DZD20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 449
•28 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DZD20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 449
File number(s): SYG 2058 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 28 March 2025 Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal – Protection visa – Bangladesh – Failure to consider an objection to relocation arising from a post hearing statutory declaration – Jurisdictional error established – Writs issued Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
LPDT v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Multicultural Affairs, Re Ex parte Applicant S20/2002;Appellant S106/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 30
MZANX v Minister for Immigration and Border Protection [2017] FCA 307MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352
MZZQV v Minister for Immigration and Border Protection [2015] FCA 533
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff M1/2021 v Minister for Home Affairs [2021] HCA 17
SZATV v Minister of Immigration and Citizenship [2007] HCA 40
SZFDV v Minister for Immigration and Citizenship [2007] HCA 41
SZSXH v Minister for Immigration and Border Protection [2014] FCA 914
SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of hearing: 11 March 2025 Place: Parramatta Counsel for the Applicant: Mr Vertoudakis Solicitor for the Applicant: Westside Legal Counsel for the First Respondent: Ms Francois Solicitor for the First Respondent: Mills Oakley Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2058 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DZD20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to Minister for Immigration and Multicultural Affairs.
2.A writ of certiorari issue quashing the decision of the Second Respondent made on 10 August 2020.
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
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 31 August 2020, and amended on 23 December 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 10 August 2020. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicant a Protection (subclass 866) visa (the protection 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. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.
BACKGROUND
The applicant is a male citizen of Bangladesh. He claims to be an indigenous person of the Chakma ethnicity residing in the Chittagong Hill Tracts (CHT) and claims to be a Buddhist. The applicant first arrived in Australia on a visitor visa on 5 June 2015 and applied for the protection visa on 30 June 2015.
In summary, the applicant claims that if he were to return to Bangladesh he would be harmed or killed by the authorities, Muslim settlers or Islamic fundamentalists because he is an indigenous person and an indigenous activist, his brother is the commander of an indigenous militia, and he is Buddhist.
On 31 August 2016 the delegate refused the applicant a protection visa. On 3 September 2016 the applicant applied to the Tribunal for review of the delegate’s decision.
On 24 September 2018 the applicant was invited to provide submissions to the Tribunal as to his claims and was invited to attend a hearing before it scheduled for 30 November 2018. On 13 November 2018 the hearing was rescheduled to 14 December 2018.
On 7 December 2018 and 10 December 2018 the applicant provided further documents to the Tribunal. On 11 December 2018 the Tribunal postponed the hearing to an unspecified date due to the quantity of the new evidence. On 19 February 2019 the applicant was invited to attend a hearing before the Tribunal scheduled for 14 March 2019. On 6 March 2019 the Tribunal requested further documents from the applicant.
On 14 March 2019 the applicant, his representative, witnesses and an interpreter attended the hearing before the Tribunal. The matter was adjourned and scheduled for further hearing on 20 March 2019. The applicant appeared before the Tribunal again on 20 March 2019 along with his representative, a witness and an interpreter. Further documents and submissions were provided to the Tribunal after this hearing with the last of such information being provided to the Tribunal on 27 April 2020.
On 10 August 2020 the Tribunal affirmed the decision under review. The Tribunal’s decision was lengthy, spanning 43 pages and 182 paragraphs. For the purposes of the present proceedings and keeping in mind the specific grounds of review raised by the applicant, it is unnecessary to examine or repeat the minutiae of the decision. The following paragraphs focus on the Tribunal’s consideration of whether the applicant could reasonably relocate in Bangladesh.
THE TRIBUNAL’S DECISION
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; noting 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 policy guidelines titled PAM3 Refugee and Humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and Humanitarian - Refugee Law Guidelines and any relevant country information assessments. The Tribunal stated it had considered assessments prepared by the Department of Foreign Affairs and Trading (DFAT) insofar as they were relevant. The Tribunal specifically stated it had regard to the DFAT Report on Bangladesh dated 22 August 2019.
The Tribunal described the applicant’s background, general information about Bangladesh and about indigenous Chakma people and then summarised the applicant’s claims (at [20]):
The applicant presented a number of claims over the course of the visa application and review process. Very broadly speaking, his primary claims are that he would be killed if he returned to Bangladesh by various state and non-state agents including the army, Bengali Muslim settlers, and Islamic fundamentalists because he is an indigenous political activist, his brother is the commander of an indigenous militia, and because he is indigenous and Buddhist.
The Tribunal then particularised the applicant’s claims and evidence in more detail including his reasons for claiming protection, travel history, supporting documents, supporting written evidence and the oral evidence that the applicant and his witnesses gave before the Tribunal on 14 and 20 March 2019. The Tribunal also traversed the claims (including their development) at the time of application, at the interview before the delegate, in post-interview submissions to the delegate, in submissions and statutory declarations to the Tribunal, at the hearings before it and in a statutory declaration provided after the hearings. The Tribunal described the supporting evidence/documents provided to the Tribunal including witness statements/statutory declarations, media reports and a psychological report.
