BRV19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 968
•23 June 2025
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 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 SKAROS:
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.
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.
The Tribunal, after outlining the applicant’s claims and the material before it, went on to make findings. First, it accepted that he was a citizen of Bangladesh. It then stated that it had discussed with the applicant his claims and its concerns with them and that, where appropriate, it adopted the procedure in s 424AA to put adverse information to the applicant at the hearing.
Involvement with the BNP
The Tribunal then considered the applicant’s claims regarding his involvement with the BNP.
The Tribunal considered that the applicant’s evidence as to when he joined the BNP was inconsistent. His original written claims stated that he joined in 1998 whereas another letter stated he joined in 2004, while another stated he joined in 2010. The Tribunal was not satisfied with the applicant’s explanation of this at the hearing when it was put to him and said it was ‘vague and not very helpful’ and suggested that the applicant was ‘inventing his evidence and attempting to change it to address any concerns that the Tribunal raised with him about the inconsistencies between the dates he joined the party.’
The Tribunal also had concerns regarding the applicant’s evidence as to the BNP generally. He was unable to explain to the Tribunal the principles of the party in any meaningful way. This concern was exacerbated by the applicant’s evidence that he has been a member of the BNP since he was 18 and his claimed involvement with the party in Bangladesh and attending BNP events in Australia. Further, the applicant had stated that one of the BNP’s positions was to centralise government power whereas the BNP’s published principles are to the opposite effect. When this concern was raised with the applicant, he suggested that he did not know what the terms meant and then stated that he was giving his view, not the BNP’s view. The Tribunal found these positions to be fundamentally contradictory and demonstrated that the ‘applicant had a flexible approach to the truth.’ Accordingly, the Tribunal placed no weight on the documents submitted by the applicant in support of his claimed involvement with the BNP.
Past incidents of harm
The Tribunal then considered the applicant’s claims as to when he had experienced harm in the past.
The Tribunal outlined the applicant’s oral evidence that he had a cousin who was involved with the Awami League who had invited him to join. When he did not do so, Awami League supporters abducted, assaulted and beat him. The applicant’s account of when this event took place and his resulting travel to Malaysia differed. He told the Tribunal that he was able to escape.
After this incident, the applicant stated that he was implicated in a murder case and the BNP told him to flee. A member of the BNP told the applicant to attend a police station to make a harassment complaint, which he tried to do but he discovered that a complaint had already been made against him. As a result, the applicant went to Malaysia for a short period of time. The BNP told him to return to Bangladesh but instructed him not to stay in his own house.
The applicant, at the hearing, stated that apart from these incidents he had not experienced harm apart from an incident at a BNP procession where he managed to escape. The applicant did not mention any attack on his business which was an issue before the delegate.
When the Tribunal put to the applicant the inconsistencies as to when the abduction and assault occurred, the applicant stated he must have got the dates wrong and that he had ‘memory problems’ and that despite this issue, he was assaulted and had a scar to prove it.
The Tribunal considered that the inconsistency ‘raise[d] serious concerns about the applicant’s credibility as a witness of truth.’ It did not accept that he would be unable to remember the correct dates and considered there was no evidence to support any assertion that the applicant had any ‘memory problems.’ The Tribunal gave the applicant an opportunity to provide evidence of any medical condition (which the applicant indicated he was obtaining treatment for); however, no such documentation was received by the Tribunal.
The Tribunal found that the inconsistency with the dates was because the assault was invented by the applicant in order to claim protection and the change in the dates was an attempt to ‘fix up his narrative’ and that, had his evidence not changed, his earlier claims of when he travelled to Malaysia (which was allegedly due to the assault) would have been ‘fundamentally undermined’. The Tribunal found that this concern, coupled with the applicant’s lack of evidence on the assault on his business, demonstrated that the applicant was untruthful and prepared to invent claims and change his account to bolster his claims.
The applicant’s living arrangements in Bangladesh
The Tribunal then considered the applicant’s evidence of where he resided in Bangladesh and what it considered to be issues in his account in this regard.
