Federal Court of Australia

DIT19 v Minister for Immigration and Multicultural Affairs [2025] FCA 189

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent be renamed “Minister for Immigration and Multicultural Affairs”.

2.    The application for leave to extend time to appeal is dismissed.

3.    The applicant pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER J:

1    The applicant is a national of Bangladesh, born February 1988, who arrived in Australia on 24 March 2013 as an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth). Three years later, on 18 October 2016, the applicant applied for a Safe Haven Enterprise (Class XE) visa (SHEV). On 7 November 2018, the Minister’s delegate interviewed the applicant in relation to his application (the SHEV interview) and sought the applicant’s comments in relation to information, constituting “adverse information”. On 4 December 2018, the applicant, through his then legal representative provided a response. On 10 July 2019, the Minister’s delegate refused to grant the applicant a SHEV. On 16 July 2019, the delegate’s decision was referred to the Immigration Assessment Authority. On 5 August 2019, the applicant provided a submission to the Authority On 19 August 2019, the Authority affirmed the delegate’s decision. The applicant thereafter unsuccessfully challenged the Authority’s decision before the former Federal Circuit Court of Australia. The FCCA dismissed his application on 3 February 2021: DIT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 171 (PJ or primary judgment).

2    The issue to be determined is whether to grant the applicant leave to extend time (22 days) to appeal from the orders of the FCCA. The primary judgment was delivered on 3 February 2021. Rule 36.03 of the Federal Court Rules 2011 (Cth) required an appeal to be lodged within 28 days. This matter was docketed to me in February 2025.

3    If the extension were granted, the applicant proposes to advance six grounds of appeal, none of which are directed to error within the primary judgment but are instead directed to the Authority’s decision.

4    When considering whether to grant an extension of time, relevant considerations include the length of the delay, the adequacy of the explanation for the delay, any prejudice that arises from the grant of an extension and the merits of the proposed substantive application: see, eg, SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33].

5    For the following reasons, I refuse leave to extend time to appeal. I accept that the applicant had a reasonable explanation for the delay and that the Minister will suffer no prejudice. However, for the reasons which follow, I can discern no merit in the proposed grounds of appeal.

Background

6    The applicant claims that he is entitled to a protection visa because he alleges (as helpfully summarised by Minister):

a.     He was involved in the Bangladeshi Nationalist Party (BNP). His involvement started when he was 12 or 13 and, 6 or 7 years later, he became the Assistant of the Secretary of the youth wing of the BNP. In 2009, there was an election, and the Applicant was involved in campaigning. Fights took place with Awami League (AL) members at this time (TB 71). The Applicant’s evidence as to the number of fights he was present at is “around” 5 and he was injured. As a result of the fighting, the Applicant often went into hiding in nearby villages (TB 72).

b.     In 2010, [he] went to Dhaka to participate in political rallies. When he arrived, he and his group were attacked by AL members. One group member, AH, was killed, which incited further political activity from the BNP (TB 73).

c.     He was accused by the AL of being a spy for the BNP. His parents told him that AL members began coming to his house to look for him. He began to move between different houses in his village to remain safe. Shortly before he fled Bangladesh, AL members pulled a gun on the Applicant. The Applicant and his parents decided that he had to leave Bangladesh for his own safety (TB 74).

d.     Since leaving Bangladesh, the AL has been asking about him and false charges have been laid against him (TB 74-75).

7    On 7 November 2018, the Minister’s delegate interviewed the applicant in relation to his application and sought, pursuant to s 57 of the Act, the applicant’s comments in relation to information, constituting “adverse information”, which suggested that he was not a supporter of the BNP and that he maintained friendly and ongoing associations with the opposing Bangladesh Awami League.

8    By his then legal representatives, on 4 December 2018, the applicant replied to the delegate’s s 57 request for comment with statements that included the following:

Issue 1: Facebook friendship with a senior official of the Awami League in Australia

[The applicant] does not deny that he has friendships in Australia with people who are supporters of the Awami League. While it is not clear which senior official the Department is referring to in its s 57 request, [the applicant] instructs that his roommate, [AS], is a secretary of Awami League in Australia and another close friend who lives in the area, [SM], also supports the Awami League. [The applicant] met these friends when they were living in Queensland and they moved to Sydney together. They bonded over their shared nationality and refugee experience. We submit there is no necessary implication that friends must share the same political opinion. [The applicant] maintains that there is a significant difference between having friends of an opposing political ideology in Australia and maintaining those friendships in Bangladesh where the political climate is violent and incendiary. [The applicant] states that in Sydney he maintains friendships with members of both the BNP and the Awami League and has the capacity to mix with both.

