COT19 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 759

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

COT19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 759  

File number(s):	SYG 1621 of 2019
Judgment of:	JUDGE ZIPSER
Date of judgment:	23 May 2025
Catchwords:	MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – Tribunal not satisfied applicant was witness of truth and rejected most of applicant’s claims concerning past harm - no point of principle - application dismissed
Legislation:	Migration Act 1958 (Cth) ss 5, 5J(5), 36(2), 36(2A), 65, 91R(2), 476
Cases cited:	NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Division:	Division 2 General Federal Law
Number of paragraphs:	48
Date of hearing:	15 May 2025
Place:	Parramatta
Applicants:	In person
Solicitor for the Respondents:	Mr G Pasas (Clayton Utz)

ORDERS

SYG 1621 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BE TWEEN:

COT19

First Applicant

COV19

Second Applicant

COW19

Third Applicant

COX19

Fourth Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	23 MAY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to Minister for Immigration and Citizenship.

2.The application is dismissed.

3.The first, second and third applicants pay the first respondent’s costs in the sum of $8,371.30

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

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE ZIPSER

INTRODUCTION

1. On 1 July 2019, the applicants filed, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 12 June 2019. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants protection (subclass 866) visas under s 65 of the Act.

   FACTUAL BACKGROUND

2. On 9 December 2015, the applicants, citizens of Bangladesh, entered Australia on visitor visas. The first applicant (Applicant) was the primary applicant. The second applicant is the Applicant’s wife. The third and fourth applicants are the (now adult) children of the Applicant and the second applicant.

3. On 26 January 2016, the applicants lodged an application for protection visas. 

4. On 29 July 2016, a delegate of the first respondent refused to grant the applicants protection visas on the basis that the applicants did not engage Australia's protection obligations under s 36(2) of the Act.

5. On 9 August 2016, the applicants applied to the Tribunal for review of the delegate's decision.

6. On 26 July 2018, the Tribunal wrote to the applicants and invited them to appear before the Tribunal to give evidence and present arguments on 18 September 2018.

7. On 18 September 2018, the applicants appeared at a hearing before the Tribunal with the assistance of a Bengali interpreter and their migration agent.

8. On 12 June 2019, the Tribunal made a decision affirming the delegate’s decision not to grant the applicants protection visas.

   TRIBUNAL’S DECISION

9. The Tribunal at [15]-[40] set out the applicants' written claims. Those claims included:

   (a)The Applicant is a businessman and politician associated with the BNP. He had issues with other political parties from a young age and spent considerable time living and working in Saudi Arabia to avoid those problems.

   (b)In February 2011, the Applicant was attacked by a group of strangers and suffered a broken leg. The group worked for an Awami League leader.

   (c)In February 2015, the third applicant had an argument at a college meeting and was beaten by members of the youth wing of the Awami League. The third applicant was later threatened over the phone.

   (d)In August 2015, the Applicant began to promote himself for a March 2016 election. In late 2015 he received phone calls threatening him not to participate in the election and, shortly afterwards, was attacked while travelling home on his motorbike.

   (e)In November 2015, the fourth applicant was threatened on her way home from school because of the Applicant’s role as a politician.

   (f)In December 2015, the Applicant became aware that a case was filed against a BNP leader on behalf of the government, and he feared that charges would also be brought against the Applicant. For this reason, he took steps to obtain visitor visas for the family to come to Australia.

   (g)If the Applicant returns to Bangladesh, he will be arrested, killed or be made to disappear by the Awami League.

10. The Tribunal at [47]-[56] summarised oral evidence given by the Applicant at the hearing before the Tribunal on 18 September 2018.

11. The Tribunal at [57]-[74] discussed its concerns about the Applicant’s credibility and recorded its discussions with the Applicant at the hearing on 18 September 2018 about these concerns. The concerns included the following:

    (a)The Tribunal was concerned that the Applicant’s repeated return to Bangladesh from abroad was not consistent with his claimed fear of harm: at [58].

    (b)The Applicant gave inconsistent evidence about the year in which he was attacked by the group of strangers: at [59].

    (c)The Applicant’s oral evidence to the Tribunal about his travel to Malaysia was inconsistent with his written application and his son's oral evidence: at [60].

    (d)At the hearing before the Tribunal, the Applicant failed to mention his claim that he had become aware of a new case being filed against him: at [61].

    (e)The Applicant’s evidence about his involvement with and his knowledge of the BNP was "broad, in some instances repetitive and incomplete" and was adapted "in an attempt to be more persuasive": at [62]-[63].

