ENO18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 753
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ENO18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 753
File number(s): SYG 2461 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 23 May 2025 Catchwords: MIGRATION – Application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming decision not to grant the applicant a Safe Haven Enterprise Visa – whether the Authority failed to properly assess the applicant’s claims of harm – whether the Authority otherwise properly considered the applicant’s claims and country information that was relevant to the applicant’s claims – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5AAA, 5H, 36(2)(a), 36(2)(aa), 36(2A), 473CB, 473DC, 473GB(3), 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Sch 2, Pt 2
Cases cited: X v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 319 Division: General Number of paragraphs: 45 Date of hearing: 14 May 2025 Place: Sydney The Applicant: Appeared in person Solicitor for the First Respondent: Mr C Wang, Clayton Utz The Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2461 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ENO18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount 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
INTRODUCTION
The applicant, a citizen of the People’s Republic of Bangladesh, applies for remedies under s 476 of the Migration Act 1958 (Cth) (Migration Act) in relation to a decision made by the second respondent (Authority) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Subclass 790 Safe Haven Enterprise Visa (SHEV).
CLAIMS FOR PROTECTION
In his application for a SHEV the applicant provided two statements, one dated 11 May 2016,[1] and the other dated 20 May 2016.[2] The statement dated 20 May 2016 is substantially the same as the statement dated 11 May 2016, but, given it was made later than the statement dated 11 May 2016, it would be convenient to set out the claims the applicant made in the statement dated 20 May 2016. Those claims are as follows:
[1] CB73-77
[2] CB68-72
(a)The applicant was born in a village located in the Comilla District of Bangladesh in 1989. His mother, four brothers, and two sisters still reside in Bangladesh.
(b)The applicant is Muslim, he is not married, and he does not have any children.
(c)The applicant completed year 10 in 2004 and then started a business degree at his local college in 2005. The applicant was unable to finish his degree because his family was unable to pay for his final exam.
(d)From around 2006 the applicant worked in the field with his father until 2010, when the applicant opened up a cosmetics shop and worked as a shop assistant.[3]
[3] CB73, at [7]
(e)In 2009 the applicant’s father died from a stroke. The applicant’s mother found it very difficult to provide food for the family.
(f)In approximately 2011 a small group of men from the Awami League came into the applicant’s cosmetics shop. One of the men said: “You have to join us” and “We have to make a large group in support of the Awami League, we need to march again. We need a flag”. The applicant responded: “I don’t want to join any party. I don’t want to go to any meetings”. The applicant supported the Bangladesh National Party (BNP), although he is not very political. The applicant did not want to join the Awami League. He wanted to make a livelihood, and he did not want to be going to meetings or be involved intimately with any party. One of the men also said words to the effect of: “You can’t live in this neighbourhood if you don’t support us … We’ll ruin you”.
(g)On a number of further occasions over the next few months, men came to the applicant’s shop and menaced him. Each time the applicant said: “I don’t want to join any party. I don’t want to go to any meeting”.
(h)The applicant heard rumours from other men in the village that members of the Awami League had killed people who refused to support them. The applicant became very afraid.
(i)Sometime in about 2011 or 2012, around seven men came to the applicant’s cosmetic shop where the applicant was working. One of the men said: “If you don’t support us, you need to donate 300,000 dacha to the Awami League so you can remain safe and continue to operate your shop”. The applicant responded: “I have no means to pay this”. The men proceeded to hit the applicant and destroy his shop. The men grabbed the applicant by his collar and shirt, and began hitting him. They also began to break the shop’s display cases and windows. The applicant was hit with sticks about his body, with a steel rod on his left thigh, and was sliced on his calves and on his inner arms. The applicant was also hit on the head. He became unconscious.
(j)The applicant was taken to the local clinic to get treated; he remained in this clinic for about four days. The applicant’s mother and two brothers visited him and informed him that his shop was destroyed and stock was looted. The applicant confirmed that was the case after he left the clinic.