Issue 2: Function held in honour of Sheikh Hasina

[The applicant] instructs that he did attend a function earlier in the year at which Sheik Hasina was a guest. He states that [AS] and [SM] arranged his attendance at this event. [The applicant’s] reasons for attending the event were twofold. First, his roommate and friend were attending and he was curious to see the Prime Minister of his home country in the safe context of an Australian event. He wanted to observe the meeting whilst knowing that no problems would arise at an event of this nature like they would in Bangladesh. He maintains that his attendance at the event in no way imputes support of the Bangladeshi Prime Minister as distinct from political curiosity.

Secondly, [the applicant] saw it as an opportunity to publicise support for the Awami League on his Facebook account. Since the Awami League have been in power, [the applicant] has been careful not to publicise any material in support of the BNP on social media as he is conscious that his family members back home will be harassed. His father in Bangladesh has requested that he post material to make it appear that he is in support of Awami League and no longer an active BNP member. [The applicant] posted on Facebook about his attendance at the Sheik Hasina event so that his father could show the authorities when they came to the home to make threats and inquiries.

However, [the applicant] maintains that despite his social media profile, he is still very active in local BNP politics. He has many photos on his phone evidencing his attendance at BNP events which he consciously does not post on social media. Photos of [the applicant] at BNP functions are enclosed with these submissions.

Issue 3: Post of Sheikh Mujibur Rahman with official Awami League logo

[The applicant] instructs that he posted photographs of Sheikh Mujibur Rahman to his Facebook account on the instruction of his father, as mentioned above. He posted these photos at a time when his family was facing continued harassment in Bangladesh and his father used these posts to assure the authorities that [the applicant] was not actively supporting the BNP. We submit this was not a genuine display of support for the Awami League but was rather an attempt to create a false profile to mislead the Bangladeshi authorities.

9    On 10 July 2019, a delegate of the Minister had refused to grant the SHEV. The delegate found that the applicant’s father and family members were low-level supporters of the Awami League (AL) and that there was no information to suggest that they had experienced any form of harm in the recent past. As to the applicant’s purported involvement in the Bangladesh National Party (BNP), the delegate found the information the applicant had provided as vague and lacked detail and was not satisfied that the applicant had been a person who had been politically active for a number of years. The delegate was also not satisfied that the applicant’s claims that he supported the BNP was plausible when his family supported the Awami League. The delegate was concerned by the adverse information that the Department had found on the applicant’s social media posts, as to his affiliation not with the BNP but with a senior official of the AL in Australia, attendance at a function for the current AL Prime Minister and a post of an official logo of the AL. The delegate found his responses in this regard uncredible. As a consequence, the delegate found as a result of the applicant’s testimony, inconsistencies and lack of compelling evidence, that he had serious concerns as to the credibility of the applicant’s claims of fearing harm from the AL as a result of being a BNP supporter. The delegate did not accept the other claims made by the applicant regarding alleged attacks by AL members, the claims of attacks by the AL on his brothers now living in Malaysia and purported false charges made against him in Bangladesh. The delegate did not accept that the applicant was a politically active supporter of the BNP in Australia nor that he has been accused of being a spy for the BNP.

10    On 16 July 2019, the delegate’s decision was referred to the Authority for review. The applicant provided a submission to the Authority on 5 August 2019. On 19 August 2019, the Authority affirmed the delegate’s decision.

The Authority’s decision

11    As has previously been observed by this Court, the form of review undertaken by the Authority is a “limited form of review” (s 473BA of the Act) and is “sui generis”, which is not equivalent to the merits review undertaken by the Administrative Appeals Tribunal: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; 253 FCR 448 at [85] per Charlesworth J.

12    In the Full Court decision, Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; 254 FCR 534 Griffiths J outlined (at [19]–[20]) the Authority’s procedure of generally undertaking the review on the papers:

19    The legislative scheme obliges the IAA to conduct its review of a fast track reviewable decision referred to it by considering the review material provided to it under s 473CB, without accepting or requesting new information and without interviewing the referred applicant (s 473DB(1)). In other words, the review is generally conducted on the papers and focuses on the review material provided by the Secretary to the IAA.