After outlining all the information and evidence, the Tribunal considered the credibility of the applicant (at [83] – [107]). The Tribunal ultimately concluded that the applicant was not a credible witness. This finding was based on a number of factors including inconsistencies between the applicant’s written and oral evidence and the evidence of his other witnesses, his ‘rote-like’ recitation of matters concerning the treatment of Indigenous people and Buddhists in Bangladesh whilst being ‘intentionally evasive and vague about details of his own claimed activities and experiences’ and that his claims developed over the course of the review without reasonable explanation. The applicant’s grounds of judicial review do not challenge the credibility finding of the Tribunal. The Tribunal also made adverse credibility findings against some of the applicant’s witnesses.
The Tribunal did not accept that the documents submitted from Bangladesh were genuine (with the exception of ID documents, educational documents and certain letters). This was based on country information, inconsistencies between the documentary evidence and the applicant’s oral evidence, and the applicant’s general lack of credibility.
The Tribunal then went on to make findings. It accepted that the applicant was a national of Bangladesh of Chakma ethnicity and a Buddhist who resided in the CHT. It summarised its findings as follows:
153. I find that in Bangladesh the applicant had not been a member of any indigenous political party, or any indigenous or Buddhist organisation nor did he engage in any activity in Bangladesh connected to an indigenous political party, or any indigenous or Buddhist organisation.
154. I find that the applicant was not subjected to any harm in Bangladesh due to his family background, political or religious activity, or actual or imputed political opinion. Further, the applicant does not have a genuine fear of being harmed if he returns to Bangladesh because he would be perceived as a separatist, supportive of a secessionist movement, having a political opinion supportive of external self-determination for Jumma people or against parties passively or actively supporting Islam as the state religion, or being a member of the particular social group of a family unit affiliated with secessionist movements in the CHT. I find those late claims were invented to strengthen the applicant’s case.
155. I find that the only indigenous or religious organisation the applicant has been a member of is the Sri Lankan Branch of the CHT Buddhist Monks Association. Further, I find the applicant has no intention of being a novice monk or fully ordained monk in the future.
156. I find that the applicant has not engaged in any political activity since 2013 other than for the purpose for strengthening his claim to be a refugee. Given his very limited political activity since leaving Sri Lanka and as I am not satisfied that he attended the three demonstrations and signed the two petitions in Australia otherwise than for the purpose of strengthening his claim to be a refugee I find that he is not a political activist.
157. I find that the applicant has an opinion which is supportive of the indigenous and Buddhist peoples of the CHT and their rights, and critical of the treatment of indigenous and Buddhist peoples in Bangladesh by Bangladesh authorities, Bengali settlers and others but that he will not join a indigenous political party or organisation nor engage in any public political activity connected to indigenous people if he returns to Bangladesh.
158. I find that if the applicant returns to Bangladesh he will attend Buddhist temples for religious worship, and participate in cultural and religious celebrations and occasions as an ordinary member of the Chakma and Buddhist communities.
Having made its findings, the Tribunal turned its mind to making its assessment of the future risk of harm to the applicant. The Tribunal was not satisfied that there was a real chance that the applicant would be subject to serious or significant harm if he returned to Bangladesh due to his family or family background, because he is a member of the Jumma (indigenous community) diaspora or because of his political, religious, social and cultural activities outside Bangladesh.
Notwithstanding, the Tribunal found that there was a real risk of serious and significant harm for reasons of race and religion, that being that the applicant was an indigenous Chakma person who was a Buddhist, in the CHT region of Bangladesh, where the applicant was from. This finding was primarily based upon country information which indicated that indigenous people in the CHT have had their human rights violated and have been subjected to arbitrary arrest, detention, false charges, communal attacks and killings, mistreatment, property destruction, lack of police protection, destruction of Buddhist temples, land appropriation/eviction, inadequate access to justice and sexual and other violence.
Having found that there was a real risk of serious and significant harm, the Tribunal noted that ss 5J(1)(c) and 36(2B)(a) of the Act operate to exclude protection obligations if the harm did not relate to all areas of the receiving country and if it was satisfied that it would be reasonable for the applicant to relocate to another area of the country where there would not be a real risk that they will suffer significant harm. The Tribunal’s consideration of relocation is as follows:
171. Sources I have consulted indicate that there has been a significant degree of migration of indigenous peoples from the CHT, including over 10,000 Chakmas, to other parts of Bangladesh particularly to urban areas such as Chittagong city and Dhaka. Further, Chittagong city is home to 40,000 Buddhists and Chittagong city and Dhaka have Buddhist monasteries and temples. Push factors for the migration of indigenous peoples from the CHT included displacement caused by land appropriation and communal violence while the primary pull factors are work and study. The harm indigenous peoples typically face in the CHT relates to land disputes, land grabbing and land appropriation, issues which would not arise in urban areas. The information indicates that while indigenous peoples who migrate to urban areas, including Chakmas, are likely to face some low level racial and religious discrimination and harassment, typically from non-state parties, they are able to work, study and access basic services. The information does not indicate as the applicant claimed that indigenous peoples are denied the capacity to earn a livelihood or subsist outside the CHT. The information does not indicate that indigenous peoples in urban areas face the same risk of violence or degree of harm they face from state and non-state agents in the CHT.