(k)In less than a week after the applicant went home to recuperate, the men from the Awami Party came to his home. One of the men said: “If you tell anybody about this, we’ll kill you”. On their way out they also threatened the applicant and said “Wherever you are, we will find you and kill you.” The applicant was afraid to report this to the police or any authority. The applicant also knew the police are affiliated with the Awami League , and the applicant was very worried about what was going to happen.
(l)The applicant was afraid to be at home. He stayed with friends for about two to three months in Dhaka, where he continued to be afraid after he realised that there are even more members of the Awami League in Dhaka.
(m)After hearing that Australia welcomed refugees, the applicant decided to risk travelling there.
(n)When in detention in Australia the applicant received a phone call from his mother who said: “Men have been to the house asking where you are. I said I don’t know. Your brother and sisters were there too. One of the men hit your brother and sliced him across the chin with a machete. He now has a scar on his chin. He ended up in hospital”. On the same occasion the applicant spoke to his brother who said similar words explaining the incident.
(o)If he is returned to Bangladesh, the applicant is afraid he will be subjected to serious harm, including “further menacing, beatings and possible death”. The applicant is also afraid that he would not be protected by anyone, including the authorities, because they are associated with the Awami League.
(p)The applicant “did not give all these details to the Immigration officials when [he] arrived in Australia” because he “did not want the stigma of being associated with this type of violence”. The applicant’s family is poor, but honest, and does not go looking for trouble. The applicant “just told Immigration that [his] family is poor”.
BEFORE THE DELEGATE
By letter dated 5 February 2018 the delegate invited the applicant to attend an interview with the delegate on 19 February 2018.[4]
[4] CB99
Before the interview the applicant, by his legal representative, submitted a letter dated 13 February 2018 in which the applicant claimed that, if returned to Bangladesh, the applicant would face a real risk of significant harm, or a real chance of persecution because of his political opinion, namely, holding and supporting the political ideologies of the BNP.[5] The letter provided many references to incidents of persecution against opposition members in Bangladesh, particularly targeting BNP members, and activists; and country information on continuing human rights violations against BNP members and activists, including local level members.
[5] CB101
The applicant attended an interview with the delegate on 19 February 2018[6] (SHEV interview). The applicant’s statements dated 11 May and 20 May 2016 were read to him. The applicant amended the time for which he said in his statements he said he was at the clinic after he had been attacked. The applicant said he was there for four to five hours, not four to five days. Towards the end of the SHEV interview the applicant added a fresh claim, namely, that, while in Australia, the applicant attended two meeting of the BNP, whose leader is from the applicant’s hometown.[7]
[6] CB99
[7] CB187, [30]
Relevant to the submissions the applicant made at the hearing before me is the delegate’s having informed the applicant that information before the Department of Home Affairs (Department) suggested the applicant may have unsuccessfully applied in Bangladesh for a student visa to come to Australia.[8] The applicant said he had never applied for any form of Australian visa; and, according to the delegate, the applicant was genuinely surprised by the delegate’s questions. After the interview the delegate contacted the applicant’s legal representative and said that the Department would not draw any adverse inferences from the information the delegate put to the applicant during the SHEV interview.[9]
[8] CB150
[9] CB139
On 26 February 2018, after the SHEV interview, the applicant, through his legal representative, provided to the delegate a statement in which he made submissions that included the following:[10]
(a)A reasonable person would form the view that “the case officer came to the [SHEV interview] with a closed mind with a wrong adverse information which would have adversely influenced the delegate of the Minister during the interview”.
(b)It is reasonable to expect the case officer would carefully check adverse information before putting it to a refugee applicant.
(c)Had the applicant come to the interview without an immigration representative, or if the applicant’s advisor did not seek to clarify the issue with the delegate of the case officer, “it is reasonable to assume that the delegate of the Minister would have taken a negative decision based on the above incorrect information by questioning [the applicant’s] credibility”.
(d)The Department’s having provided incorrect and misleading information during the SHEV interview confused the applicant and therefore affected his evidence.