The Tribunal outlined that the applicant had given oral evidence that, when he returned from Malaysia, he stayed with his in-laws at their property, which was five or six hours from his house, for a period of three to five months. This differed from the written information in the application which indicated that he lived in his home district during this period. The applicant, when confronted with this inconsistency, explained that his in-laws lived in the same district, so he only put down one address.
The Tribunal did not accept that his in-laws who lived five or six hours away would be in the same district and did not accept this was a reason as to why the applicant only listed one address on the written application form. The Tribunal did not accept that the applicant had resided anywhere other than his home address and found that the applicant invented the claim that he moved five or six hours away to bolster his claim that he would be harmed when he returned to Bangladesh from Malaysia.
Documentation
The Tribunal then considered the applicant’s claim that, in December 2017, his cousin Kabir had told him that a warrant had been issued for his arrest. The applicant claimed that his cousin found this out from a police officer he had contact with. The applicant’s cousin had also obtained a copy of the warrant from a lawyer and arranged for the document to be translated into English. The Tribunal put to the applicant that country information before it suggested document fraud was prevalent in Bangladesh and fraudulent documents were easily obtainable. The Tribunal raised the concern with the applicant that his account of the events was not possible, given the warrant he provided was issued on 21 January 2018 but the conversation he had with his cousin about that warrant had occurred in December 2017. In responding to this concern, the applicant said his father was sick ‘around the time the issue developed’ and he thought it was ‘around’ December 2017.
The Tribunal then recorded that after a 10-minute break, the Tribunal asked the applicant whether he had been the subject of any other criminal proceedings. The applicant responded stating that the police had come to his home looking for him. He claimed that a friend obtained the documents from the court with assistance from a lawyer, and that he had provided those documents to his solicitor in Australia, who then submitted them to the Department. The Tribunal noted that there was no evidence before it that the documents, being the warrant and information about the 2014 criminal matter, had been given to the delegate. The Tribunal was also concerned that the applicant had not raised the issue about the 2014 criminal proceedings earlier in the hearing. When this was raised with the applicant, he said he did not mention the first warrant until prompted to do so by the Tribunal because ‘criminals are everywhere’ and he was hesitant to raise this information because he thought it would ‘go against him’.
The Tribunal did not accept that the documents provided by the applicant, which suggested he had criminal proceedings initiated against him in 2014 and 2018, were genuine. It also did not accept as genuine the letter from a person who identified himself as a lawyer. The Tribunal referred to country information indicating the prevalence of document fraud in Bangladesh, and the applicant’s failure to disclose to the Tribunal that he had criminal proceedings initiated in 2014 (as well as in 2017) without prompting from the Tribunal. The Tribunal also did not accept that the January 2018 warrant document was genuine, as it had been undermined by the applicant’s claim that his cousin knew about it from the police in December 2017.
The Tribunal had regard to the documents submitted by the applicant after the hearing. However, given its concerns about the applicant’s credibility and the country information before it as to the prevalence of document fraud in Bangladesh, it decided to place no weight on them.
Credibility and the Tribunal’s conclusion
The Tribunal was not satisfied that the applicant was a witness of truth, and the accumulation of the concerns outlined led it to find that the applicant had fabricated his claims to claim protection in Australia. The Tribunal stated as follows at [58]:
The concerns that the Tribunal has about the applicant’s claims, when considered individually and cumulatively, have lead the Tribunal to reject the applicant’s claims in their entirety. The Tribunal does not accept that the applicant is, or has ever been a member, supporter, or leader of the Bangladesh National Party in Bangladesh, that he has attended any Bangladesh National Party event in Australia, that he, or his purported business has ever been harmed because of his political opinion and support of that party in Bangladesh, that he left Bangladesh because he had previously been harmed or feared future harm if he returned to Bangladesh, or that, if he was returned to Bangladesh from Australia, he would face harm. The Tribunal is not satisfied that there are any criminal cases against the applicant in Bangladesh, either historically or presently, and the Tribunal is satisfied that the applicant’s documents have been fabricated in an attempt to lend credibility to his claims. When considering the applicants claims, singularly and cumulatively, the Tribunal is satisfied that his claims are fabricated. The Tribunal is satisfied that the applicant has invented his claims as a means of remaining in Australia.