172. The information does indicate that there have been instances of violence against Buddhists, temples and monks outside the CHT and small-scale attacks targeting minority religious groups by Islamic militant groups. However, the information does not indicate that such incidents occur so frequently outside the CHT as to give rise to a real chance of the applicant being harmed in such incidents in an urban area outside the CHT. Instead the information indicates that people of different religions generally live peacefully together and Buddhists are generally able to practice their religion.
173. At the hearing I put to the applicant that the information before me indicated he did not face a real chance of serious harm or significant harm outside the CHT and that it seemed reasonable for him to relocate outside the CHT. The applicant agreed that Chakma people live in other parts of Bangladesh but he said not every Chakma was against the government and incidents occurred outside the CHT. He indicated he would be identifiable and would come to attention. He suggested there was a lack of reporting. He made vague references to government policy and forced religious conversion. I accept that the applicant would be physically identifiable as a Chakma and hence presumed to be Buddhist. I have accepted that he is not a supporter of the government. However, I have not accepted that he is or would be a political activist or engage in public activity in support of indigenous/Buddhist peoples or their rights if he returns to Bangladesh. I do not accept there is a real chance that he will come to the adverse attention because of political opinions he will not express publicly. The information does not indicate that a Chakma living in an urban area outside the CHT who merely holds opinions which are supportive of indigenous peoples and their rights and not supportive of the government person faces a real chance of serious harm or significant harm. The information indicates that the risk of face serious harm or significant harm the applicant would face as a Buddhist outside CHT in the form of communal violence or attacks by Islamist militants from non-state agents is remote. The information does not indicate there the discrimination and harassment the applicant would face as an ordinary Chakma and Buddhist in an urban area outside the CHT which would rise to the level of serious harm or amount to significant harm as defined in s.36(2A). The information does not indicate there is a real chance that the applicant would be viewed as a separatist or secessionist or charged with sedition due to his his past or future conduct. Nor does the information indicate there is a real chance that the applicant would be subjected to serious harm or significant harm because he is a member of a particular social group connected to his family or the Jumma diaspora, or because he will be imputed with political opinions cited in the Pre-Hearing Submission.
174. I find on the basis of the findings I have made and the totality of the information in the sources I have consulted that there is not a real chance that the applicant would be subjected to harm from state or non-state agents in an urban area outside the CHT, individually or cumulatively, due to his Chakma/Jumma/non-Bengali ethnicity, Buddhist religion, actual or imputed political opinion and/or membership of any particular social group which would rise to the level of serious harm or amount to significant harm as defined in s.36(2A).
175. Further, I find that it would be reasonable for the applicant to relocate from the CHT to an urban area outside the CHT where he would not face a real chance of significant harm. The applicant demonstrated at the hearing that he is able to speak Bengali, he is well-educated and has been able to live independently of his family his whole adult life, and has been able to find the means to support himself in three countries for several years. This indicates that the applicant would have the ability to adapt and live in Bangladesh outside the CHT. I note that after the hearing the migration agent provided two articles about the challenges which workers in Dhaka especially in the informal sector were likely to face due to the Covid-19 virus. There is no evidence before me that the applicant faces a real risk of serious harm or significant harm due to the virus or would be unable to take measures to protect himself or obtain medical services he may need so as to make it unreasonable for him to relocate. The virus may be a factor to consider in terms of where he relocates but does not make relocation outside the CHT unreasonable.
Being satisfied that the applicant could reasonably relocate to an area where he would not be subject to harm, the Tribunal found that he was not a person in respect of whom Australia had protection obligations. The Tribunal affirmed the decision under review.
APPLICATION TO THIS COURT
The originating application for judicial review was filed on 31 August 2020. The applicant also filed an affidavit annexing the Tribunal’s decision. It was not necessary for the Court to take this affidavit into evidence as the Tribunal’s decision was included in the Court Book filed by the Minister which was tendered at the hearing (as exhibit CB) and is in evidence.
On 23 December 2020, the applicant filed the amending application which advanced four grounds of review. In written submissions, Counsel for the applicant informed the Court that he was not pressing grounds three and four.
On 24 February 2025 the applicant filed written submissions and on 5 March 2025 the Minister filed written submissions.
The matter was listed for final hearing on 11 March 2025 at the Parramatta Registry of the Court and a notice of listing was sent to the parties on 15 January 2025.
At the hearing on 11 March 2025 the applicant was represented by Mr Vertoudakis of Counsel on a pro bono basis. The Minister was represented by Ms Francois of Counsel.
The Minister tendered into evidence the DFAT country information report (DFAT Report) on Bangladesh, dated 22 August 2019, which was marked Exhibit E1.
The oral submissions of the parties further developed their written submissions.
GROUNDS OF REVIEW
The amended application for judicial review advances the following grounds (without alteration and not including grounds three and four, which were not pressed):
1. The Second Respondent (the Tribunal) constructively failed to exercise its jurisdiction by failing to give proper and adequate consideration to whether it was reasonable in the circumstances of the Applicant to relocate pursuant to s 36(2)-(2B) of the Migration Act 1958 (Cth) (the Act), including because the Tribunal failed to consider reasons that were given by the Applicant and/or arising from the material before the Tribunal that affected the reasonableness of relocation and the risk of significant harm should it be attempted.
