FZA18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1396

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FZA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1396   

File number(s):	SYG 3199 of 2018
Judgment of:	JUDGE ZIPSER
Date of judgment:	17 December 2024
Catchwords:	MIGRATION -  judicial review – decision of Administrative Appeals Tribunal – protection visa – whether Tribunal failed to consider claims or documents - no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1958 (Cth) s 36(2)
Cases cited:	Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543
Division:	Division 2 General Federal Law
Number of paragraphs:	29
Date of hearing:	10 December 2024
Place:	Parramatta
Applicant:	In Person
Solicitor for the Respondents:	Ms Carly Warren of Sparke Helmore Lawyers

ORDERS

SYG 3199 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FZA18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	17 DECEMBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the sum of $5,000.

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

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

REASONS FOR JUDGMENT

JUDGE ZIPSER

INTRODUCTION

1. On 16 November 2018, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (Class XA) visa under s 65 of the Act.

2. For the reasons that follow, the application is dismissed.

   FACTUAL BACKGROUND

3. On 30 September 2015, the applicant, a citizen of Bangladesh, lodged an application for a protection visa.

4. On 20 May 2016, a delegate of the first respondent refused to grant the applicant the visa.

5. On 6 June 2016, the applicant applied to the Tribunal for review of the delegate’s decision.

6. On 31 July 2018, the Tribunal invited the applicant to a hearing on 30 August 2018.

7. On 30 August 2018, the applicant attended a hearing before the Tribunal, with the assistance of a Bengali interpreter.

8. On 23 October 2018, the Tribunal made a decision affirming the delegate’s decision not to grant the visa.

   TRIBUNAL’S DECISION

9. The Tribunal, after setting out evidence before it and relevant country information, made findings in relation to the applicant’s claims.

10. The Tribunal accepted some aspects of the applicant’s claims, for example that he was a sports photojournalist who wrote three commentary pieces critical of the government and the police in Bangladesh. However, the Tribunal found that articles critical of the government are commonly published in Bangladesh by editors and journalists who continue to work unharmed and the applicant would not face a real risk of being persecuted because of the articles he published or might publish on return to Bangladesh.

11. The Tribunal found that other aspects of the applicant’s claims were inconsistent, unreliable or otherwise unsatisfactory, such as all of his claims about contact and confrontation with Islamist militants.

12. The Tribunal accepted that the applicant had engaged in journalistic activities in Australia in good faith. But he did not face a real chance of persecution in Bangladesh because of his activities in Australia.

13. The Tribunal found that the applicant would not engage in activities in Bangladesh to disseminate his own secular, atheist and free-thinking beliefs for the reason that he is not interested in doing so.

14. Overall, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.

    PROCEEDINGS IN THIS COURT

    Application

15. On 16 November 2018, the applicant filed in this Court an application for judicial review of the Tribunal’s decision.

16. On 31 January 2020, the applicant filed an amended application. The grounds are as follows (verbatim):

    1.Based on my submission and the evidence to support my claim I invite the honourable Court to take into consideration that the Tribunal decision is affected by error of law as I continue to believe that I have a genuine fear of harm as a sports photo journalist, especially being a free thinker, prominent photo journalist and no ability to relocate anywhere in Bangladesh because I am well known person and relocation is not possible and the tribunal was unable to justify how I can relocate without being subjected to serious harm and the tribunal failed to consider my claims as genuine fear of being persecuted for reasons of being an atheist, secularist, free-thinker and I am also prominent photo journalist with a reputation for having been friends with the late humanist poet Shamsur Rahman.

    2.The Member accepted that I am a sport photo journalist, accepted that I wrote three commentary pieces about blogger killings that were published by a prominent daily newspaper in Bangladesh, and that the articles are critical of the government and the police in Bangladesh and the Member failed to understand that I was hiding most of the time and my work was interrupted and the Member's reasoning is not logical and did not have probative evidence that I could continue a life at professional level and continue exercising my thinking in an Islamic country such as Bangladesh.

    3.The thinking of the Member of the Tribunal is not reasonable and he predicted that I will not face harm which is not based on logical evidence.

    4.The article I submitted should hopefully lead the honourable Court to see that persecution in Bangladesh is not avoidable.

    Applicant’s submissions and evidence

17. On 31 January 2020, the applicant filed a written submission. The single-page submission is unhelpful in identifying any possible jurisdictional error in the Tribunal’s decision.

18. Attached to the submission was a bundle of documents which appear to be reports and articles from media sources about events in Bangladesh. Paragraph 2 of the written submission, and ground 4 of the amended application, refer to these documents. In the circumstances, I permitted the applicant to tender the bundle at the hearing on 10 December 2024. However, as I stated to the parties, the reports and articles, most of which post-date the Tribunal’s decision, appear to be irrelevant in establishing jurisdictional error in the Tribunal’s decision.

19. At the hearing on 10 December 2024, the applicant appeared in person. He was assisted by a Bengali interpreter. At the commencement of the hearing, I explained to the applicant, with reference to the Tribunal’s decision, the structure of the decision. I explained to the applicant that the Court may only quash the Tribunal’s decision if there is a jurisdictional error, which I describe as a significant mistake or error, in the decision and the onus lies on the applicant to persuade the Court that there is a jurisdictional error. I explained to the applicant the main categories of jurisdictional error. I then adjourned the hearing for about 20 minutes to give the applicant an opportunity to consider the submissions he wanted to make. Following the adjournment, the applicant made oral submissions.