20     There are provisions in Subdiv C of Div 3 concerning the IAA getting documents or information which were not before the primary decision-maker when he or she made the decision under s 65 and which the IAA considers may be relevant. Such documents or information are described as “new information” (s 473DC). It is made clear that the IAA does not have a duty to get, request or accept, any new information if requested to do so by a referred applicant or anyone else (s 473DC(2)). The IAA may, however, invite a person to give new information to it, either orally or in writing (s 473DC(3)).

(Emphasis added).

13    On 19 August 2019, the Authority affirmed the delegate’s decision. As required by s 473DB of the Act, the Authority considered the material that had been provided to it by the secretary. The Authority was constrained from considering any new material provided by the applicant, unless the conditions of s 473DD were met. No issue was raised before the primary judge about the rejection of the new material.

14    The Authority expressed “significant doubt” as to the applicant’s claims for protection: IAA[16]. The Authority reasoned that the applicant’s response to the adverse information put to him by the delegate was unpersuasive, and found the applicant’s claims to be implausible: IAA[22]–[23]. The Authority was not persuaded that the applicant attended an event in Australia at which the Bangladeshi Prime Minister (of the AL) appeared “purely out of curiosity”: IAA[24]. This was, in part, due to the protests that had occurred on 27 and 28 April 2018, where hundreds of Bangladeshis had gathered demanding the freedom of the previous BNP Prime Minister. The Authority was concerned by his lack of participation in these protests: IAA[23]. The Authority also found it highly unlikely that, if the applicant was of interest to the Bangladeshi authorities and charges had been filed against him, he would have been able to attend a function with the Bangladeshi Prime Minister and leader of the AL given security checks would have been undertaken for those attending the function: IAA[25].

15    The Authority also held concerns about the applicant’s claims concerning the false charges: IAA[28]–[34]. It was concerned as to the provenance of these documents and noted that available country information suggested that forged and fraudulently obtained documents are easily obtainable in Bangladesh: IAA[35]. Given the Authority’s “not insignificant credibility concerns regarding the applicant”, the poor quality of the translation of the documents relied upon in support of the allegation of false charges being made against him for politically motivated reasons and the country information, the Authority gave them no weight: IAA[35].

16    The Authority did not find the applicant’s evidence as to his BNP activities in Bangladesh “compelling”, came across as “rehearsed and lack[ing] spontaneity”, and considered that the applicant “had a propensity to exaggerate or aggrandise his claims”: IAA[36]. The Authority found that the applicant’s evidence regarding his father had “developed significantly” between the SHEV application and his interview with the delegate (at IAA[37]), that aspects of his claims were “farcical” and inconsistent (at IAA[38]), and that there were “significant discrepancies” between his written account and then orally to the delegate: IAA[39].

17    Ultimately, the Authority found that the applicant had fabricated his claims as to why he left Bangladesh in their entirety, and the Authority rejected those claims: IAA[41]. The Authority did not accept that the applicant was a BNP member in Bangladesh, that he had been attacked by the AL whatsoever, or that he was the subject of false charges. The Authority did accept that the applicant had “on some very minor level” supported the BNP, but considered that the applicant was “of no interest to the authorities including AL supporters, members or cadres at the time he departed [Bangladesh]”: IAA[43]. The Authority accepted that the applicant had some involvement with the BNP in Australia: IAA[45]. However, the Authority was not satisfied that the applicant had a genuine commitment to being politically engaged, or that he would be involved in politics, on return to Bangladesh: IAA[46] and [49]. Further, the Authority did not accept that the applicant had any profile of adverse interest to the authorities or AL members or supporters before he left Bangladesh or if he were to return: IAA[55].

18    In the result, the Authority affirmed the delegate’s decision not to grant the protection visa, finding that he did not meet the requirements of the definition of a “refugee”, that whilst the applicant may have unlawfully departed Bangladesh to reach Australia (at IAA[51]), the applicant did not face a real chance of suffering harm of any kind should he be returned to Bangladesh in the foreseeable future, nor that he qualified for complementary protection (ss 5H(1), 36(2)(a) and 36(2)(aa) of the Act): IAA[56] and [59].

The primary judgment

19    The applicant, who was then legally represented, sought judicial review of the Authority’s decision, before the then Federal Circuit Court, on two grounds: (a) that the Authority failed to apply the correct test pursuant to s 36(2)(aa) of the Act; and (b) and that the Authority denied the applicant procedural fairness. The primary judge found that there was no error in the Authority’s approach to its assessment of complementary protection: PJ[24]. As to the second ground, the primary judge noted that the Authority’s conduct was to be viewed through the lens of legal unreasonableness as opposed to procedural unfairness given the consequence of the “codifying effect” of s 473DA(1) citing BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [34]. The primary judge concluded that the Authority did not do anything that was legally unreasonable: PJ[26].