Particulars
a. The Tribunal failed to consider the issue of the Applicant needing to obtain digital national identification that was expressly raised on the materials before it.
b. The Tribunal failed to consider whether it would be reasonable for the Applicant to relocate in light of his actual circumstances, including having to return to a particular area to obtain digital national identification.
c. The Tribunal also failed to consider the Applicant's claim that it would be necessary to return to an area of the country where he would be at a real risk of significant harm (as found by the Tribunal at [169] of its reasons) and give adequate consideration as to whether the practical necessity of returning to that area of the country would result in a real risk of significant harm within the meaning of s 36 of the Act.
d. The Tribunal also failed to adequately consider the additional express objections to reasonable relocation raised by the Applicant including his physical features and accent.
2. The Tribunal committed jurisdictional error by failing to give genuine and proper consideration to, and/or make a finding, on a claim or an integer of a claim that arose either expressly or clearly on the information and evidence before it.
Particulars
a. The Applicant repeats the particulars expressed in relation to ground 1 above.
The Applicant’s Submissions
The applicant’s submissions are in respect of the two grounds advanced, which he contends concerns the same failure by the Tribunal.
The applicant relied upon SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403, wherein Katzmann J stated at [53] and [55]–[56]:
53. The material before the Tribunal upon which the decision is to be made means all the material provided by the applicant and his or her agents (both orally and in writing), as well as information it acquires for itself under s 424 of the Act. The applicant is entitled to present written arguments relating to the issues arising in relation to the decision under review: s 423. The Tribunal, it may be inferred, is bound to take those arguments into account. It is also bound to consider any evidence the applicant may give or arguments he or she may present at a hearing to which the applicant is invited under s 425 of the Act: SZSSC v Minister for Immigration and Border Protection [2014] FCA 863, (2014) 142 ALD 150; 317 ALR 365at [56]. These obligations, though not express, are implied.
….
55. If the Tribunal does not set out a finding on a question of fact, that will indicate that it made no finding on that matter: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5] (Gleeson CJ). In such a case the Court may infer that the Tribunal did not regard the question as material, for the Tribunal is only required to set out its findings on the questions of fact it considers material to the decision: Yusuf at [68] (McHugh, Gummow and Hayne JJ), [37] (Gaudron J), [216]–[217] (Callinan J). The Tribunal’s identification of what it considers to be the material questions of fact may disclose that it had regard to irrelevant matters or that it failed to take into account a relevant matter. A failure to take into account a relevant matter may reveal a constructive failure by the Tribunal to exercise its jurisdiction for it may indicate in the particular circumstances that the Tribunal misunderstood its duty or applied itself to the wrong question and therefore failed to conduct the review required by s 414 of the Act. See Yusuf at [41]–[42] (Gaudron J), [69] (McHugh, Gummow and Hayne JJ). If the Tribunal fails to take into account material the Act requires it to take into account, it “exceeds its authority or powers” and the decision is made without jurisdiction: Yusuf at [83] (McHugh, Gummow and Hayne JJ). It may also demonstrate that the Tribunal’s understanding of the law was erroneous: Ibid at [84].
56. If the Tribunal fails to consider submissions, evidence and material advanced by an applicant, the Tribunal will have failed to perform the task required of it by the Act. Where it considers some submissions and not others and/or some evidence or material and not others, it may (depending on the nature of these matters) have failed to complete the task. A failure to perform or complete the statutory task, whether actual or constructive, is a jurisdictional error.
The applicant contends that the failure arose because the Tribunal did not properly consider the contents of a statutory declaration (the Declaration) that was provided after the hearing which addressed, amongst other things, whether it would be reasonable to relocate.
The applicant submitted that ‘the Tribunal extracted all the substantive paragraphs of the Declaration at [81] of its reasons, except, curiously, for paragraph 6 which contained the National ID Argument.’ Paragraph 6 of the Declaration stated:
In relation to internal relocation, I do not have digital Bangladesh National ID which is a required document now in Bangladesh including opening a bank account. If I returned to Bangladesh, I have to take steps to obtain digital National ID. In order to obtain my national ID, I have to travel to my home area in order to verify my identity and to confirm my residence. If I travel to my home area I would [illegible]. Therefore, internal relocation is not a reasonable option in my case.
The applicant submitted that in addition to quoting from the Declaration at [81] the Tribunal also appears to have taken it into account (save for [6]) at [83], [104]-[105] and [148] of its reasons.
The applicant submitted that not only did the Tribunal not quote paragraph 6 of the Declaration, it failed to consider it at all in its reasons for the decision. The applicant submitted that the content of the paragraph was directly relevant to the issue of relocation because the applicant said he would be ‘required to return to the CHT to obtain a digital National ID, at least for a period sufficient for the authorities to verify his identity and for him to confirm his residence there’ (emphasis in original).
The applicant submitted that this was significant because the Tribunal had already made a finding that the applicant would be at risk of serious and significant harm in the CHT if he were to return there.
Accordingly, the applicant submitted, the Tribunal fell into error by failing to take this into account and the error was material (and thus jurisdictional) because had it done so the Tribunal could have come to a different conclusion about whether it was reasonable to relocate: LPDT v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12 (LPDT).