Having found that the applicant was not a witness of truth and rejecting his claims, the Tribunal was not satisfied that he was a Refugee or met the complementary protection criterion. The Tribunal affirmed the decision under review.
APPLICATION TO THIS COURT
The originating application filed with the Court advanced three grounds of judicial review.
The Court Book filed by the Minister on 13 June 2019 was tendered into evidence at the hearing and marked Exhibit CB.
The Minister filed written submissions on 27 May 2025. The applicant did not file written submissions despite being given an opportunity to do so. The oral submissions of the Minister further developed their written submissions.
The affidavit of Annabelle Wilford filed 27 May 2025 (the Wilford Affidavit) was read into evidence without objection. That affidavit annexed a copy of the ‘Report of a Home Office, Fact Finding Mission to Bangladesh (Home Office Report), September 2017’, which the Tribunal referenced in its decision and is relevant to ground three of the judicial review application.
At the hearing on 11 June 2025, the applicant appeared in person with the assistance of an interpreter in the Bengali and English languages. The Minister was represented by Ms Wilford of Sparke Helmore Lawyers.
It became apparent during the hearing that the applicant had not drafted, and was not familiar with, his grounds of judicial review. The applicant stated that he did not draft the grounds and that a lawyer (from a law firm in the city) had drafted them for him. The application which contains the grounds does not bear the name of any lawyer or representative and was signed by the applicant personally. The applicant said he had not been in contact with the lawyer since the application was filed.
If a legal practitioner drafts a legal document, the Court expect the legal practitioner to put their name to the document and to complete the certification that the proceedings have a reasonable prospect of success. Failure to do so could amount to a breach of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (NSW).
If the Court is made aware of the identity of the legal practitioners who engaged in this conduct, this may, depending on the circumstances, warrant referral to the relevant regulatory authorities.
Being mindful that the applicant was unrepresented and did not understand the grounds of review contained in his application, I explained to him the circumstances in which the Court can grant relief and the role and powers of the Court in judicial review proceedings.
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 1
The 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 2
The 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.
Particulars
Section 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 3
The 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.
Particulars
The 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
Taking the reference to the IAA to mean the Tribunal, ground one contends that the Tribunal failed to engage in genuine and realistic consideration of his claims and/or failed to consider an integer of his claims. The particulars to this ground allege that the Tribunal had failed to make a factual finding regarding his claim to have been selected for the position of ‘Union Chairman’.
When asked at the hearing to make oral submissions in support of this ground, the applicant said that the Chairman dominates the whole country, that they created pressure because of their power and that they did not allow the applicant to stay in his local area. When I explained to the applicant that his ground relates to his claim that he was selected as a Union Chairman, the applicant said he did not want to stand for the position. He otherwise could not assist the Court further. The applicant also stated that the ‘condition of the country is bad.’
The Minister submitted that the Tribunal expressly considered the applicant’s claim of being a ‘chairman of the local union party’ and otherwise made express findings that it did not accept that the applicant was or had ever been involved with the BNP, including that he was never a ‘leader’ of the BNP. The Minister submitted that these findings encompass any claims that the applicant was a Union Chairman. Its reasons for doing so were based significantly on adverse credibility findings which were open to it for the reasons it gave, which show an active intellectual engagement with the evidence before it.
In reply to the applicant’s oral submissions, the Minister submitted that the Court could not engage in merits review of the applicant’s claims and that the current condition of Bangladesh or any claims the applicant now raises are irrelevant in judicial review proceedings. The Minister is correct. As I explained to the applicant, I am unable to consider his submissions regarding the current conditions in Bangladesh or his claims as to why he is unable to now return to his home area.
