FML18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 214
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FML18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 214
File number(s): SYG 2928 of 2018 Judgment of: JUDGE KAUR-BAINS Date of judgment: 18 February 2025 Catchwords: MIGRATION– Judicial review – decision not to grant a Protection (Class XA) (subclass 866) visa –litigant in person raised new ground for judicial review at hearing- no jurisdictional error disclosed-application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 476 Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 18 February 2025 Place: Sydney Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr L Dennis of Mills Oakley for the First Respondent Counsel for the Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 2928 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FML18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
18 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application is dismissed.
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 Kaur-Bains
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 24 September 2018. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant’s Protection (Class XA) (subclass 866) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
For the reasons set out below, the application is dismissed.
BACKGROUND
The applicant is a citizen of Bangladesh who arrived in Australia on 15 November 2015, as the holder of a Visitor (Class FA) (subclass 600) visa. The visa was granted on 2 November 2015 (Court Book (CB) 51). On 11 December 2015, the applicant lodged a valid application for the visa (CB 1).
On 21 April 2016, the delegate of the Minister invited the applicant to attend an interview (CB 118).
On 2 May 2016, the applicant attended an interview with the delegate. At the interview, the applicant claimed that a local Minister for Parliament (MP), had been elected in 2014. The applicant told the delegate that he had been targeted by that MP from 2014 onwards (CB 134).
On 6 June 2016, a delegate of the Minister refused to grant the applicant a protection visa. The delegate was not satisfied that he was owed protection obligations as he was neither a refugee nor owed complementary protection. Further, the delegate found the applicant was not a credible witness with regards to his protection claims. The delegate concluded that ss 36(2)(a) and 36(2)(aa) of the Act had not been met (CB 142).
On 4 July 2016, the applicant applied to the Tribunal for review of the delegate's decision (CB 146).
On 10 August 2018 the applicant received a hearing invitation from the Tribunal (CB 168).
Protection Visa Claims
The applicant’s protection claims, as set out in his visa application are summarised as follows (CB 44-48):
(a)The applicant was actively involved with the Bangladesh Nationalist Party (BNP), a political group in opposition to the Bangladesh government. As a result of his involvement with the BNP, he feared harm from the Bangladesh government.
(b)The applicant had a history of active affiliation and involvement with BNP.
(c)The Bangladesh government elected in January 2014 had made arrests of its citizens on the basis of antigovernment activities.
(d)The applicant believed he would be detained owing to his participation in antigovernment activities, on account of plain clothes police officers attending his place of residence in Bangladesh.
(e)The applicant had cleared Immigration at Dhaka international airport through bribery, to arrive in Australia.
TRIBUNAL’S DECISION
On 12 September 2018, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant appeared assisted by a Bengali interpreter (CB 180).
The Tribunal found inconsistencies in the evidence concerning the applicant’s core protection claims. The Tribunal made adverse credibility findings against the applicant such that it was not satisfied that the applicant faces a real chance of serious or significant harm should he return to Bangladesh ([44]-[46] of the reasons).
On 24 September 2018, the Tribunal affirmed the decision under review. The Tribunal was not satisfied that the applicant met ss 36(2)(a) or 36(2)(aa) of the Act ([52]- [54] of the reasons).
RELEVANT LAW
The Act provided at the relevant time:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the Applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or;
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as applied for by the applicant; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment
…
GROUNDS IN THE APPLICATION
The applicant’s grounds for judicial review are set out in his application dated 17 October 2018 as follows:
Ground One:
The Administrative Appeals Tribunal has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars:
In dealing with the Applicant's claims under Section 36(2)(aa) of the Migration Act, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.
Ground Two:
The Administrative Appeals Tribunal denied procedural fairness to the applicant.
(as per original)
PROCEEDINGS BEFORE THE COURT
The applicant appeared at the hearing unrepresented, assisted by a Bengali interpreter. Mindful of the Court’s duties to a litigant in person, I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Application, Court Book and the Minister’s written submissions. Prior to the hearing the interpreter interpreted to the applicant the Minister’s written submissions.
CONSIDERATION
Grounds One and Two
At the hearing before me, the applicant said that his lawyer had drafted the application. The applicant said, “I have nothing to say I do not know anything about the law”.
Grounds one and two are unparticularised and the applicant did not file any written submissions and was unable to particularise these grounds as to why he says the Tribunal failed to apply the correct test pursuant to s 36(2)(aa) of the Act and why the Tribunal denied him procedural fairness.
New Ground Raised at Hearing
At the hearing before me, the applicant said that he had said the first time (at the interview with the delegate) that he bribed an immigration official upon leaving Bangladesh. The applicant said when asked by the Tribunal as to why he did not tell the Tribunal about the bribery, he said that he did not want to bring shame to his country.
The Minister says that the Tribunal at [32] and [33] of its reasons did record that it put to the applicant that he had told the delegate that he had bribed an immigration official upon leaving Bangladesh but had not told the Tribunal about the bribery. As noted at [32] of its reasons, the Tribunal put this inconsistency to the applicant and the applicant responded that he did not tell the Tribunal about the bribery, as he was concerned given that this would be an illegal act.
If a ground had been raised as set out in [18] of this judgment, given the Tribunal’s reasons at [32] and [33] that the Tribunal was not persuaded by the applicant’s explanation as to why he did not tell the Tribunal about the bribery, I would have found that no jurisdictional error was disclosed as it was a matter for the Tribunal as to whether it accepted the applicant’s explanation. I cannot engage in merits review.
Given the applicant is a litigant in person, I have reviewed the decision of the Tribunal to ascertain whether there is an obvious jurisdictional error on the part of the Tribunal in its reasons. I have not identified any jurisdictional error.
CONCLUSION
The application must be dismissed, as no jurisdictional error is disclosed.
I will hear the parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 18 February 2025
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