[10] CB139- 141
Also relevant to the submissions the applicant made at the hearing is the applicant’s having claimed during the SHEV interview that, while in detention, he provided his case manager a medical report relating to the applicant’s brother.[11]
[11] CB153. A copy of that document is at CB19
The delegate:[12]
[12] CB147- 158
(a)found the information the delegate put to the applicant suggesting he may have unsuccessfully applied for a student visa was not relevant to the applicant’s case;
(b)did not accept the delegate had a closed mind to refuse the applicant’s application for a SHEV;
(c)accepted as plausible that the applicant and his family are non-active supporters of the BNP in the sense they may vote for that party, but did not accept the applicant could be described as an active supporter or activist of the BNP;
(d)accepted it is plausible that in approximately 2009 the applicant established a cosmetics shop; in early 2012 the Awami League attempted to extort 300,000 taka from the applicant; his stock was stolen, and his shop was vandalised; and the applicant did not report the matter to the police;
(e)did not accept, however, that the applicant was attacked to the extent he required medical treatment; or that the applicant went into hiding;
(f)found that extortion was the prime motivation of the Awami League; the applicant no longer owns the cosmetic shop; and, therefore, did not accept the applicant is a person of interest to the Awami League;
(g)found it plausible that in the middle of 2012 the applicant lived in Dhaka for approximately 6 months during which period the Awami League did not approach the applicant;
(h)did not accept the applicant’s brother was attacked in 2013, or that the Awami League visited the applicant’s house as recently as January 2018; and gave no weight to the document the applicant claimed was a medical report relating to injuries his brother had sustained; and
(i)accepted that the applicant departed Bangladesh illegally and, therefore, on his return, to Bangladesh, he will be considered a failed asylum seeker.
On the basis of these findings, and the delegate’s consideration of country information relating to Bangladesh, the delegate was not satisfied the applicant is a refugee within the meaning of s 5H of the Migration Act; and the delegate was also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Bangladesh, there is a real risk he will suffer significant harm within the meaning of s 36(2A) of the Migration Act. For those reasons, the delegate was not satisfied the applicant met the criteria prescribed by s 36(2)(a) or s 36(2)(aa) of the Migration Act and, therefore, on 28 February 2018, the delegate decided not to grant a SHEV to the applicant.
BEFORE THE AUTHORITY
The delegate’s decision was a “fast track reviewable decision” within the meaning of Part 7AA of the Migration Act as it applied at the time the delegate made her decision; and, for that reason, pursuant to s 473CA of the Migration Act, the decision was referred to the Authority for review in accordance with the provisions of Part 7AA. Part 7AA was repealed on 14 October 2024.[13] For ease of expression in these reasons I will use the present tense when referring to the provisions of the Migration Act that have been repealed but which applied to the applicant at the time of the Authority’s decision.
[13] By item 228 of Schedule 2 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
On 26 March 2018, after the applicant had been notified that the matter had been referred to the Authority, the applicant’s legal representative provided to the Authority a submission the applicant made. The applicant repeated the substance of the matters he claimed in his statement dated 26 February 2018, contending that a reasonably minded person would have concluded that the delegate conducted the SHEV interview with a closed mind; the SHEV interview was not conducted in a fair manner; and that the incorrect information presented to the applicant during the SHEV interview confused the applicant’s evidence and, for that reason, the SHEV interview was not conducted in a fair manner. On the basis of these matters, applicant contended that:
. . . enough compelling reason[s] exist in my case for the IAA to call for an interview because my DOHA [that is, the SHEV interview) is infected with legal error because as pointed out earlier that DOHA has confused me which significantly affected my interview and therefore, any reliance on the DOHA interview would amount to legal error.
THE AUTHORITY’S REASONS
The Authority first identified the information that was before it, noting that, in addition to the material that was provided to it pursuant to s 473CB of the Migration Act, on 26 March 2018 the Authority received the applicant’s submissions to which I have already referred. The Authority considered that the applicant’s statement was not “new information” within the meaning of s 473DC(1) of the Migration Act; and the Authority consequently addressed the applicant’s submission. The Authority set out in detail the matters set out in the applicant’s statement of 26 February 2018 which the applicant previously sent to the delegate and the submissions the Authority received on 26 March 2018. In the course of doing so the Authority said:[14]
In his submission to the IAA, the applicant did not make any new claims nor has he specified what evidence he may wish to provide at an interview that he did not get an opportunity to say before, or what information he may have confused or given incorrectly when speaking with the delegate – the applicant has not pointed out any factual errors in the evidence he gave.