At [9], the Tribunal was aware of the applicant’s claim as it summarised it as follows:
…he wrote that he became inspired by the ideology of the Bangladesh National Party at the time that he graduated from secondary school in Bangladesh, and he became chairman of the local union party. He wrote that ‘no sooner had he been selected for the position of chairman, he was targeted by local Awami League members and their allies….
The Tribunal concluded at [58] that the applicant’s credit was so affected that it ‘reject[ed] the applicant’s claims in their entirety.’ For reasons it gave, the Tribunal found that the applicant had never ‘been a member, supporter, or leader’ of the BNP. I accept the Minister’s submission that the Tribunal’s rejection of the applicant’s claim to have been a leader of the BNP encompassed a rejection of his claim of being a Union Chairman.
The Full Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ stated:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
A fair reading of the Tribunal’s reasons demonstrate that the Tribunal made comprehensive findings as to the applicant’s evidence, claims and credibility and the issue of whether the applicant was a Union Chairman was both identified and subsumed in its broader finding that the applicant was never a leader of the BNP.
Ground one is not made out.
Ground Two
By ground two, the applicant contends that the Tribunal failed to comply with ss 424A or 424AA to put adverse information to the applicant. In the particulars to this ground, the applicant states that during certain periods of the hearing (and he identifies times in the recording) the Tribunal presumably engaged s 424AA but failed to comply with that provision because it did not advise him as to why the information was relevant and failed to advise the applicant that he may seek additional time to comment on or respond to the information.
Neither the recording nor the transcript is in the evidence before me.
When asked at the hearing to make oral submissions in support of this ground, the applicant made submissions that had no relevance whatsoever to the ground of review. The applicant stated that he could have brought other documents from Bangladesh to the Tribunal, that he did not lie, that the Tribunal did not consider all the facts in his application, that he cannot return to Bangladesh, that he cannot see his children and that all his evidence was truthful. The applicant was otherwise unable to assist the Court as to what information he says the Tribunal failed to put to him or why this ground of review was advanced.
As to the applicant’s oral submissions, the Minister stated that the claims made by the applicant were not made to the Tribunal and that each claim that the applicant made to the Tribunal was dealt with comprehensively by the Tribunal for the thorough reasons it gave. The Minister submitted that the applicant’s submissions were no more than mere disagreements with the Tribunal’s decision.
The applicant’s oral submissions invite the Court to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Disagreement with a decision, even emphatic disagreement does not of itself give rise to jurisdictional error and has no legal consequence: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 [1999] HCA 21 at [40]. It is not for this Court to determine whether the applicant was truthful in his evidence. Nor is it the Court’s role to determine if the applicant can return to Bangladesh. Those matters were entirely for the Tribunal to determine. As to the provision of more documents to the Tribunal, it was for the applicant to advance whatever evidence he wished in support of his claims. There is no evidence before the court which suggests that the applicant was prevented from providing further documents and I have not been able to identify any error in that regard.
As to the ground of review, the Minister submitted that the applicant has not identified what information the Tribunal failed to put to him according to ss 424A or 424AA and that the applicant has not put any transcript before the Court to make out his claim. It was submitted that, if the references to particular points of the Tribunal hearing record refer to the Tribunal discussing with the applicant inconsistencies in his evidence, this was not information which engaged ss 424A or 424A, noting that the applicant had provided a copy of the delegate’s decision record to the Tribunal, and therefore the Tribunal did not need to explain why the information was relevant to the case or advise the applicant that he may seek additional time to comment on or respond to the information. The Minister submitted that the Tribunal, in any event, did put the inconsistencies to the applicant and considered his responses to them, although it was not satisfied with them.
Sections 424A and 424AA provide a statutory mechanism to put adverse information to applicants. A failure to comply with procedural obligations in Division 4 Part 7 of the Act, including s 424A can establish jurisdictional error on the part of the Tribunal. The obligation under section 424A will not be engaged in every case. The statutory exceptions in s 424A(3) must be kept in mind. Further, the section does not require notice to be given of every matter the Tribunal thinks is relevant to the decision under review: SZBYR v Minister for Immigration and Citizenship [2007] 147 CLR 297 (SZYBR) at [15].