The Minister’s Submissions
The Minister submitted that the applicant’s claim about not having a National ID card and needing to travel to the CHT to obtain one was incorrect. It was submitted that the material before the Tribunal clearly indicated that the applicant already had a National ID card: CB 43. The Minister contended that the Tribunal’s finding at [128] was sufficient to entirely dispose of that claim. At [128] the Tribunal had stated:
In light of the applicant’s lack of credibility and the evidence of document fraud I do not accept that the documents submitted from Bangladesh are genuine with the exception of his passport and National ID card. The personal details in the passport are consistent with the name, date of birth, place of birth, village, and nationality the applicant had provided throughout the application and review process. The passport shows that the applicant has used the passport to travel to numerous countries between 2012 and 2017. That indicates that no anomalies with the passport have been detected by those countries. Further, the Personal No. in the passport corresponds to the Bangladesh National ID card number. I thus accept that Bangladesh passport and ID Card are genuine.
The Minister relied upon the principles in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (WAEE), where the Full Court (French, Sackville and Hely JJ) explained that:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. 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.
The Minister also relied upon Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [70] and SZSXH v Minister for Immigration and Border Protection [2014] FCA 914 (SZSXH) at [16]. In SZGUR the principle that an inference that a tribunal had failed to do some act in the course of its review should not be drawn lightly related to an alleged failure to consider the applicant’s agent’s request that the tribunal exercise its discretion to arrange a medical examination of the applicant. In SZSXH the Federal Court found that no inference could be drawn that the Tribunal overlooked the relevant document and that even if it had overlooked it, it was not a jurisdictional error because the document was not relevant and so insignificant that there was no error in the Tribunal failing to consider it. These cases are distinguishable from the facts of this case.
By reference to the above authorities, the Minister submitted that the Tribunal’s reasons were comprehensive, that the Tribunal had identified the issue of the National ID in its decision and that an inference that the issue had not been considered by the Tribunal ought not be drawn.
The Minister further submitted that the Tribunal, having read all the material before it, made a finding with respect to the National ID card. It was contended that the fact this finding does not appear in the section of the Tribunal’s reasons which deals with relocation was not relevant to the question of whether the Tribunal considered this evidence in the context of the relocation issue. In support of this contention, the Minister relied upon the comments in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 wherein Gleeson CJ said at [14]:
Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.
The Minister contended that there was no failure on the part of the Tribunal to consider the applicant’s evidence about his digital National ID given the factual basis for it had been rejected by the Tribunal earlier in its reasons.
In oral submissions, the Minister contended that the Tribunal did have regard to the applicant’s evidence about his digital National ID and deliberately excluded that information when quoting from the Declaration because it was irrelevant to its decision or had been subsumed in its finding at [128] that his National ID card was genuine.
The Court queried whether such an inference could reasonably be drawn in circumstances where the applicant’s claim was about having to obtain a ‘digital’ National ID if he returned to Bangladesh and not just about having a National ID card; the distinction being one that appears to arise on the country information.
In addressing this matter, the Minister referred to the country information in the relevant DFAT Report which stated:
National Identity Cards (NICs)
5.32 Under the National Identity Registration Act (2010), all citizens over the age of 18 must register with the BEC to obtain a National Identity Card (NIC). NICs are valid for 15 years and are required to complete a wide range of transactions, including voting, banking, obtaining a passport, and purchasing property or other assets. To obtain a NIC, applicants must provide their electoral roll serial number, personal particulars (parents’ names, date of birth and residential address), thumbprints, photograph, and signature. The BEC crosschecks these details against applicants’ electoral roll details. Applicants can provide proof of residence using a range of official documents, including drivers’ licences and utility bills. Cardholders are not required to update their residential addresses should they change residence.
5.33 In October 2016, the BEC announced the introduction of the ‘smart NIC’. The smart NIC is a machine-readable card containing 32 types of basic information about a citizen embedded in its microchip. It contains 25 security features including photographs and electronic chips. The purpose of the smart NIC was to prevent fraud, which was previously endemic. The BEC is currently in the process of distributing smart NICS nationwide. This process remains ongoing, and many older National Identity Cards without security features are reportedly still in use.
The Minister contended that the Tribunal was aware that the applicant had obtained a National ID card, which the country information indicated would be valid for 15 years. It was submitted that the National ID card allowed the applicant to do banking, voting, obtain a passport (which he had done), and purchase property and other assets. It was submitted that to obtain that document he needed to provide his electoral serial number and personal particulars which are cross-checked and, contrary to the applicant’s claim, he would not have to go back to his local area to change his address.
The Minister contended that the applicant’s National ID card permitted him to complete a wide range of transactions and, consistent with the Tribunal’s findings about the applicant’s credibility, it rejected that he needed a digital ID card because, based on the country information, he could open a bank account and complete the other transactions referred to. It was submitted that what the applicant had said about having to return to his home area to confirm his residence was contrary to the country information.
The Minister submitted that, by contrast, the country information stated that to obtain a passport the applicant would have to provide biometric data to a passport office and a local police officer must verify his individual identity. It was submitted that the applicant’s claim was not in relation to a passport but to a National ID card, which he already had.
In relying upon WAEE at [47], the Minister contended that the Tribunal found that the applicant had a genuine National ID card, it deliberately omitted paragraph 6 of the Declaration from its decision because it was irrelevant to its decision and the Tribunal did not need to deal with it. It was contended that, it can be inferred from this deliberate omission, that the Tribunal had considered it but found it not to be relevant or worthy of including it in its reasons which was a decision open to it in the context of its other findings.
