CAB22 v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 680

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CAB22 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 680

File number(s):	SYG 831 of 2022
Judgment of:	JUDGE ZIPSER
Date of judgment:	13 May 2025
Catchwords:	MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal failed to consider evidence – whether Tribunal failed to consider claim - no jurisdictional error – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 5J, 65, 476
Cases cited:	Minister for Immigration and Border Protection v Gill [2019] FCAFC 9; 268 FCR 575
Division:	Division 2 General Federal Law
Number of paragraphs:	40
Date of hearing:	30 April 2025
Place:	Parramatta
Applicant:	In person
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

SYG 831 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CAB22

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	13 MAY 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 applicant pay the first respondent’s costs in the sum of $7,400.

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

1. On 3 June 2022, the applicant lodged 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 4 May 2022. The Tribunal affirmed the decision of a delegate of the first respondent under s 65 of the Act refusing to grant the applicant a protection (subclass 866) visa.

2. For the reasons that follow, the application is dismissed.

   FACTUAL BACKGROUND

3. The applicant, a citizen of Bangladesh, arrived in Australia on 2 April 2018 on a temporary activity visa to attend the 2018 Commonwealth Games as a journalist.

4. On 4 May 2018, the applicant applied for a protection visa.

5. Following an interview on 18 June 2018, on 20 July 2018 a delegate of the first respondent made a decision refusing to grant the visa.

6. On 30 July 2018, the applicant applied to the Tribunal for review of the delegate’s decision.

7. On 2 February 2022, the Tribunal invited the applicant to attend a hearing on 16 March 2022.

8. On 16 March 2022, the applicant attended a hearing before the Tribunal.

9. On 4 May 2022, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a protection visa.

   TRIBUNAL’S DECISION

10. The Tribunal at [14] noted that the applicant claimed to be an active member of the Bangladesh National Party (BNP) who was physically harmed and falsely accused of acts of violence by persons involved with the Awami League, and he feared being arrested on false charges, killed or otherwise harmed if he returns to Bangladesh.

11. The Tribunal at [15]-[31] considered relevant country information, including at [31] that “the use of fraudulent documents and fraudulently obtained genuine documents was widespread in Bangladesh”.

12. The Tribunal at [32]-[78] reviewed the evidence before it.

13. The Tribunal at [79]-[99] considered the applicant’s involvement with the BNP prior to relocating to Dhaka in February 2011. The Tribunal rejected many of the applicant’s claims concerning events in this period. The Tribunal at [99] did not accept that the applicant was a member of the BNP prior to 2011 or that he was threatened or pursued by members of the Awami League in this period.

14. The Tribunal at [106]-[113] considered the applicant’s political activities after relocating to Dhaka in 2011. The Tribunal at [111] was not satisfied the applicant had any involvement with the BNP while living in Dhaka.

15. The Tribunal at [114]-[120] considered the applicant’s political activities after 2011. The Tribunal did not accept most of the applicant’s claims.

16. The Tribunal at [131], after making some additional findings of fact concerning the applicant’s claims, did “not accept that the applicant was active in the BNP in Bangladesh at any time or that he or members of his family were threatened or harmed by anyone because of his political activities”.

17. Following on from the above findings of fact:

    (a)The Tribunal at [139], in considering whether the applicant met the refugee criterion, was “not satisfied that he has a well-founded fear of persecution in Bangladesh” for a Convention reason.

    (b)The Tribunal at [140], in considering whether the applicant met the complementary protection criterion, was “not satisfied that the applicant faces a real risk of suffering significant harm on return to Bangladesh for any reason”.

    PROCEEDINGS IN THIS COURT

    Judicial review application and steps up to hearing on 30 April 2025

18. On 3 June 2022, the applicant filed in this Court an application for judicial review of the Tribunal’s decision. The application contained three grounds (reproduced as written):

    1.The Administrative Appeals Tribunal (Tribunal) fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.