A disbelief of the applicant’s evidence or inconsistencies identified therein is not information for the purposes of s 424A: SZYBR. The High Court in SZYBR endorsed the view of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural Affairs (2004) 236 FCR 549 (VAF) at [24(iii)] that ‘information’:
does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
Whilst section 424A is obligatory and non-compliance will amount to an error, section 424AA is discretionary. If the Tribunal exercises its discretion under section 424AA lawfully, it relieves itself of obligations pursuant to s 424A: s 424A(2A). The Tribunal must always comply with s 424A but has a choice as to whether it will invoke s 424AA: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 (SZMCD) per Tracey and Foster JJ at [87]. As to what constitutes information for the purposes of s 424AA, it is the same as that which is covered by s 424A: SZMCD at [88] – [93]. Therefore, s 424A and 424AA are complementary, as the Full Court of the Federal Court explained in SZMCD at [104]:
In this way, as we have concluded, s 424AA and s 424A work in a complementary manner — s 424A containing the obligatory requirements (subject to the stated exceptions) with which the Tribunal is bound to comply and s 424AA making available to the Tribunal a means of not having to comply with those requirements provided that it elects to invoke s 424AA and it complies with the various conditions specified in that section.
At [33], when summarising the Tribunal hearing, the Tribunal identified that it ‘adopted, where appropriate, the procedure under s 424AA of the Act to put adverse information to the applicant.’ It is not otherwise clear to the Court what information the Tribunal put to the applicant pursuant to s 424AA or indeed whether it did so at all. I note that such general statements in Tribunal decisions are not particularly helpful if they do not identify what information enlivened the obligation pursuant to ss 424A or 424AA and how they were put to the applicant.
Nonetheless, it is entirely for the applicant to put evidence before the Court to make out his grounds of judicial review. He has not done so. I do not have the benefit of a recording or a Transcript of the Tribunal hearing. Therefore, without any evidence to the contrary, I am entitled to rely on the Tribunal’s statement that it complied, where appropriate, with s 424AA. As discussed above, this relieves the Tribunal of any obligations it has pursuant to s 424A. Rares J stated as follows in GFV18 v Minister for Home Affairs [2019] FCA 1817 at [9] – [10]:
[9] The Minister’s first defence of the primary judge’s decision relies upon the asserted correctness of his Honour’s conclusion about s 424A not being engaged, such that s 424AA was not engaged. The second defence is that even if that was not correct, the primary judge was nonetheless correct to hold that the appellant had not discharged the onus on him to establish the errors that he alleged, citing:
(1) SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 per Rares J at [38]:
Without a transcript, it is not possible to ascertain whether or not the tribunal precisely complied with the provisions of s 424AA of the Act. That enabled it to put to the appellant orally clear particulars of any information it considered would be the reason or part of the reason for affirming the decision under review and to explain to him why that was relevant for the purposes of the review, giving him the opportunity to comment. Certainly, a reading of the tribunal’s summary of the evidence suggests that something close to that process was followed. Given that the tribunal squarely raised with the appellant the substantial difference in explanations he had given to the delegate and to it for his delayed departure I am not satisfied that there was a failure to comply with ss 424AA or 424A.
(2) SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 per McKerracher J at [18]–[19]:
The information that the Tribunal is required to disclose does not include the Tribunal’s subjective appraisals, thought processes or determinations. It does not extend to gaps, defects, or lack of detail or specificity in evidence or to the conclusions the Tribunal reaches in terms of the weight attributed to these factors:VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 .
In the absence of a transcript of the Tribunal hearing there is no reason to doubt that the Tribunal complied with s 424AA as it stated.