The Minister referred to [83], [84] and [85] of the Tribunal’s reasons, wherein the Tribunal undertook an assessment of the applicant’s credibility and rejected what he had said. It was contended that the Tribunal had made a general finding at [109] that the applicant was not a witness of credit and that his corroborative evidence (except for his National ID card and passport) had been rejected.
The Minister contended that the issue of relocation was before the delegate and was also raised with the applicant at the hearing. It was submitted that the Tribunal put to the applicant at the hearing that he could live safely outside the CHT and that the applicant was given an opportunity to respond. The Minister submitted that the Tribunal rejected the applicant’s claims having regard to his credibility.
It was submitted that the issue of the digital National ID was not raised by the applicant until after the second hearing, that the country information did not independently corroborate what the applicant had said and that the applicant was not a witness of credit. It was also contended that it was not necessary for the Tribunal to deal with the issue of the digital National ID because it was subsumed by the Tribunal’s findings that the applicant had a National ID card.
In summary, the Minister submits that it can be inferred that the Tribunal did consider paragraph 6 of the Declaration by its deliberate omission and that even if it had not considered it, it did not need to due to the findings it had already made.
Consideration
By Grounds one and two, the applicant contends that the Tribunal failed to give genuine and proper consideration and/or make findings on a claim (or integer of a claim), which was expressly raised by the applicant in the Declaration concerning the reasonableness of relocation.
The issue of relocation is relevant when considering whether an applicant is a person in respect of whom Australia has protection obligations either because the person is a ‘refugee’ as provided for in s 36(2)(a) or they satisfy the complementary protection criterion in s 36(2)(aa).
To satisfy the definition of ‘refugee’ the person must have a well-founded fear of persecution for reason of race, religion, nationality, membership of a particular social group or political opinion; that there is a real chance that, if they returned to the receiving country, they would be persecuted for one or more of those reasons; and the real chance of persecution relates to ‘all areas of a receiving country’: s 5J(1) of the Act.
To satisfy the complementary protection criterion, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm: s 36(2)(aa). However, there is taken not to be a real risk that the person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that they will suffer significant harm: s 36(2B)(a).
The Tribunal found at [169] that the applicant, whom it accepted was a member of an indigenous Buddhist community in the CHT, would be at risk (amounting to a real chance) of serious harm and/or significant harm in the CHT for reason of race or religion.
Having made this finding, the Tribunal went on to consider at [170] – [175] whether the applicant faced a risk of harm outside CHT and whether it was reasonable to relocate.
At [174] the Tribunal, having regard to its earlier findings in respect of the applicant’s claims and evidence, considered the country information before it and found that there was not a real chance that he would be subjected to harm in an urban area outside the CHT that would rise to the level of serious harm or amount to significant harm.
At [175] the Tribunal then considered whether it would be reasonable to relocate from the CHT to an urban area (outside the CHT). The applicant takes issue with the Tribunal’s consideration of the reasonableness of relocation on the basis that the Tribunal had failed to have regard to one of the reasons he gave for why it would not be reasonable for him to relocate.
In its decision at footnote 29, the Tribunal referred to SZATV v Minister of Immigration and Citizenship [2007] HCA 40 (SZATV) and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41. These two appeals were heard by the High Court at the same time and are relevant when considering the issue of internal relocation and the reasonableness thereof. In SZATV at [24] Gummow, Hayne and Crennan JJ held:
What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
In considering the issue of internal relocation (and an applicant’s objection to relocation) the Tribunal was required not only to determine objectively the issue of relocation, but to undertake an inquiry ‘circumscribed by the case made by the [applicant] with respect to the relocation issue’: MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352(MZYXP) at [61].
In MZZQV v Minister for Immigration and Border Protection [2015] FCA 533 at [68], Barker J observed that ‘all authorities cited to this point … are to the effect that a range of issues may become relevant to the question of whether internal relocation is reasonable, depending on the circumstances and the issues raised by an applicant for refugee status, and, when they do, must be carefully regarded by the decisionmaker’.
Further, in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [58], Mortimer J (as her Honour then was) stated:
. . . the “framework” set by an applicant may be an important factor. . . it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.
The obligation, when conducting an inquiry into whether internal relocation is reasonable, is therefore not just confined to the ‘framework’ set (the matters raised) by an applicant’s submissions. This is relevant in the present matter because there was country information before the Tribunal (in the DFAT Report) about the introduction and distribution of a ‘smart’ machine readable National ID by the Bangladesh Electoral Commission (BEC).
When considering whether it was reasonable (in the sense of practicable) for the applicant to relocate to an area outside the CHT, the Tribunal was required to assess the individual circumstances of the applicant. As part of that assessment (or inquiry), the Tribunal was required to consider any specific objections that had been raised by the applicant, though it was not confined by the matters raised, and could also draw upon other information available to it when determining whether internal relocation was reasonable.
It is in the context of the above, that the Court has considered whether, as contended by the applicant, the Tribunal constructively failed to exercise its jurisdiction by its failure to consider a claim (or objection) raised by the applicant as to why it was not reasonable for him to relocate.