    Particulars

    a)   The Tribunal accepted that the Applicant had submitted new evidence in support of his application since his initial interview and decision by the delegate of the Minister; however, it failed to take the new evidence which is an integer part of the clam into consideration. The Applicant had submitted the following evidence which critically supports his claim that he will face serious harm, false imprisonment and kidnapping or even death in the hands of either the authorities who serves the interest of the Awami League Party (AL) or the AL supporters if returned to his country.

    i.A discharge certificate from the National Hospital which clearly stated that the applicant was admitted on 14 September 2016 with head and facial injuries and discharged on 16 September 2016 and that he was later referred to a hospital in Lakshimpur for further treatment.

    ii.A first information report (FIR) issued in Lakshimpur by the Police which stated that the Applicant and over 140 other people were accused of or charged with trumpeted offences under the penal code and the Explosive Substances Act after being involve in a violent incident which took place between 10 am and 10:30 am on 25 September 2017.

    iii.A letter from a lawyer in Lakshimpur dated 10 February 2022 which confirm the charges and stated that he represents the Applicant in relation to the 2017 charges.

    iv.A translation of an article which appeared in the Bengali daily paper The Alokita Lakshimpur. It states that there was a raid on the applicant’s house on 10 January 2019 by people who wanted to kill him. His father was assaulted, and the group attempted to set fire to the house but it was put out by local people.

    v.Letters of reference form prominent figures within the BNP party confirming that fact the Applicant will face serious harm if he returns to his country.

    2.The Administrative Appeals Tribunal erred by failing to consider and deal with a substantial, clearly articulated claim made by the applicant in relation to why the AL group would renew their interest in him if he were to return to Bangladesh.

    Particulars

    b)   The Applicant had declared in his written submission to the Tribunal that his family including his parents who are living in his home country have been continuously intimidated, threatened, hassled and even attacked by the AL supporters to the point that the Applicant’s father was assaulted, and his home burnt down. The Tribunal had failed to consider despite the fact that the convincing supporting evidence was provided, and the Tribunal was invited to contact the sources to corroborate the evidence.

    3.The Tribunal fell into jurisdictional error in that it misunderstood the law or applied the wrong legal test.

    Particulars

    c) The Tribunal erred in interpreting or applying the “real chance” test required by section 5J of the Migration Act 1958, shown by its finding that the Applicant did not have a real chance of suffering serious harm or significant harm such as to meet criteria for protection under section 36(2)(a) and 36(2)(aa) of the Act, despite the material before it including submissions, and recent reports relating to torture and abuse of human rights including kidnapping, killing, and cases of people disappearing with no trace due to their strong and vocal political standpoint against the AL ruling party.

19. Following a period of inactivity, on 19 February 2025, the parties were notified by the registry of the Court that the matter was listed for hearing on 30 April 2025.

20. On 14 April 2025, the first respondent filed a written submission (RS).

21. On 29 April 2025, the applicant filed a written submission (AS).

    Hearing on 30 April 2025

22. At the hearing on 30 April 2025, the applicant appeared in person, assisted by a Bengali interpreter. Tim Reilly of counsel appeared for the first respondent.

23. The applicant brought to the hearing a bundle of documents associated with the Court proceeding. At the commencement of the hearing, I directed the applicant’s attention to the Tribunal’s decision dated 4 May 2022 which was among the applicant’s documents. I explained that the Court’s role was limited to considering whether or not there was a jurisdictional error, which I described as a significant error or mistake, in the Tribunal’s decision. With reference to the Tribunal’s decision, I explained the main categories of jurisdictional error. I explained that, for the applicant to win the Court proceeding, he must persuade the Court there is a jurisdictional error in the Tribunal’s decision.

24. I offered the applicant a 10-minute break to consider oral submissions he wanted to make to the Court. The applicant took up this opportunity.