[10] It is not necessary to consider the Minister’s first defence as to the primary judge’s secondary reason for not finding error on the part of the Tribunal by reason of the obligations under s 424AA not being engaged. That is because his Honour was plainly correct, as his primary reason for dismissing the judicial review application, not to be satisfied that there was any failure to comply with the requirements of s 424AA(1)(b) in the absence of evidence to show that was so. His Honour was correct not to draw any inference to that effect based only upon bare assertion. That is especially the case given the Tribunal’s express statement that the three items of information had been put to the appellant pursuant to s 424AA.
Further, I accept the Minister’s submission that if the applicant alleges that the information the Tribunal put to him (which did not comply with ss 424A or 424AA) were related to the inconsistencies in his evidence, that this is not ‘information’ for the purposes of ss 424A or 424AA.
The Minister, in his oral submissions, stated that [46] of the Tribunal’s decision was an example of how the Tribunal put adverse information as to the applicant’s credibility to him. It records that the applicant mentioned that he had ‘memory problems’ when inconsistent evidence was put to him, and that he was given an opportunity to put documentation before the Tribunal regarding this condition. It is not possible for me to identify whether this information was put to the applicant pursuant to s 424AA and for the reasons I have given, it did not need to even if it did so. Notwithstanding, I accept the Minister’s submission that this gives the Court confidence that the Tribunal did put adverse information, including as to credibility, to the applicant during the hearing and gave him an opportunity to respond – even if it did not need to do so.
Ground two is not made out.
Consideration of Ground Three
By ground three, the applicant contends that the Tribunal’s rejection that he had been subject to false cases in Bangladesh, lacked rational and logical support, was formed on mere assumptions, and/or was irrational, illogical and unreasonable. This is so, the applicant says, because the Tribunal incorrectly found at [52] that country information (specifically the Home Office Report) stated that document fraud was common in Bangladesh when the country information indicated the contrary.
I note, despite the applicant not identifying it, that the Tribunal at [55] and [56] relied on this country information as one of the reasons for finding that the applicant’s documentation submitted to it was not genuine or as to why it did not give them any weight.
When asked at the hearing before me to make oral submissions in support of this ground, the applicant again made submissions that bore no nexus to the ground of review. The applicant stated that he told the Tribunal that Bangladesh was experiencing unrest and was a hostile environment and that the Tribunal should make inquiries to verify this. The applicant also stated that the Tribunal told him that no national party existed in Bangladesh and in support of this submission the applicant pointed to [37] of the Tribunal’s decision. The applicant further stated that he submitted ‘a paper’ to the Tribunal and that it still refused his application. Finally, the applicant stated that if he was not a member of the BNP he could not have provided all the documents that he did.
It is entirely the responsibility of the applicant to specify all particulars of his claim and provide sufficient evidence to establish his claim for protection: s 5AAA of the Act. The Tribunal was not bound to accept the applicant’s claims uncritically nor was it precluded from considering inconsistencies in those claims. Flick J explained in SZUHJ v Minister for Immigration & Border Protection [2018] FCA 331 at [24]:
…To confine the Tribunal to only being permitted to make a finding consistent with the factual account being given by a claimant in the absence of rebutting evidence and not by reference to inconsistencies in that factual account would be inconsistent with the task entrusted to the Tribunal by the legislature to make findings of fact by reference to the evidence before it and would be inconsistent with authority: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; (2016) 70 AAR 413 . Although the difficulties of proof which may be encountered by a claimant seeking protection may readily be accepted, the Tribunal is not obliged to accept uncritically a factual account given by, or submissions advanced by, a claimant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451 to 452 per Beaumont J.
Further, the Tribunal is under no duty to accept the genuineness of documentation provided to it. If a Tribunal provides an evident and intelligible justification as to why it has not accepted that a document is genuine, then that finding (or the basis for it) is not otherwise affected by jurisdictional error.
As to the applicant’s submission that the Tribunal should have made inquiries to verify his claims, this is rejected. The Tribunal is under a duty to review and not a duty to inquire. Whilst a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, provide a sufficient link to the outcome to constitute a failure to review, I am not satisfied that is so in this case: Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at [25]. The Tribunal rejected the applicant’s claims for protection on credibility grounds. Any inquiries as to any false cases against the applicant or the genuineness of his documents were also not obvious or easily made.