    (f)The Applicant’s account of what happened to his daughter in November 2015 was "vastly different" to her account of those events: at [64].

    (g)The Applicant’s evidence about a property dispute with his brother "appeared to change throughout the hearing" and was "inconsistent, confused, vague and was shifted in an attempt to fit into a narrative": at [66]-[70].

12. After considering these concerns, the Tribunal at [71] made a finding that it was “not satisfied that [the Applicant] is a witness of truth” and continued at [71]-[72] to reject all of the Applicant’s claims concerning past threats, past harm and involvement in politics in Bangladesh. The Tribunal at [74] found that “taking [the Applicant’s] claims individually and cumulatively, the Tribunal is not satisfied that [the Applicant], now or in the foreseeable future, faces a real risk of serious harm if he were to be returned to Bangladesh”, or a real risk of significant harm which satisfied the complementary protection criterion for a protection visa.

13. The Tribunal at [75]-[78] considered the claims of the second applicant and was not satisfied she satisfied the criteria for a protection visa.

14. The Tribunal at [79]-[83] considered the claims of the fourth applicant (the daughter) and was not satisfied she satisfied the criteria for a protection visa.

15. The Tribunal at [84]-[95] considered the claims of the third applicant (the son). The Tribunal at [94] found that the son was not a witness of truth and “his claims were invented for the purpose of applying for a protection visa”. The Tribunal at [95] was not satisfied the son satisfied the criteria for a protection visa.

    PROCEDURAL HISTORY

    Judicial review application and steps up to hearing on 15 May 2025

16. On 1 July 2019, the applicants filed in this Court an application for judicial review of the Tribunal’s decision which contained the following grounds (as written):

    1.The Tribunal fell into error that she failed to ask the correct question - whether the Applicant is likely to suffer harm in his home district Dhaka Bangladesh.

    Particulars

    (i)The Tribunal focus that the applicant the will face discriminating treatment or harassment might experience from there family or local community would not appear to reach the threshold for finding of serious or significant harm as described and defined in the Act (s5J (5); s(36)(2A) of the Act).

    (ii)The Tribunal did not accept that the Applicant has suffered any harassment and discretionary treatment from the opponents.

    (iii)The Tribunal make the decision without proper an inquiry on AL atrocities against the applicant and his family were in Bangladesh though the Tribunal qualified to make a such as inquiry.

    (iv)The Tribunal failed to ask itself whether the Applicant could be subject to harm.

    2.The Tribunal erred and failed to assess convention nexus/complementary protection criteria whether a period of exile from home would amount of "significant harm" (s36[2A]) or serious harm (s91R[2]) and section 5 of the Migration Act 1958 (the Act) and thereby committed jurisdictional error and the applicants failed to even consider a complementary protection criteria. Alternatively, the Tribunal fell into error in that it applied to an incorrect test as to whether the applicants are likely to suffer harm for the purpose of complementary protection.

    Particulars

    (i)The Tribunal found that the main applicant did not suffer any discretionary treatment by his opponent and rival political leader Mr Salman and his supporters.

    (ii)Thought the opponents of his political party attacked him on the way to return home from local shopping centre riding on his motor cycle.

    (iii)The Tribunal did not accept the applicant statement and his son and daughters' statement on harassment and attacked to them by the AL goons when they were in Bangladesh taking their studies in the school.

    (iv)The Bangladeshi police generally reluctant to take any legal action against AL goons, where victim is related to the BNP politics.

    (v)The other funding that killing, detaining and kidnapping the BNPP leaders and activists continuing.

    3.The Tribunal in making finding that the Applicant will not face any problem in previous while he was in Bangladesh and will not face any harm if he returns to his country which is illogical and thereby fell into jurisdictional error.

    Particulars

    (i) The Tribunal found that the main applicant and his children are not credible persons and the applicants did not satisfy the criterion set out in s 36(2)(a).

    (ii)The Tribunal found that the BNP activists are not subject to harm and attacked by the AL and police.

    (iii) The Tribunal fell in to error as it failed to differentiate that the applicant and family members are not likely to suffer haram as BNP activists and leaders are targets of AL goons.

    4.The claim of particular social group/ political opinion arises in the material. The Tribunal in erred when it failed to consider the particular social group.

    (i) The risk to the main applicant and his family members including his school young daughter threaten were very serious and harmful to their daily life in Bangladesh.

    (ii)The applicants will face dare consequence from the AL goons as the AL still in power by a fraught and vote rigging election, held on 30/12/2018.

    (iii)The claim arose on the material.

    (iv)The Tribunal thereby committed jurisdictional error.