The application is refused because the proposed grounds of appeal are unmeritorious

20    For the following reasons, the applicant’s application to extend time to appeal the decision of primary judge is refused, the proposed grounds are unmeritorious.

21    The applicant proposed six grounds of appeal, in the following form:

1.    The decision was affected by jurisdictional error in that the Immigration Assessment Authority failed to consider merits of my case in completed which resulted in crucial factors regarding my case being not assessed against the relevant legal criteria.

2.    The decision was affected by jurisdictional error in that the Immigration Assessment Authority failed to give adequate weight to my psychological state at the time of my Protection Visa interview and failed to acknowledge that what may have appeared as inconsistencies were in fact a result of my fears and psychological issues related to expressing myself before an authority.

3.    The decision was affected by jurisdictional error in that the Immigration Assessment Authority dismissed evidence such as my membership to a particular political group without a reasonable ground which could be supported by evidence.

4.    The decision was affected by jurisdictional error in that the Immigration Assessment Authority took into account irrelevant and subjective considerations alienating the decision to arrive at an objective outcome.

5.    The decision was affected by jurisdictional error in that the accuracy of the interpretation was not tested.

6.    The decision was affected by jurisdictional error in that it was unreasonable to the objective assessor.

22    These grounds bear no semblance to any of the arguments raised before the primary judge.

23    As stated by the Full Court in DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs and Another [2024] FCAFC 24; 302 FCR 25 (at [28]–[32]):

28    The appellant requires the leave of the Court to raise grounds not raised below: Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 at 335 [11] (Siopis, Flick and Katzmann JJ). The exercise of the Court’s discretion to grant such leave is informed by s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which requires the discretion to be exercised in a manner which facilitates the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34] (Katzmann, Banks-Smith and Rofe JJ).

29    As the Full Court explained in Khalil at [34] to [37], the predominant consideration is the interests of justice: see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at 598 [46] (Kiefel J (as her Honour then was), Weinberg and Stone JJ), Francuziak at 335 [11] and Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144; (2023) 298 FCR 476 at 484 to 485 [40] (Stewart, Feutrill and Hespe JJ) and the authorities there cited.

30    The discretion to grant or refuse such leave is broad. …

…

31    It is well-established that the merits or otherwise of the proposed new grounds of appeal are an important consideration: see Khalil at [36], EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 at [5] (Rangiah, Stewart and Cheeseman JJ); Garland at 485 [41].

32    Consideration of the merits of proposed new grounds of appeal does not involve a full consideration of those grounds: EQV20 at [5]. As the Full Court (Heerey, Moore and Goldberg JJ) explained in Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [24]:

... in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge.

24    The Court notes that the proposed new grounds are identical to grounds raised in another proceeding before the Court: ELF19 v Minister for Immigration and Multicultural Affairs [2025] FCA 168. As is apparent from a reading of the proposed grounds, they are ambiguous on their terms. They make no specific reference to what the Authority, in this case, failed to do.

25    At hearing the applicant made no submission which specifically addressed and elucidated how the Authority had erred. The applicant had the benefit of an interpreter who read each of the grounds to him. Save for with respect to proposed ground one, no specific submission was made. The Minister, in his written and oral submissions, identified why the Minister said that each of the proposed grounds were unmeritorious. The applicant was given a further opportunity to respond to each ground.

26    The applicant made one submission in his written outline of submissions in support of the substantive proposed grounds of appeal: that he “continue[s] to believe that what happened to [him] in Bangladesh was genuine and true and the IAA accepted that [he had] some very minor level of involvement with the Party back home and in Australia therefore [his] application and claim was not fabricated rather it was genuine.”

Proposed ground one:

27    With respect to proposed ground one, the applicant submitted orally that the Authority had failed to consider what had happened to him when he lived in Bangladesh. It was the applicant’s submission, that the Authority gave attention to the fact that he had attended a function whilst in Australia with the current Prime Minister of Bangladesh but that was not inconsistent with him having been involved or now being involved with the opposition party, the BNP. It was his submission that he was “only practising what he has learned here” namely political tolerance. It was the applicant’s submission, in essence, that there is an ability, in Australia, for Bangladeshi people to hold different political views and to be members of different political parties, but that is different from the situation in Bangladesh. The applicant repeated claims which had been rejected by the delegate and the Authority as to his claims of fear of harm for himself and his family if he were returned because of his BNP involvement. The applicant sought to explain the basis for adverse social media material, as in part, to try and protect his own family in Bangladesh. It was his submission that he had not engaged politically on social media during the 13 years he has been in Australia. The applicant submitted, rhetorically, why would he have endured the isolation from his family and friends for 13 years unless he feared harm. He submitted that he has made a positive contribution to Australian society, has attained useful skills, been employed in the construction industry and feels safe here.

