CRM23 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1274

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CRM23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1274

File number:

SYG 1854 of 2023

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

27 November 2024

Catchwords:

 MIGRATION – Administrative Appeals Tribunal – Protection visa (subclass 785) – where the grounds of judicial review are not supported by particulars – whether the Tribunal decision was unreasonable – no merit – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 55, 65, 103, 116, 189.

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2

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

Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214

Minister for Immigration v Li (2013) 297 ALR 225

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

61

Date of hearing:

19 November 2024

Place:

Parramatta

Solicitor for the Applicant:

Self-represented litigant

Counsel for the First Respondent:

Mr Reilly

Solicitor for the First Respondent:

Mr Law (Australian Government Solicitor)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 1854 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CRM23

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	27 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,400.00.

3.The name of the First Respondent be changed to ‘Minister for Immigration and Multicultural Affairs’.

THE COURT NOTES THAT:

A.The Orders made on 27 November 2024 are amended pursuant to r 17.05(2)(g), (h) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 to add Order 3 to reflect the name change of the First Respondent.

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 D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision made by the then Administrative Appeals Tribunal (“Tribunal”) on 27 October 2023. The Tribunal affirmed the decision of a delegate of the Minister for Home Affairs (“delegate”) on 22 August 2023 to refuse to grant the applicant a Temporary Protection (class XD) (subclass 785) visa (“visa”).

2. For the reasons outlined below, the application must be refused.     

   BACKGROUND

3. The applicant is a male citizen of Bangladesh. He first entered Australia on 4 August 2023. He arrived using a Visitor visa (subclass 600). He applied for the Visitor visa on 29 May 2023. It was granted on 6 June 2023 and permitted a three month stay from the date of arrival.

4. He married in 2022 and has a son, born in the same year. His wife and child live in Bangladesh.

5. On arrival, the applicant was interviewed and provided with a Notice of Intention to Consider Cancellation (NOICC) due to suspicions he had provided a bogus document in support of his visitor visa application. The NOICC stated that grounds under s 116(1)(d) of the Migration Act 1958 (Cth) (“the Act”) appeared to exist. It outlined non-citizens, pursuant to s 103, must not provide a bogus document. It was alleged that he had relied upon a previous passport in support of his visitor visa application that contained fake Turkish and South Korean visa stamps as evidence of his travel history.

6. The applicant’s visitor visa was cancelled on 4 August 2023. The applicant was detained under s 189 of the Act.

7. On 10 August 2023, the applicant applied for a protection visa, claiming to fear harm from the Awami League (“AL”) on account of his involvement with the Bangladesh National Party (“BNP”). He claimed he held a position in the student wing of BNP being the Jatiyatabadi Chhatra Dal (“JCD”).

8. The delegate requested further information under s 55 of the Act. No response was provided.

9. The delegate refused to grant the visa under s 65 of the Act on 22 August 2023.

10. On 27 August 2023, the applicant applied to the Tribunal for a merits review of the refusal decision.

11. The applicant’s representative provided documents, statements and submissions prior to the hearing. The hearing was conducted in October 2023 and was facilitated by a certified interpreter who spoke Bengali and English. After the hearing, the applicant was invited to comment on or respond to information pursuant to s 424A of the Act. The applicant provided a response on 23 October 2023.

12. The Tribunal affirmed the decision under review on 27 October 2023.

    ADMINISTRATIVE APPEALS TRIBUNAL DECISION

13. The Tribunal’s decision is comprehensive and detailed, spanning some 19 pages. It is an extensive assessment of the applicant’s evidence and consideration of his claims.

14. The Tribunal outlined at [5] the applicant’s protection claims included in his visa application. They were based on his involvement in the BNP and position in the JCD. It referenced claims that political opponents beat the applicant on a number of occasions in 2014, 2015 and 2016 and claims that he was subject to false criminal charges.

15. The Tribunal noted at [6] the applicant’s claim to fear that he will be physically harmed, imprisoned or killed by the AL government and its agents if he returns to Bangladesh. He claimed that, as the government is responsible for or complicit in the harm he faces, there is no prospect of him receiving protection. The applicant asserted the risk exists throughout Bangladesh which he noted is a small country.

16. The Tribunal instructed itself as to the relevant criteria for a protection visa and mandatory considerations in assessing the applicant’s claim at [8] – [13].

17. At [22] the Tribunal accepted the applicant was a national of Bangladesh, which would be the receiving country assessed in reference to the protection claims.

18. The Tribunal noted at [50] several documents were provided by the applicant in support of his claim about criminal charges and arrests due to his links to the BNP. These documents included:

    ·The First Information Report and ejahar of 25 October 2013 which refers to the applicant and four other accused of having committed offences while participating in protests the Tribunal took to be the BNP-led 18 party alliance of opposition parties which the BNP formed in April 2012 to campaign against the AL government. A charge sheet with similar language was also provided.