As submitted by the applicant, jurisdictional error can arise from a failure to consider a claim. The Tribunal has a statutory obligation to consider all the claims and integers of a claim made by an applicant: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42]. This obligation only arises where the claim is either: (a) the subject of a clearly articulated argument, relying on established facts; or (b) clearly emerges from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 [55] and [68] [63].
It is well established that a decision maker is required to ‘read, identify, understand and evaluate the representations.’ The requisite level of engagement with those representations will vary ‘according to the length, clarity and degree of relevance.’ Plaintiff M1/2021 v Minister for Home Affairs [2021] HCA 17 at [24] and [25].
A conclusion that the decision-maker ‘has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof’: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [48].
An inference of a failure to consider an issue may be drawn from a failure to deal expressly with that issue, however, as cautioned in WAEE per French, Sackville and Hely JJ at [47], that is an inference not too readily be drawn, particularly where the reasons for the decision are otherwise comprehensive, and the issue had at least been identified at some point. Their Honours also stated that it may be 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.
Their Honours went on to state that, ‘[w]here 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’: WAEE at [47].
In considering whether the Tribunal failed to properly consider (and address) a claim, it will be necessary to review the reasons for the decision as a whole, keeping in mind that they must be read fairly and not in an unduly critical manner: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [24] per Kirby J.
It is not in dispute that the Tribunal, when considering the issue of relocation at [170] – [175] of its reasons, did not refer to (or address) the claim made by the applicant at paragraph 6 of the Declaration in which he stated:
6. In relation to internal relocation, I do not have digital Bangladesh National ID which is a required document now in Bangladesh including opening a bank account. If I returned to Bangladesh, I have to take steps to obtain digital National ID. In order to obtain my national ID, I have to travel to my home area in order to verify my identity and to confirm my residence. If I travel to my home area I would [illegible]. Therefore, internal relocation is not a reasonable option in my case.
It is also not in dispute that the Tribunal indicated in its decision at [81] under the hearing ‘post-hearing evidence’ that it had received the Declaration and that it had included extracts of the substantive paragraphs of the Declaration except for paragraph 6.
The Minister’s contention is that the Tribunal did have regard to the applicant’s evidence about his National ID card at [31] where it stated it had received a certified copy of that document and at [128] where it had found that the applicant’s Bangladesh National ID card and Bangladesh passport, which had a corresponding personal number, were genuine. It is also the Minister’s contention that it can be inferred that the Tribunal had considered paragraph 6 of the Declaration (about the digital National ID) because it deliberately omitted that information as it was irrelevant to its decision and/or was subsumed in its finding (of greater generality) about the applicant being in possession of genuine Bangladesh National ID card.
For reasons that follow, the Court is not persuaded by the Minister’s contentions.
It is true that the applicant did not raise the issue of the digital National ID until after the adjourned hearing, however, to be fair, this likely occurred in response to the Tribunal putting the applicant on notice at the hearing that the country information before it indicated he could live safely outside the CHT. The fact that the applicant did not raise his objection to relocation when given an opportunity to do so at the hearing does not (of itself) undermine the credibility of that claim.
It is evident from paragraph 6 of the Declaration that the applicant raised the issue about having to obtain a digital National ID (for which he claimed he would have to return to his home area of the CHT to verify his identity and confirm his residence) expressly as an objection to the Tribunal’s suggestion that he could safely relocate to an urban area outside the CHT. In the circumstances, and having regard to the Tribunal’s finding that the applicant would be at risk of serious or significant harm in the CHT, the Tribunal was required not only to determine objectively the issue of relocation, but to undertake an inquiry ‘circumscribed by the case made by the [applicant] with respect to the relocation issue’ and ‘carefully’ regard the matters raised by him when determining whether relocation was reasonable: MZYXP at [61]; MZZQV at [68].
Whilst the Tribunal’s decision was comprehensive, the Court is unable to accept that this provides a basis for concluding that it had identified, understood and evaluated the matters raised by the applicant about why (and how) he had to obtain a digital National ID if he returned to Bangladesh. The mere acknowledgement at [31] that the Tribunal had before it a certified copy of the applicant’s National ID card and the Tribunal’s finding at [128] that it was a genuine document was not sufficient to dispose of the actual representations made by the applicant about having to obtain a ‘digital’ National ID. Nor can it be reasonably inferred, even on the most generous reading of the decision as a whole, that the Tribunal identified and/or understood the representations made by the applicant, but made no mention of it (or evaluated it) because it was either irrelevant to its decision or was subsumed within a general finding about the National ID card (which was not a digital National ID) being genuine.
As to the Minister’s contention that the Tribunal had rejected the applicant’s claims about relocation because of its findings on the applicant’s credibility and its rejection of his corroborative evidence, the Court is unable to accept this. First, the applicant’s claim about the digital National ID was not corroborative evidence of the kind that could simply be discarded (or rejected without explanation) because the applicant’s credibility had been so weakened to the extent that ‘the well had been poisoned beyond redemption’: Minister for Immigration and Multicultural Affairs, Re Ex parte Applicant S20/2002;Appellant S106/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 30 at [49]. While the Tribunal had found that the applicant was not a credible witness and rejected most of his claims (and the related corroborative evidence) on credibility grounds, it nevertheless found that the applicant would face serious or significant harm in his home area of the CHT. Having made that finding, it was required to go on and consider the issue of relocation which, in part, included considering whether it was reasonable, in the sense of ‘practicable’, for the applicant to relocate having regard to, among other things, any matters raised by the applicant. The Tribunal did not expressly ‘deal with’ the applicant’s claim that he would have to obtain a digital National ID, for which he said he would have to return to his home area of the CHT, which had been expressly raised as an objection to relocation.