17. On 18 September 2019, the applicant filed a written submission dated 18 September 2019 (AS). On 28 January 2021, the applicant re-filed the same submission.

18. Following a period of inactivity, on 1 April 2025 the registry of the Court informed the parties that the matter was listed for hearing on 15 May 2025.

19. On 1 May 2025, the first respondent filed a written submission.

    Hearing on 15 May 2025

20. At the hearing before this Court, the applicants appeared unrepresented, assisted by a Bengali interpreter. All four applicants attended the hearing. The Applicant and his adult son (the third applicant) sat at the Bar table. The Applicant principally made oral submissions although, at his request, I permitted the third applicant to also make oral submissions. George Pasas of Clayton Utz appeared for the first respondent.

21. The applicants brought to the hearing a copy of the Court Book, filed and served by the first respondent in August 2019, which contained the Tribunal’s decision and documents before the Tribunal. At the commencement of the hearing, I directed the Applicant’s attention to the Tribunal’s decision. I explained that the Court’s role was limited to determining whether there was a jurisdictional error, which I described as a significant mistake or error, in the Tribunal’s decision. I explained, with reference to the Tribunal’s decision, the main categories of jurisdictional error. I told the applicants that, to win their case, they must persuade the Court there is a jurisdictional error in the Tribunal’s decision.

22. I offered the applicants a 10-minute break to consider oral submissions they wanted to make. They took up this opportunity.

23. Following the break, Mr Pasas tendered the Court Book (CB). The Applicant sought to tender a document which he said was a medical certificate in support of his claim, considered by the Tribunal and rejected, that he was attacked and injured in 2011. Since the applicants did not provide the document to the Tribunal, I considered that the document was not relevant to establishing jurisdictional error in the Tribunal’s decision and I did not accept the tender.

24. The Applicant requested an adjournment to obtain more documents to prove that he was injured in 2011. I refused the request for an adjournment since, among other reasons, the proposed documents were not relevant to establishing jurisdictional error in the Tribunal’s decision.

25. The Applicant made oral closing submissions. He stated that he has lived in Australia for 10 years and, if he returns to Bangladesh, he would be in big trouble and his family would face threats. He stated that his wife (the second applicant) is seriously ill.

26. The third applicant also made oral closing submissions. He repeated to the Court some of his claims to the Tribunal and stated that the claims were true, and the Tribunal failed to consider these matters. He stated that his mother has a mental health condition.

27. Mr Pasas, in his oral submissions, principally relied on the first respondent’s written submission.

    CONSIDERATION

    Ground 1

28. It is stated in the first sentence of ground 1 that the Tribunal “failed to ask the correct question – whether the Applicant is likely to suffer harm in his home district Dhaka Bangladesh”. However, first, was not the correct question for the Tribunal. The Tribunal at [5]-[9], under the heading “Criteria for a protection visa”, set out the correct questions for the Tribunal to address. The Tribunal at [74] (in respect of the Applicant), [78] (in respect of the second applicant), [83] (in respect of the fourth applicant) and [95] (in respect of the third applicant), answered those questions. The applicants have not explained how the Tribunal failed to address the correct questions.

29. The applicants, at AS [17] and [18], rely on parts of the Tribunal’s decision at [51]-[55] in support of ground 1. It is stated that the Tribunal at [51]-[55] “accepted” some of the applicants’ claims discussed in those paragraphs. However, the Tribunal at [51]-[55] summarised some of the Applicant’s claims. The Tribunal at [71]-[72] proceeded to reject most of these claims.

30. The meaning of particular (i) is unclear. This particular does not identify a jurisdictional error in the Tribunal’s decision.

31. It is asserted in particular (iii) that the Tribunal “make the decision without proper an inquiry on AL atrocities against the applicant and his family”. The meaning of this particular is unclear. The Tribunal at [57]-[72] considered the Applicant’s claims. The Tribunal at [71]-[72] rejected most of the Applicant’s claims and found that he was not a witness of truth. The applicants have not explained the manner in which the Tribunal did not make a proper inquiry. This particular does not identify a jurisdictional error in the Tribunal’s decision.

32. It is asserted in particular (iv) that the Tribunal “failed to ask itself whether the Applicant could be subject to harm”. As stated by the Tribunal at [8], a person has a well-founded fear of persecution if, among other elements, “there is a real chance they would be persecuted for one of more” Convention reasons. The Tribunal was not required to consider whether the Applicant could be subject to harm. This particular does not identify a jurisdictional error in the Tribunal’s decision.