    ·A purported newspaper article with a translated date of ‘13 July’ with a caption describing the applicant as a JCD leader. Only the title was translated.

    ·Two letters from an advocate who, in post-hearing submissions, is described as the General Secretary of a District Committee of the BNP. The first letter was dated August 2023 and the second October 2023.

19. The Tribunal raised concerns about the police and court-related documents, noting the applicant provided only the purported English translations and no Bengali transcript, let alone a copy of the original which formed the basis for the transcript.

20. At hearing, the applicant initially said the newspaper article related to his arrest in 2013 while he was still at college. However, his representative later clarified that the Bengali text stated ‘13 July 2015’ and that the year had been omitted from the translation. As to how the applicant obtained the clipping, the Tribunal found the applicant’s account of his brother’s ability to track down both the journalist and the article to be unpersuasive.

21. The letters outlined the applicant’s role in the BNP and position in the JCD. The Tribunal’s view was that the applicant’s mention of this work was in a piecemeal, improvised manner to allay concerns he did not hold any political role or profile from 2014 to 2018. Given the Tribunal’s concerns about the applicant’s credibility and in the absence of corroborative evidence to demonstrate the advocate’s direct personal knowledge of the applicant’s political work, the Tribunal placed minimal weight on the second letter as evidence that the applicant held any such positions.

22. The Tribunal accepted at [90] that the applicant was a reasonably well-informed observer of local and Bangladeshi politics, and that he favoured the opposition BNP and/or other parties that lean towards Islamic values.

23. The Tribunal accepted at [61] that the applicant may have joined the JCD at his college, but did not accept that he was an active member or office-bearer, in the JCD; or that he had any other political engagement or profile since leaving college in 2014.

24. The Tribunal did not accept at [69] that the applicant was assaulted in the course of political activities, in 2014, 2015 or 2016, or indeed at any time. It also did not accept at [82] that he had been subject to any politically motivated false charges.

25. The Tribunal did not accept at [59] that the applicant went to Saudi Arabia in response to threats in Bangladesh. The Tribunal found at [88] that the applicant went to Saudi Arabia in 2018 for reasons unrelated to his protection claims and stated at [91] that he returned to Bangladesh without any fears for his safety (or the need to rely on any assurances that he could avoid court action).

26. The Tribunal did not accept at [91] that the applicant was subject to any politically motivated assaults or any other harm when he was in Bangladesh in early 2022 and that, if he did indeed cut short his visit to return early to Saudi Arabia, he did so for unrelated reasons.

27. The Tribunal did not accept at [92] that the applicant genuinely feared persecution or significant harm in Bangladesh, for reasons of any political preference he may have for the BNP, or for any other reasons.

28. The Tribunal was not satisfied at [98] the applicant faced a real chance of the Bangladesh authorities, AL, agents or anyone inflicting serious harm amount to the applicant merely because he favours the BNP. The Tribunal did not accept the applicant had any adverse profile whether for the rejected political reasons such as past assaults or false criminal charges or for any other reasons that could increase the chance of him being subject to future targeting.

29. The Tribunal concluded at [100] it considered the applicant’s claims and evidence cumulatively and individually, but found the applicant did not face a real chance of serious harm amounting to persecution, for any reason set out in s 5J(1) of the Act in Bangladesh in the reasonably foreseeable future. The applicant therefore did not meet s 36(2)(a).

30. The Tribunal was also not satisfied at [104] that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk that he will suffer significant harm. Therefore, the applicant did not meet the criteria for complimentary protection pursuant to s 36(2)(aa).

31. Further, there was no suggestion the applicant satisfied s 36(2) on the basis of being a member of the same family unit as a person who satisfied s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Tribunal affirmed the decision to refuse the applicant a protection visa.

    GROUNDS OF JUDICIAL REVIEW

32. The grounds of judicial review are contained in an Originating Application lodged on 14 November 2023. They are as follows:

    1.I admit that the member of the Tribunal was kind but not providing information requested was beyond my own control as per point 23 of the Tribunal’s decision

    2.I was represented by legal practitioner Mr Sirajul of MS Haque and Associates who attended the hearing but there was not sufficient time to make the necessary recommendation and proof that I was under pressure as a result of my detention.

    3.The Member accepted that I have a reasonable knowledge of local politics yet unreasonably rejected my claim and my persecution and harm as a result of my political involvement.

    4.The Tribunal overlooked the issue of my safety in Bangladesh even though I provided genuine documentation and the Tribunal failed to test the genuineness of the documents.

    5.The Tribunal failed to understand my absence from Bangladesh to Saudi Arabia to avoid harm and risk as well as persecution.

    6.I continue to believe that the Tribunal should have been convinced that my case is genuine otherwise I would not have made my trip to Australia to avoid further harm.