25. Following the break, Mr Reilly tendered a Court Book (CB), filed and served by the first respondent in November 2022, which contained the Tribunal’s decision and documents before the Tribunal.

26. The applicant then made oral submissions. He stated that the claims he made to the Tribunal were true and the Tribunal did not give him justice. He stated that, if he returns to Bangladesh, his life is not safe.

27. Mr Reilly, in oral submissions, relied on his written submission.

    CONSIDERATION

    Ground 1 of application

28. The applicant contends in ground 1 that the Tribunal “failed to take … into consideration” “the following evidence which critically supports his claims”:

    (a)a discharge certificate which stated that the applicant was in hospital for a few days in September 2016;

    (b)a first information report which stated that the applicant and others were charged with offences after being involved in an incident on 25 September 2017;

    (c)a letter from a lawyer dated 10 February 2022 concerning the charges in 2017;

    (d)a translation of an article which appeared in a Bengali daily paper; and

    (e)“letters of reference from prominent figures within the BNP Party”.

29. In relation to the discharge certificate (which appears at CB 169-171), the Tribunal summarised the document at [45] and [118], described the applicant’s oral evidence about the incident at [60] and [118], and found at [118] that it was not satisfied the document was genuine. It is clear the Tribunal considered the discharge certificate.

30. In relation to the first information report (English translation appears at CB 173-190), the Tribunal considered the document at [119] and was not satisfied the document was genuine. It is clear the Tribunal considered the first information report.

31. In relation to the letter from a lawyer (which appears at CB 191), the Tribunal considered the document at [120] and was “not satisfied that the information in this letter is true or accurate”. It is clear the Tribunal considered the letter.

32. In relation to the translation of a news article, the Tribunal considered the article at [128] and noted it could not be authenticated. It is clear the Tribunal considered the news article.

33. In relation to the letters of reference, the Tribunal considered the documents at [94]-[97] and was not satisfied the documents were genuine. It is clear the Tribunal considered the letters of reference.

34. Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.

    Ground 2 of application

35. The applicant contends in ground 2 that the Tribunal “failed to consider” a claim by the applicant that “his family … have been continuously intimated, threatened, hassled and even attacked by the AL supporters”. The Tribunal at [123]-[124] specifically dealt with the applicant’s claims about harassment and harm to his family and did “not accept that his family was harassed or attacked by AL members who wished to harm him …”. It is clear that the Tribunal considered the claim. The mere fact that Tribunal did not accept the claim is not an error, let alone a jurisdictional error.

36. Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.

    Ground 3 of application

37. The applicant contends in ground 3 that the Tribunal “erred in interpreting or applying the ‘real chance’ test [in] s 5J of the Migration Act”, demonstrated by the Tribunal’s finding that the applicant did not face a real chance of serious harm, despite the material before the Tribunal.

38. Where a court hearing a judicial review application considers that it was not open to the decision-maker to make a particular decision or finding, the court might infer that the decision-maker erred in interpreting the law. However, in the present matter, the Tribunal’s “reasons for the decision disclose a logical and intelligible basis” (Minister for Immigration and Border Protection v Gill [2019] FCAFC 9; 268 FCR 575 at [54]) for its conclusion at [139] that it was “not satisfied that the applicant faces a real chance of suffering serious harm for any reason if he returns to Bangladesh now or in the reasonably foreseeable future”. I am not persuaded that the Tribunal erred in interpreting or applying the real chance test.

39. Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.

    COSTS

40. At the end of the hearing, I invited submissions from the parties on costs. Mr Reilly did not have instructions on the amount sought by the first respondent. The applicant did not oppose an order for costs against him not greater than the scale amount of $8,371.30. Following the hearing, the first respondent’s solicitor informed my chambers and the applicant that the first respondent sought $7,400, which amount was less than the first respondent’s solicitor/client costs. I consider the amount of $7,400 is reasonable. I will make this order.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       13 May 2025