[14] CB182, [9]
After setting out the matters contained in the applicant’s statement of 26 February 2018 and the submissions the Authority received on 26 March 2018, the Authority referred to the applicant’s legal representative having made a “detailed 37 page submission” to the delegate on 13 February 2018. The Authority incorrectly stated that that submission was provided after the SHEV interview. The Authority then concluded as follows: [15]
The applicant has been assisted by a migration agent and Bengali interpreters throughout the process from the time of his arrival interview on 5 April 2013 through to the time he made his post interview submissions to the delegate on 13 and 26 February 2018. I am satisfied the applicant has had ample opportunity to present his claims, including at interview, and to clarify any ambiguities and correct any omissions or errors, and he has been assisted to do so. I am not satisfied that an interview is required.
[15] CB182, [12]
The Authority then set out the applicant’s claims, and made a number of findings. The Authority accepted the following:
(a)the applicant is from the Comilla District, Bangladesh, and is a citizen of Bangladesh;
(b)the applicant is Muslim, and that his mother, four brothers, and two sisters continue to reside in his village;
(c)in around 2009 the applicant’s father died of a stroke, after which the applicant’s mother found it difficult to provide food for the applicant and his siblings;
(d)the applicant supported the BNP;
(e)from mid-2011 to early 2012, the applicant worked in a cosmetic store for six to seven months in his village before coming to Australia;
(f)the applicant and his family are very poor; and
(g)in January 2013 the applicant left Bangladesh by boat, without a passport and valid visa and travelled via Indonesia to arrive in Australia in March 2013.
The Authority, however:
(a)did not accept that in around 2009-2010 the applicant set up his own cosmetic shop;[16]
(b)was satisfied the claimed events involving the destruction of the shop and assault by the Awami League, and the threats to the applicant’s life, did not occur;[17]
(c)was not satisfied the applicant and his family are active BNP supporters;[18]
(d)did not accept the applicant was menaced by the Awami League members to join them and extorted for money; or that he was subsequently severely physically assaulted, knocked unconscious and that someone took him to a clinic where he stayed for four to five hours; or that his shop was destroyed and stock looted; or that he was threatened by the Awami League not to tell anyone; or that his family then continued to be annoyed, threatened, and assaulted by Awami League members;[19]
(e)did not accept Awami League members came to the shop several times over two to three months and menaced the applicant about joining them and attempted to extort money from him so he could remain safe and continue to operate his shop;[20]
(f)did not accept the applicant was severely physically assaulted by Awami League members and knocked unconscious, or that someone took the applicant to a clinic where he stayed for four or five hours;[21] or that subsequent threats were made to the applicant’s life;[22]
(g)was not satisfied that members of the Awami League were interested in harming or killing the applicant for any reason before he left Bangladesh;[23]
(h)was not satisfied that, after the applicant left Bangladesh any members or supporters of the Awami League were interested in killing or harming the applicant for any reason, or harassed, threatened, or assaulted his brother, mother, or applicant’s other siblings because they could not find him;[24] and
(i)although the Authority accepted the applicant attended a couple of meetings, in one of which there was an overseas guest speaker, the Authority was not satisfied the meetings were BNP meetings.[25]
[16] CB184, [16]
[17] CB184, [19]
[18] CB185, [20]
[19] CB185, [21]
[20] CB185, [22]
[21] CB185, [23]
[22] CB186, [24]
[23] CB186, [25]
[24] CB187, [29]
[25] CB187, [30]
Relevant to the submissions the applicant made at the hearing before me is the Authority’s consideration of the applicant’s claims based on harm to his brother. The Authority noted the applicant claimed that while in immigration detention in Australia, he spoke with his mother and brother who told the applicant that men had come to the family’s house asking where the applicant was and, after the applicant’s mother said she did not know, the men hit the applicant’s brother and sliced the applicant’s brother on the chin with a machete, resulting in the applicant’s brother ending up in hospital. The Authority further noted that, while in immigration detention, the applicant gave the Department a copy of his brother’s medical record. [26] After setting out the evidence the applicant gave to the delegate at the SHEV interview, the Authority made the following observations and findings about the document the applicant had provided to the Department:[27]
None of the information the applicant gave relating to his brother while in immigration detention, a total of three pages, is translated into English. One page is a handwritten note with the applicant’s name and boat identification number on it, and it states ‘please give case manager’ in English. It is date stamped 6 June 2013. The second page has written in English at the bottom, ‘proof of court case’, the third page has written in English at the bottom, ‘report from medical doctor for my brother’. While the third page has other words on it like Mr S, 38 years, and a partial date, and what looks to be the words ‘cutting after 7 days’, and could be a medical record, without an English translation it is not possible to read or make much sense of the whole of this document or the other two documents. There is no other written supplementary information to support this evidence. I am not satisfied these three pages corroborate the applicant’s claims, and I do not give them any weight. Furthermore, the applicant has not otherwise mentioned or claimed that there is a court case involving himself or his brother. Based on this untranslated evidence, I am not satisfied there is a court case involving the applicant and/or his brother.
