirming the decision under review.ParticularsSection 424 AA (1) (a) (i) provides that If an applicant is appearing before the Tribunal because of an invitation under section 425, the Tribunal must ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review.Section 424 AA (1) (a) (iii)) provides that the Tribunal must advise the applicant that he or she may seek additional time to comment on or respond to the information.During the Tribunal hearing the Tribunal raised concerns presumably under Section 424 AA (the Tribunal did not mention during the hearing that it is putting the concern under Section 424 AA) but failed to advise the following: (see hearing recording 2 hour 55 minutes - 2 hour 58 minutes, 2 hour 59 minutes - 2 hour 61 minutes A. It did not advise that why that information is relevant in the case.B. The Tribunal failed to advise that the applicant may seek additional time to comment on or respond to the information.Ground 3The Tribunal's findings regarding the claim of false charges (AAT between 51-56) lacks rational and logical support to the material before it. The Tribunal conclusion is without any evidence and it formed the view on mere assumptions and is irrational / illogical and unreasonable.ParticularsThe Tribunal noted in para 52 the following:The Tribunal put to the applicant that country information states that document fraud is common in Bangladesh and that fraudulent documentation is easily obtainable (Report of a Home Office, Fact Finding Mission to Bangladesh, September 2017) and raised this in the context of the concerns that the Tribunal had about the legitimacy of the documentation that had been handed to the Tribunal.The Tribunal mentioned the following report to support its conclusion and questions the Court documents submitted by the applicant, namely, Report of a Home Office, Fact Finding Mission to Bangladesh, September 2017. However, the report relevantly noted at 4.6.1 that according to one source that forged or fraudulent police or court documents are not easily obtainable, because of countersignature processes and the fact that all documents can be checked against a database. The Tribunal either misunderstood or misread the report and on the basis, it is wrongly concluded that it does not put any weight on the documentation provided by the applicant. (see the AAT decision para 51-56)Therefore, it is respectfully submitted that the decision of the Tribunal that it would not give lot of weight to the Comi documents due to the credible country information to support that a range of documents can easily be falsified in Bangladesh is unreasonable and without any evidence and lacks rational connection to material before the Tribunal. The Tribunal fell into jurisdictional error. [emphasis in original]Ground One