33. The remaining particulars of ground 1 do not appear to assert or identify an error in the Tribunal’s decision.

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

    Ground 2

35. It is asserted in the opening sentence of ground 2 that the Tribunal “failed to assess convention nexus/complementary protection criteria” and the Tribunal “failed to even consider a complementary protection criteria”. However, the Tribunal made findings concerning the Convention nexus and complementary protection criteria for the Applicant at [74], for the second applicant at [78], for the third applicant at [95], and for the fourth applicant at [83]. This point does not identify a jurisdictional error in the Tribunal’s decision.

36. It is stated in the second sentence of ground 2 that, alternatively, the Tribunal “applied an incorrect test whether the applicants are likely to suffer harm for the purpose of complementary protection”. The applicants do not explain the manner in which the Tribunal applied an incorrect test. I cannot identify an error in the test applied by the Tribunal. This point does not identify a jurisdictional error in the Tribunal’s decision.

37. None of particulars (i) to (v) appear to assert or identify an error in the Tribunal’s decision.

38. AS [20]-[29], under the heading “Ground 2”, assert a number of matters which appear to have no connection to the contentions in ground 2 of the Application. It is contended at AS [20], [24] and [25] that the Tribunal “did not give any importance” to various matters. These contentions appear to acknowledge that the Tribunal considered the matters. That the Tribunal did not accept the matters, or did not give the matters the weight desired by the applicants, is not a jurisdictional error. It is stated at AS [21] that the Tribunal “did not make an inquiry about the [Applicant’s] involvement with the BNP politics”. I disagree. The Tribunal’s reasons for decision indicate that it carefully considered the Applicant’s claims concerning involvement with BNP politics. It is stated at AS [29] that the Tribunal “denied the applicants procedural fairness”, but the applicants do not particularise or explain the manner in which the Tribunal denied the applicants procedural fairness. A “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 (NWWJ) at [37]. I have read the remaining assertions at AS [20]-[29]. I am not persuaded that any identify a jurisdictional error in the Tribunal’s decision.

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

    Ground 3

40. It is contended in the first sentence of ground 3 that the Tribunal’s “finding that the Applicant will not face any problem in previous while he was in Bangladesh and will not face any harm if he returns to his country … is illogical”. The meaning of this assertion is unclear, since the applicants do not identify the finding claimed to be illogical or the manner in which the unidentified finding is illogical. A “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ at [37]. I am not persuaded that this point identifies a jurisdictional error in the Tribunal’s decision.

1. It is contended in particular (iii) that the Tribunal “fell into error as it failed to differentiate that the applicant and family members are not likely to suffer harm as BNP activists and leaders are targets of AL goons”. The meaning of this assertion is not clear. I am not persuaded that the assertion identifies a jurisdictional error in the Tribunal’s decision.

2. The remaining particulars of ground 3 do not appear to assert or identify an error in the Tribunal’s decision.

3. AS [30]-[40], under the heading “Ground 3”, assert a number of matters which appear to have no connection to the contentions stated in ground 3 of the Application. AS [30] and [35] again assert a “breach of procedural fairness” by the Tribunal without providing particulars. AS [33] asserts that the Tribunal “applied … wrong tests and wrong questions in relation to s 5 and s [36](2A) of the Migration Act 1958 or failed to address an integer/claim regarding the claim of the applicants” without providing particulars. A “failure to particularise a ground of review is itself a sufficient basis to dismiss it:” NWWJ at [37]. AS [38] complains that the Tribunal did not refer to various updated country information reports. But, first, the applicants do not identify the particular reports on which they rely. Second, they have not tendered the reports in this Court hearing and identified parts of the reports on which they rely. I have read the remaining assertions at AS [30]-[40]. I am not persuaded that any identify a jurisdictional error in the Tribunal’s decision.

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

   Ground 4

5. It is contended in the first sentence of ground 4 that “the claim of particular social group/ political opinion arises in the material”. The applicants do not identify the particular social group. They also do not identify the basis on which the claim is said to arise on the materials before the Tribunal. This contention lacks particulars, and does not identify a jurisdictional error in the Tribunal’s decision.

6. None of particulars (i) to (iv) appear to assert or identify an error in the Tribunal’s decision.

7. Ground 4 does not identify a jurisdictional error in the Tribunal’s decision.

   COSTS

8. At the end of the hearing, I invited submissions from the parties on costs. Mr Pasas sought an order in the scale amount of $8,371.30 against the first to third applicants, but not against the fourth applicant who was a minor when the Application was filed. The Applicant did not oppose the amount of $8,371.30. I will make the order sought.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       23 May 2025