[26] CB186, [27]
[27] CB186, [28]
The Authority then considered whether, on the basis of these findings, the applicant was a “refugee” within the meaning of s 5H of the Migration Act and whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Bangladesh, there is a real risk the applicant will suffer significant harm. The Authority considered these questions by reference to country information, and in particular the information contained in the “Country Information Report Bangladesh” dated 2 February 2018 (DFAT Report) the Department of Foreign Affairs and Trade prepared. The Authority referred to the following information contained in that report:
(a)senior members of opposition parties, particularly the BNP, face a high risk of politically motivated arrest, legal charges, and travel bans;[28]
(b)active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence;[29]
(c)ordinary members of opposition political parties and auxiliary organisations that do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location and timing;
(d)Bangladesh is prone to high levels of politically motivated violence, which regularly manifests itself in violent clashes between supporters of different factions of the same party, supporters of rival parties, and between party supporters and law enforcement agencies, and this violence peaks during periods of heightened political unrest, including during elections, strikes, and blockades;[30] and
(e)enforced and involuntary disappearances occur frequently, and individuals associated with opposition political parties are particularly targeted.[31]
[28] CB188, [34]
[29] CB188, [34]
[30] CB188, [35]
[31] CB188, [36]
The Authority concluded that, given its findings: the Awami League was not interested in the applicant for any reason, either before or after he left Bangladesh; the applicant was not an active supporter of BNP while in Bangladesh, although he voted for the BNP; and the Authority was not satisfied the meetings the applicant attended in Australia were BNP meetings; the Authority found there is not a real chance the applicant, on his return to Bangladesh, would be targeted for harm by Bangladeshi authorities or members or supporters of the Awami League for any real or perceived BNP support, or for any other reason.[32] The Authority was also not satisfied the applicant would be unable to find work in Bangladesh;[33] or that the applicant would face a real chance of any harm on returning to Bangladesh as a failed asylum seeker.[34]
[32] CB189, [37]
[33] CB189, [38]
[34] CB189, [39]
On the basis of these findings, the Authority found the applicant does not meet the requirements of the definition of refugee given in s 5H(1) of the Migration Act and, therefore, does not meet the criteria for the granting of a visa prescribed by s 36(2)(a).[35] The Authority was also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk the applicant will suffer significant harm.
[35] CB189, [41]
PROCEEDING BEFORE THE COURT
In his application the applicant relies on the following grounds of application:
1.The Tribunal failed to assess harm based on my claims.
2.The Tribunal failed to assess the present situation in Bangladesh since I left.
3.The Tribunal made decision without any verification of my genuine documentary evidences [sic] and statement.
The applicant, who is not legally represented, did not file or otherwise provide written submissions. The applicant, however, with the assistance of an interpreter, made oral submission at the hearing. The applicant did so, initially without reference to the grounds of application. The applicant then made submissions in relation to the grounds stated in his application in response to my directing his attention to those grounds.