    7.The Tribunal decision is not reasonable and contrary to its findings I have a well founded fear of harm should I return to Bangladesh.

    THE APPLICANT’S SUBMISSIONS

33. The applicant appeared before the Court unrepresented.  He was assisted by an interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been provided to him and he understood them. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.

34. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

35. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court that prior to coming to Australia, he was in Saudi Arabia. He said he had many friends in Australia. In 2022, he went to Bangladesh for a four-month holiday but while he was there, he was tortured by the army. He told these things to the Tribunal.

36. He said he provided all of this documentation to the agency that assisted him in obtaining the visitor visa. He knew nothing about any false documentation being used to support his application for the visitor’s visa.

37. He claimed there was a political case filed against him in Bangladesh. He provided documents in support of this to his lawyer who represented him at the Tribunal. He said he had further documents he wished to provide the Court. However, the Court advised the applicant it was unable to receive new evidence in matters involving judicial review.

38. The applicant was repeatedly requested to focus in his oral submissions on any legal or jurisdictional error that was present in the Tribunal decision. He was unable to articulate any matter relevant to jurisdictional error and instead, concentrated on matters that only went to the merits of the decision under review

39. At the conclusion of the respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. He again focused on matters going to the merits of the decision indicating that his mother was severely ill and that his family were worse off as there had been new cases filed against his family while he was in detention.

    THE FIRST RESPONDENT’S SUBMISSIONS

40. The first respondent submitted grounds one and two do not identify any jurisdictional error in the Tribunal’s reasons. It is unclear what error if any is intended to be asserted by these grounds.

41. Grounds three and seven appear to claim the Tribunal’s decision was legally unreasonable, but do not explain why. The first respondent contended as reasonable minds could differ about the Tribunal’s reasoning it is not legally unreasonable or irrational within the principles in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78], [130-131]; [2010] HCA 16.

42. Ground four is possibly an assertion that the Tribunal should have made further inquiries concerning the applicant’s documents but does not explain why the Tribunal acted unreasonably in not doing so as required by Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [25].

43. Grounds five and six disagree with the Tribunal’s findings but do not identify any jurisdictional error, and at most seek merits review.

44. The first respondent submitted all of the grounds should fail in the absence of particularisation and submissions. No written submissions have been received from the applicant.

    CONSIDERATION

45. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

    … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister.  The Court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

46. It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant; (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).

47. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348).

48. It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal; (see: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).

49. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee; (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).

50. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal; (see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). The Court notes that none of the grounds of judicial review are supported by particulars, and in these circumstances, any meaningful response by the Ministers legal representatives is rendered almost impossible.

    Ground one

51. Ground one is not a proper ground of review. The applicant simply claims that he did not provide information that was requested for reasons beyond his control. No jurisdictional error is alleged. Ground one has no merit.

    Ground two

52. Ground two is an allegation there was insufficient time for the applicant’s solicitor to provide the necessary proofs to satisfy the Tribunal that the applicant was entitled to a protection visa. Again, this is not a proper ground of review as it does not assert any jurisdictional error. Ground two has no merit.

    Grounds three and seven

1. Grounds three and seven can be dealt with together. They appear to assert unreasonableness in the Tribunal’s decision. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it; (see: Minister for Immigration v Li (2013) 297 ALR 225 (“Li”) at [28]), or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgments made by the decision-maker: Li at [30], [113].

2. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:

   The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.  The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

3. The Court, having reviewed the Tribunal decision, is not of the view that there is anything irrational, illogical or legally unreasonable in the decision of the Tribunal. The Court is satisfied that the Tribunal is entitled to arrive at the conclusion it did, based on the evidence that was before it and for the reasons it gave. Ground three and seven have no merit.

   Ground four

4. Ground four is somewhat unclear. It seems to assert that the Tribunal should have made enquiries in relation to documents provided which the applicant submits supported his claim of fears of being unsafe should he return to Bangladesh. No particulars are provided as to which documents should have been tested.

5. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction; (see: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]). The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”; (see: Li at [82]).

6. The Court is not satisfied that there was any critical material which could have easily been ascertained by the Tribunal that may have impacted on the applicant’s case. The Court does not accept that the Tribunal acted unreasonably in not making these enquiries. Ground four has no merit.

   Grounds five and six

7. The Court agrees with the submissions of the Respondent being that grounds five and six do not identify any jurisdictional error. At most, they express vehement disagreement with the factual conclusions of the Tribunal and invite the Court to undertake impermissible merits review. Grounds five and six have no merit.

8. As the applicant is unrepresented, the Court has perused the Court Book together with the Tribunal decision record but is unable to ascertain any particularised jurisdictional error.

   DETERMINATION

9. As none of the grounds of judicial review have merit, the Court has no alternative but to dismiss the application with costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       27 November 2024