Second, as submitted by the applicant, the Tribunal at [105] and [106] of its reasons had expressly referred to other matters raised in the Declaration, including the applicant’s claims about feeling he had no option but to proceed with a Bengali interpreter and access to mental health treatments as an indigenous person in Bangladesh. The Tribunal’s reasons demonstrate that it identified, considered and rejected those matters on the basis of its earlier finding that the applicant was not a credible witness. The fact that the Tribunal made no reference to paragraph 6 of the Declaration or deal with it in the same way it had dealt with other matters raised in that Declaration (to reject them because of the applicant’s lack of credibility), suggests, as contended by the applicant, that the Tribunal had simply overlooked it and thus failed to consider it. For these reasons, the Court does not accept the Minister’s submission that it should be inferred that the Tribunal did consider the claim because it deliberately omitted it.
The Court observes that the Declaration which contained the digital National ID claim was provided to the Tribunal on 29 April 2019. The Tribunal’s decision was made 16 months later, on 10 August 2020. It may be that the Tribunal had intended to deal with the digital National ID issue separately later in its decision (hence its decision to deliberately omit paragraph 6) but, due to the passage of time and the relevant passage not being included in the summary of evidence, inadvertently overlooked it. This is mere speculation on the Court’s part. In any case, the digital National ID issue was, in the Court’s view, a clearly articulated argument raised by the applicant which required express consideration by the Tribunal. It is not reasonably open on the material before the Court to infer that the issue was either irrelevant to the Tribunal’s decision or that it was subsumed in a finding of greater generality.
As to the Minister’s contention that the independent country information did not support the applicant’s claim that he needed a digital National ID (or that he had to travel to his home area to confirm his identity and residence) and that the country information supported the Tribunal’s rejection of his claim because the applicant could complete a wide range of transactions with his National ID card, the Court is not persuaded by this.
First, whilst the country information reported that older National ID cards (which do not have security features) are still in use and could be used for a wide range of transactions, the country information also indicated that the BEC had announced the introduction of the ‘smart’ National ID which contained various security features and was in the process of distributing them nationwide. This appears to provide some support for the applicant’s claim that he may require a digital National ID if he returned to Bangladesh, though the country information is not of much assistance in that regard. Further, the fact that the older National ID cards were still in use (and could be used to complete a wide range of transactions) is not a sound basis upon which the Court can infer that the Tribunal had rejected the applicant’s claim that he needed a digital National ID such that it was irrelevant to its reasons on the relocation issue.
Second, as submitted by the applicant, it was not clear from the country information what the process of distribution of the ‘smart’ National ID involved and whether or not the applicant would be required to return to his place of residence (in the CHT) to confirm his identity and residence so as obtain one. The applicant also submitted that it was not entirely clear from the statement ‘card holders are not required to update their residential address should they change residence’ whether this was the case because it is assumed that the person will have to go back to their place of registration to get their card.
It is not for this Court to ascertain whether or not the applicant would have been required to obtain a ‘smart’ (digital) National ID if he returned to Bangladesh and whether he would have had to return to his home area to verify his identity and residence. Nor is it for this Court to assess the country information so as to ascertain whether or not the applicant’s National ID card was sufficient for the purposes of relocation to an area outside the CHT. It was for the Tribunal to evaluate the merits of the applicant’s objection to relocation (in paragraph 6 of the Declaration), including assessing how the country information interacted with the applicant’s objection to relocation, when considering whether or not it was reasonable for him to relocate.
The Tribunal did not identify and evaluate the objection expressly made by the applicant in paragraph 6 of the Declaration as to why it was not reasonable for him to relocate. That was an error on its part.
Materiality
For an error to be jurisdictional it must also be material. The threshold for materiality is relatively undemanding. The question that arises is whether the decision that was in fact made (noting that the materiality inquiry is wholly backwards looking) could realistically have been different had the error not been made. A realistic possibility of a different outcome is one that is not fanciful or improbable: LPDT at [10] and [14].
In the present case, the Tribunal found that there was a risk the applicant would face serious or significant harm in his home area of the CHT. When considering the issue of relocation, the Tribunal failed to consider the applicant’s objection to relocation that, if he returned to Bangladesh, he would need to obtain a digital National ID and that this would require him to travel back to his home area (the CHT) to verify his identity and confirm his residence. If the Tribunal had considered this information, it was possible, not fanciful or improbable, that it ‘could’ have come to a different conclusion about whether it was reasonable (in the sense of practicable) for the applicant to relocate outside the CHT. The Court accordingly finds that the error was material and therefore jurisdictional.
CONCLUSION
As the Tribunal’s decision was affected by jurisdictional error, it is appropriate for the Court to issue writs of certiorari and mandamus in this matter.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 28 March 2025
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