The applicant’s claim that the Tribunal stated that the BNP did not exist is factually incorrect; the Tribunal made no such finding and indeed much of the Tribunal’s reasoning logically depended on the existence of the BNP. The applicant’s oral submissions otherwise express mere disagreement with the Tribunal’s decision and invite the Court to impermissibly engage in merits review of his claims for protection.
As to the ground of judicial review, the Minister submitted that it was open to the Tribunal to find, based on the Home Office Report, that there was information before it which indicated that fraudulent documentation could be easily obtained. It was open to it, for the reasons it gave, to form that conclusion from the country information. The Minister also submitted that the Tribunal did not reject the applicant’s documentary evidence solely because of the information in the Home Office Report, it also did so because of discrepancies in his own evidence, the manner in which the documents were obtained and its general (negative) view of the applicant’s credit.
It is well established that the selection of and weight given to country information report is a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural Indigenous Affairs [2004] FCAFC 10 at [13].
The Home Office Report states, relevantly, as follows:
4.6 Fraudulently obtained and forged documents
4.6.1 The BHC noted that forged and fraudulently obtained documents were easily obtainable. Tl noted that there were significant incidents of forged documents, particularly in relation to land matters, but it is not a general problem. Several sources commented that it was hard to fake news, such as posting an arrest warrant in a paper, in the mainstream media. One source noted that forged or fraudulent police or court documents are not easily obtainable, because of counter-signature processes and the fact that all documents can be checked against a database.
The applicant is correct in identifying that the Home Office Report records one source which said fraudulent police or court documents are not easily obtainable. Contrary to this, the British High Commission noted that they were easily obtainable, and Transparency International noted there were significant incidents of forged documents.
I am not satisfied that the Tribunal formed a wrong conclusion as to the country information in circumstances where the Home Office Report expressly cites sources that supported its conclusion. It is not the role of the Court to examine or evaluate country information and decide which position the Tribunal should have adopted; that was a matter for the Tribunal. It was open to the Tribunal, based on the Home Office Report, to find that fraudulent documents were easily obtained in Bangladesh. I also accept the Minister’s submissions that this was not the only basis on which the Tribunal did not accept, as genuine, the documentary evidence provided by the applicant in support of his claims.
I do not accept the applicant’s contention that the Tribunal’s rejection of the supporting documentation lacked rational and logical foundation, was formed on mere assumptions and/or was irrational, illogical and unreasonable.
Ground three is not made out.
Additional Ground Raised by the Minister
As a model litigant, the Minister, in written submissions, identified a potential issue with the Tribunal’s decision. This was that, on 12 May 2015, the applicant provided documents to the Department by email, which included court documents, an arrest warrant, and a marriage certificate. Those documents were never referenced by the delegate in their decision and the Tribunal found, incorrectly, that the applicant had not provided the document to the delegate.
The Minister submitted that this suggests that the delegate was not aware of the documents and that it is open to the Court to infer that the Department, in breach of s 418(3) of the Act, did not provide the documents to the Tribunal.
The Minister submitted that even so, this breach does not give rise to jurisdictional error in the Tribunal’s decision because compliance with s 418(3) is not a precondition to the exercise of the Tribunal’s function and in this case, it did not vitiate the Tribunal hearing or the decision-making process. This is so because the documents either did not engage s 418 of the Act or were otherwise before the Tribunal by different avenues:
…of the 2015 documents:
(a) The letter dated 10 November 2014 was provided by the applicant to the Tribunal, and was expressly considered by the Tribunal at [8] of its reasons (CB 150, [8]).
(b) The two marriage certificates did not engage the Secretary’s obligations pursuant to s 418 of the Act, in circumstances where they were not relevant to the applicant’s claims for protection and where the applicant’s identity was not an issue in dispute. In any event, the applicant provided a copy of his marriage certificate to the delegate with his visa application (CB 53), and it is open for the Court to infer that that marriage certificate was included in the documents referred to the Tribunal by the Secretary.