I will first consider the submissions the applicant made without reference to the grounds of application, after which I will consider each of the grounds of application.
APPLICANT’S SUBMISSIONS MADE WITHOUT REFERENCE TO GROUNDS OF APPLICATION
The applicant made the following submissions:
(a)Everything the applicant stated at his interviews is true and correct; and the documents he provided to the Department are true as well.
(b)It was completely untrue that he had previously applied for a student visa. The applicant’s application for a SHEV was refused because the Department had become aware of information that had incorrectly suggested the applicant had unsuccessfully applied for a student visa.
(c)At the end of the SHEV interview the delegate informed the applicant that he had fulfilled 98% of the requirements for being granted refugee status; but that was rejected because the delegate believed the applicant had previously applied for a student visa.
(d)It is the applicant’s earnest request that the Court grant the applicant a visa.
First submission
The first submission is an appeal to the merits of the applicant’s claims. As I explained to the applicant at the hearing, this Court’s role is limited to determining whether, on the grounds contended for by the applicant, the Authority made some legal error that would warrant its decision being set aside, and his application for a SHEV be returned to the Authority for reconsideration.
Second submission
To the extent the second submission is directed to the delegate’s decision, whether the delegate was biased or apparently biased by itself is not relevant to whether the Authority made a jurisdictional error; the subject of the applicant’s application in this Court is the Authority’s, not the delegate’s decision. In any event, there is nothing on the face of the delegate’s reasons that could arguably support a finding that the delegate approached the applicant’s case with a closed mind, or that a fair-minded lay observer might reasonably apprehend that the delegate might not bring an impartial mind to the determination of the applicant’s application for a SHEV. Having become aware of information that was potentially adverse to the applicant, the delegate, as she was bound to do, informed the applicant of the potentially adverse information with a view to the applicant providing submissions; the applicant responded in a way that satisfied the delegate that the information was not adverse to the applicant, because it did not relate to the applicant; and the delegate in terms decided that the information was irrelevant to the applicant’s claims.
The fact the delegate put to the applicant potentially adverse information is, however, relevant to the Authority’s decision; and that is because, as I have already noted, the applicant, through his lawyer, submitted to the Authority that the delegate’s having put that adverse information to the applicant affected the applicant’s ability to give evidence during the SHEV interview; and, for that reason, the Authority should exercise its power under s 473DC of the Migration Act to invite the applicant for an interview. The Authority considered that request, but declined to exercise that power for two reasons. First, as I have set out above, the Authority found the applicant did not identify the evidence he claimed he did not get an opportunity to put before the delegate, or the information the applicant confused or gave incorrectly. Second, the applicant had been assisted by a migration agent who had put forward detailed submissions on behalf of the applicant. Given these reasons, there would be no basis for claiming it was not reasonably open to the Authority to decline the applicant’s request that the Authority interview.
I therefore do not accept the second submission the applicant made at the hearing.
Third submission
There is nothing in the material that was admitted into evidence before me that supports the applicant’s submission that the delegate stated to the applicant that he had fulfilled 98% of the requirements for being granted refugee status. In any event, even if there were such material that showed the delegate made such a statement, that by itself could not support a claim that the Authority made a jurisdictional error, because there is nothing in the Authority’s reasons that could suggest that the Authority was aware the delegate had made any such statement to the applicant.
I therefore also do not accept the applicant’s third submission.
Fourth submission
As I informed the applicant at the hearing, the Court does not have the power to grant the applicant any visa.