    First respondent’s submissions

20. On 25 November 2024, the first respondent filed a written submission. At the hearing on 10 December 2024, Carly Warren from Sparke Helmore appeared for the first respondent and made oral submissions.

    CONSIDERATION

    Grounds in amended application

21. I have considered the four grounds in the amended application. In relation to the grounds:

    (a)Some matters stated in the grounds do not appear to relate to the Tribunal’s decision. For example, the applicant complained in ground 1 that the Tribunal “was unable to justify how I can relocate without being subjected to serious harm”. However, no part of the Tribunal’s decision considered the ability of the applicant to relocate in Bangladesh.

    (b)The applicant asserted in ground 1 that “the tribunal failed to consider my claims”. However, a review of the Tribunal’s decision indicates that the Tribunal considered the applicant’s claims and the applicant did not identify to the Court a claim which the Tribunal did not consider.

    (c)Grounds 2 and 3 include assertions that “the Member’s reasoning is not logical and did not have probative evidence” and “the thinking of the member of the Tribunal is not reasonable”. In the absence of particulars, it is difficult to evaluate these assertions. The applicant did not specify during the hearing a particular part of the Tribunal’s reasoning which was not logical or a particular finding not based on probative evidence.

22. None of the matters in grounds 1 to 4 establish jurisdictional error.

    Contentions of applicant at hearing

23. At the hearing on 10 December 2024, the applicant principally repeated aspects of his claims made to the Tribunal, referred to the current situation in Bangladesh including a contention that fundamentalists rule Bangladesh, and asked the Court to give him justice. None of these matters establish a jurisdictional error in the Tribunal’s decision.

24. In an effort to try to fit some of the applicant’s contentions to established categories of jurisdictional error:

    (a)The applicant contended that the Tribunal made a decision without considering his paperwork, including a purported police report. However, a review of the Tribunal’s reasons for decision indicate that the Tribunal considered the documents provided by the applicant to the Tribunal. The Tribunal considered the purported police report at [52]. That the Tribunal made a finding giving no weight to the report does not mean the Tribunal did not consider, or genuinely consider, the document. I am not persuaded that the Tribunal did not consider, or genuinely consider, the police report document.

    (b)The applicant appeared to complain about the Tribunal’s finding that he was not “high-profile”. The Tribunal found at [54] that it was not satisfied that the applicant was “a known, let alone a high-profile, secularist, atheist or free-thinker”. The Tribunal provided reasons in support of this finding. That the applicant may not agree with the finding does not mean the finding is wrong, let alone infected by a jurisdictional error. I see no error in this aspect of the Tribunal’s decision.

    Court’s consideration of Tribunal’s decision

25. In circumstances where the applicant was unrepresented, as referred to in Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543 at [23], “I have scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error” to the extent of “a mistake [which] clearly appears in the Tribunal’s reasons”.

26. Although the Tribunal at [49] accepted aspects of the applicant’s claims, for example that he was a sports photojournalist who wrote three commentary pieces critical of the government and the police in Bangladesh, the Tribunal went on to make a number of findings adverse to the applicant’s claim for a protection visa. For example:

    (a)The Tribunal at [49] found that “articles like these were and are commonly published in Bangladeshi newspapers by editors and journalists who continue to work unharmed”.

    (b)The Tribunal at [50] repeated that “many journalists continue to write and publish articles like the three that [the applicant] wrote in August 2015 and have not evidently been harmed for doing so”. The Tribunal added that the applicant may continue to write commentary pieces like the three in evidence, but the Tribunal was “not satisfied … that this would give rise to a real risk of his being persecuted there in the reasonably foreseeable future”.

    (c)In response to the applicant’s claims about contact and confrontations with Islamist militants, the Tribunal at [52] rejected those claims. The Tribunal at [52] found “all of [the applicant’s] claims about contact and confrontations with Islamist militants inconsistent and unreliable …”. The Tribunal at [52] also considered and made findings in relation to alleged corroborative material the applicant provided to the Tribunal.

    (d)The Tribunal at [54] found that the applicant, on return to Bangladesh, “will not engage in activities … to disseminate his own secular, atheist and free-thinking beliefs simply for the reason that he is not interested in doing so”.

    (e)Based on the above findings, the Tribunal ultimately found at [58] that it was “not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a)”.

    (f)In relation to s 36(2)(aa) of the Act, the Tribunal, after considering various matters at [59]-[65], concluded at [66] that it was “not satisfied [the applicant] is a reason in respect of whom Australia has protection obligations under s 36(2)(aa)”.

27. The Tribunal provided reasons in support of these findings which appear to rationally support the findings.

28. I cannot identify any mistake which clearly appears in the Tribunal’s decision.

    COSTS

29. At the conclusion of the hearing, the Court invited submissions from the parties on costs. The first respondent sought costs in the amount of $5,000. The applicant did not oppose this amount. The first respondent’s claim for costs, which is below the scale amount, appears reasonable. The Court will make an order in this amount.

I certify that the preceding twenty-eight (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       17 December 2024