(c) The applicant provided a further copy of those Court documents to the Tribunal by hand on 18 December 2015 – being, a copy of documents relating to criminal proceedings initiated against the applicant in 2014.
(d) On 18 December 2015, the applicant provided the Tribunal by hand with the same 2014 court documents that were attached to the email (CB 103). These documents were expressly considered by the Tribunal in its decision: CB 159, [54].
As to the 2014 court documents, the Minister submitted that the Tribunal did not reject these because of its (erroneous) view that he had not provided them to the Department. Rather, it rejected them because the applicant failed to mention the proceedings to which they related until prompted, country information indicated the prevalence of fraudulent documents and because of its concerns about the applicant’s credibility generally.
The Minister submitted that any breach of s 418 had no practical detriment to the applicant and no jurisdictional error on this basis could be established.
The subject documents appear at pages CB 59 – 74 which relevantly included court documents, an arrest warrant and a marriage certificate. The Minister is correct in his submission that the documents were not referenced by the delegate in their decision. At [54] of the Tribunal’s decision, the Tribunal found that there was no evidence that the delegate had a copy of the subject documents.
Section 418 of the Act provided that:
(1) If an application for review is made to the Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
(2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:
(a) sets out the findings of fact made by the person who made the decision; and
(b) refers to the evidence on which those findings were based; and
(c) gives the reasons for the decision.
(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.
Given that the delegate does not refer to the documents at all and the Tribunal formed the view that the documents had not been provided to the delegate, it appears that the Secretary did not provide those documents to the Tribunal in breach of s 418 of the Act. This does not necessarily give rise to jurisdictional error in the Tribunal’s decision: SZOIN v Minister for Immigration & Citizenship [2011] FCAFC 38 at [65]-[66], [73]; BBS15 v Minister for Immigration and Border Protection (2017) 248 FCR 159 (BBS15) at [95]. The Secretary’s compliance with s 418 is not a precondition to the exercise by the Tribunal of its review function and there is no requirement for the Tribunal to consider all the documents provided to it by the Secretary: S487/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1309 per Sackville J at [32]. This is particularly so where, even if the documents had been given to the Tribunal by the Secretary, it would have made no difference to the outcome: BBS at [95]. A breach of s 418 may give rise to jurisdictional error where the applicant is misled because of the breach so as to have caused them to conduct their part in a hearing to their substantive disadvantage: BBS15 at [93].
In the present case, I am not satisfied that the Secretary’s breach of s 418 and the Tribunal’s belief that the documents had not been provided to the Department was detrimental to the applicant. First, the documents that should have been provided by the Secretary to the Tribunal pursuant to s 418 were before the Tribunal in any event. Second, the Tribunal considered and rejected those documents and gave reasons for that rejection which were open to it. Third, the Tribunal’s reasons for rejecting the documents were not based upon its mistaken belief that the applicant had not provided the documents to the Department. Fourth, nor were the Tribunal’s general adverse credibility findings based on the belief that the documents had not been provided to the Department.
I am satisfied that even if the Tribunal had received the documents from the Secretary, and no breach of s 418 had occurred, it would have made no difference to the outcome of the review.
The additional ground raised does not establish jurisdictional error.
CONCLUSION
As none of the grounds establish jurisdictional error, the application for judicial review must be dismissed.
COSTS
The Minister sought an order for the award of costs in the fixed amount of $5,000 in the event the applicant was unsuccessful. When invited to make submissions on the Minister’s request for a costs order, including the amount sought, the applicant took issue with the quantum sought stating that it was a large amount of money.
I have considered the application and the applicant’s response. I am satisfied that costs should follow the event and that the amount sought by the Minister is reasonable having regard to the work undertaken on the matter up to the date of the final hearing. For these reasons, I will order that the applicant pay the first respondent’s costs fixed in the sum of $5,000.
The application is dismissed with costs.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 23 June 2025
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