28    It is not for this Court to reconsider the merits of the applicant’s protection visa application. It may be accepted that if the Authority had failed to consider a significant aspect of the applicant’s claim, then this could found a claim of jurisdictional error. However, it is clear, as set out above, that on a fair reading of the Authority’s reasons, that it comprehensively considered the merits of the applicant’s claims. It is clear from the Authority’s reasons that there were multiple bases as to why the Authority did not accept each of his claims. The Authority’s reasons did not centre on, nor solely rely on, the applicant’s attendance at the Prime Minister’s function. Further, it is clear, that the Authority, did in a detailed way consider each of his claims.

29    Further, the Authority was not obliged to uncritically accept what the applicant claimed: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451E–F (Beaumont J). There was nothing unreasonable, irrational nor illogical in the way that the Authority attended to its task: Such a finding of unreasonableness, irrationality or illogicality could only be made where the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45].

Proposed ground two:

30    No submission was made by the applicant at all with respect to this ground. The proposed ground two alleges the Authority failed to give adequate weight to the applicant’s “psychological state” at the time of his protection visa interview and failed to acknowledge that his “psychological state” and his “fears” could have led to “inconsistencies”.

31    However, this claim regarding the applicant’s psychological state was never raised before the Authority or the primary judge. The applicant has provided no evidence to this Court, before the primary judge nor the Authority with any evidence about his “psychological state”. Further, whilst the applicant, through his legal representatives, made submissions to the Authority, no mention was made that he was suffering from some adverse psychological condition, or “fear”, or that either or both of those matters were the reason for “inconsistencies”.

Proposed ground three:

32    The applicant made no submission with respect to this ground either in opening nor in reply after the Minister had made his submissions. It is clear, for the reasons given with respect to proposed ground one, that the Authority gave consideration to each of the applicant’s claims regarding his membership of the BNP. No explanation has been provided as to how the Authority’s non-acceptance of the applicant’s claims was “unreasonable”.

33    A claim that the Authority dismissed evidence “unreasonably”, can only give rise to an error which may be the subject of judicial review if it constitutes “legal unreasonableness”. Where reasonable minds might differ about the outcome of, or justification for, the exercise of power (here the making of the decision by the Authority), or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise will not be legally unreasonable simply because the Court disagrees with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] per Wigney J. 

34    From my review of the Authority’s reasons and all the material before the Authority, I am satisfied that the Authority’s reasons and findings, were ones that a decision-maker could have reached on the same material. Accordingly, there is no unreasonableness or irrationality demonstrated: Sabharwal at [45]. The applicant’s statement that the Authority lacked a “reasonable ground” for not accepting his claims is, ultimately, an expression of his disagreement with its findings. That does not demonstrate jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [124] (Crennan and Bell JJ).

Proposed ground four:

35    The applicant made no submission about this ground and did not particularise what were said to be the “irrelevant or subjective” considerations. A consideration will only be “irrelevant” if it is something that, by operation of the Act, that the decision-maker is forbidden from taking into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39– 41 (Mason J).

Proposed ground five:

36    Again the applicant made no submission regarding this ground and what the alleged inaccuracy was. There was no evidence before this Court as to the standard of interpreting before the delegate, the Authority or the FCCA. To the extent that the claim was directed to the standard before the delegate or the Authority, the issue was not raised before the primary judge.

37    However, the Minister did identify, from the applicant’s statement provided in support of his visa application, that the applicant referred to an inaccuracy that occurred in his entry interview, namely where he had resided in Bangladesh. However, it is clear from the delegate’s and the Authority’s reasons, that account had been taken of the mistake and the details were correct in each of their reasons.

Proposed ground six:

38    The applicant made no submission directed to this ground. As previously adverted to, consideration has been given to all the material before the Authority and the Authority’s reasons. Further, I have reviewed the material and reasons of the primary judge. I can discern no error in either.

Conclusion

39    For these reasons the applicant’s application to extend time to appeal is dismissed. The applicant will be ordered to pay the first respondent’s costs as agreed or assessed.

Associate:

Dated:    14 March 2025