GROUNDS OF APPLICATION
Ground 1
By this ground the applicant claims the Authority “failed to assess harm based on my claims”. In relation to this ground the applicant repeated what he said was true; and that his claims were not treated seriously. The applicant referred to the document he submitted to the Department when he was in immigration detention. I understood this to be a reference to the document I identify in paragraph 17 of these reasons. The document, which comprises of three pages, is almost entirely in Bangla.[36] In response to my questions, the applicant said that one page of the document was a certificate issued by a member of the local council attesting to the applicant and his family being at risk of harm. That page is dated “06 Jun [sic] 2013”. The applicant, in effect, submitted the Authority did not properly consider the document.[37]
[36] CB17-19
[37] First Respondent’s Outline of Submissions, [43], referring to X v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 319, at [28], [53]
As I have already noted, the Authority did consider the document; but there was a significant limit on the weight the Authority could rationally place on it, given the document was almost entirely in the Bangla language. As the Minister has correctly submitted, the Authority was not under a general duty to obtain an English translation of documents provided by applicants in languages other than English. In any event, the Authority’s Practice Direction for Applicants, Representatives and Authorised Recipients dated 6 February 2017 provided:[38]
All documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided. As my summary of the Authority’s reasons demonstrate, the Authority otherwise considered each of the applicant’s claims and assessed the risk of harm the applicant may face on his return to Bangladesh based on the Authority’s findings.
[38] A PDF copy of the Authority’s Practice Direction for Applicants, Representatives and Authorised Recipients can be accessed at <>
Ground 1, therefore, fails.
Ground 2
In relation to this ground the applicant submitted that the current situation in Bangladesh is very bad; he has videos of some people being beaten to death in broad daylight; and the applicant is afraid of this situation.
Taken literally, ground 2 is incapable of disclosing any jurisdictional error because the Authority was required to assess the evidence that was before it; the Authority cannot be held to have made any error by not considering the situation that has existed in Bangladesh after the Authority made its decision.
Ground 2, however, may be taken to claim that the Authority did not consider, or properly consider the situation in Bangladesh as revealed by the evidence that was before the Authority. That claim, however, cannot be made out. As my summary of its reasons show, the Authority considered the country information contained in the DFAT Report; and the Authority assessed whether, given its findings in relation to the applicant, there was a real chance the applicant would be targeted on his return to Bangladesh.
Ground 3
By this ground the applicant claims the Authority made its decision without verifying the applicant’s documentary evidence, and statements. This ground is to be read as a claim that the Authority did not properly consider the documents and the statements he provided. So understood, the claim cannot succeed. The Authority accurately identified the claims the applicant made; considered each of them; and made findings that were reasonably open to it.
Ground 3 may also be read as a claim that the Authority ought to have undertaken steps to satisfy itself that the applicant’s documents and statements were correct. If ground 3 is to be read in that way, it cannot be made good. Section 5AAA(2) of the Migration Act, as it applied to the applicant’s application, provided that “it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person”, that is, a person to which s 5AAA(1) applies, namely, “a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising)”, and “to provide sufficient evidence to establish the claim”. Thus, the Authority is under no general duty to investigate a claim for protection that is before it to determine the veracity of the claim.
At the hearing the applicant referred to photographs of what he claimed to be the burned remains of his house.[39] The photographs, however, were not before the Authority; and the Authority, therefore, cannot be found to have made a jurisdictional error because it did not consider them.
[39] The photographs are annexed to the applicant’s affidavit made on 21 January 2019
Ground 3 also fails.
OTHER MATTERS
In his written submissions the Minister refers to the certificate that was issued under s 473GB(3) of the Migration Act, and submits that there can be no suggestion the Authority had any regard to the information covered by the certificate. The applicant made no submission about the certificate, and it is not the subject of any of the grounds of application. There is nothing that suggests that the issuing of the certificate could raise any arguable claim of jurisdictional error by the Authority.
DISPOSITION AND COSTS
The applicant has not succeeded on any of the grounds or submissions that he has made. For that reason, I will order that the application be dismissed.
The Minister claims an order for costs, and that I set those costs in the amount of $8,371.30, being the amount provided for by item 3 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The applicant submitted he is not in a position to pay costs that may be ordered against him. A party’s inability to meet an order for costs by itself is not a reason for declining to make an order for costs where the making of such an order would be the appropriate exercise of the discretion to award costs.
I am satisfied that the appropriate exercise of the discretion to award costs is that the applicant, being the unsuccessful party, should pay the Minister’s costs; and I am satisfied that it is appropriate to set those costs in the amount of $8,371.30. I propose to make an order that the applicant pay the Minister’s costs set in the amount of $8,371.30.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 23 May 2025
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