Federal Court of Australia

DZU19 v Minister for Immigration and Multicultural Affairs [2025] FCA 300

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed.

3.    The appellant 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 appellant is a 41-year-old citizen of the People’s Republic of Bangladesh, who arrived in Australia by boat in January 2013 as an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act 1958 (Cth). In February 2013, the appellant participated in an entry interview conducted by an officer of the then Department of Immigration and Citizenship. On 20 June 2016, the appellant applied for a Safe Haven Enterprise visa (SHEV), and, on 1 August 2019, he attended an interview in relation to that application (SHEV interview). On 28 August 2019, a delegate of the first respondent Minister refused to grant the appellant a SHEV finding that there was not a real chance or real risk he would be harmed should he be returned to Bangladesh. On 2 September 2019, the delegate’s decision was referred to the second respondent, Immigration Assessment Authority for review. The Authority affirmed the delegate’s decision on 27 September 2019, and the appellant sought judicial review of the Authority’s decision in the then Federal Circuit Court of Australia on two grounds: DZU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 452 (PJ or primary judgment). The appellant’s application for judicial review was dismissed by the primary judge.

2    By notice of appeal filed 31 March 2021, the appellant appeals from the primary judgment on four grounds, and seeks for the matter to be “remitted” to the Minister’s delegate for reconsideration. The matter was docketed to me in February 2025. The appellant’s grounds were four-fold:

Grounds of Appeal

The following issues were not focused on by the Delegate, IAA and also by the Federal Circuit Court while making decisions of the Appellant's application:

1.     The applicant was detained for a prolonged period of time and he was barred under Section 46A(1) to apply for any kind of visa onshore is definitely beyond the Jurisdiction of the Department-

2.     The applicant's bar to make an application was lifted on 12 May 2015 which was 2 and a half years after his arrival and detention, which is a huge a procedural unfairness by the Department-

3.     The delegate directly transferred the applicant's protection visa refusal decision to the IAA and the IAA assessed the applicant's application on limited information supplied by the Secretary also constituted procedural unfairness-

4.     The Federal Circuit Court also dismissed the appellant's application without focusing on those procedural and Jurisdictional issues-

3    For the following reasons I can discern no error in the primary judge’s reasons and the appeal must be dismissed.

Background

4    The delegate’s reasons summarised the appellant’s claims for protection in his 2016 SHEV application in the following way:

•    He originates from the village of Chargobindipul, Madaripur District (Dhaka Division) in Bangladesh

•    In Bangladesh, he was involved with the political party, Islami Shashontantra Andolan.

•    Members of the Awami League (AL) threatened him and he fears they will kill him.

•    The authorities failed to protect him in Bangladesh.

•    He relocated to Naryangong District for safety but he was targeted there as well.

•    He was safer when the Bangladesh National Party (BNP) was in power in Bangladesh. After 2008, the AL came to power and his life was in danger.

•    He fears the current AL government. Opposition activists like him are mistreated by the Bangladeshi authorities.

5    The delegate described the additional claims the appellant made three years later in the SHEV interview on 1 August 2019:

(a)    he had been an active supporter of Islami Shashontantra Andolan since he was 14, and attended political meetings of this party once a month;

(b)    the majority of people in his village supported Awami League and this created problems as between himself and the people in his village;

(c)    in approximately 2000, he was attacked by AL members (and was stabbed in the hand) who pressured him to leave ISA and join AL;

(d)    after he arrived in Australia, he supported the Bangladesh National Party and sometimes attended BNP meetings and was involved in a BNP rally in Sydney in 2018;

(e)    he fears he will be tortured or killed by AL supporters/members on return to Bangladesh.

6    The delegate made the following findings:

•    That the applicant was a low-level supporter of Islami Shasontontro Andolan in Bangladesh.

•    That the applicant’s family members were low-level supporters of Islami Shasontontro Andolan in Bangladesh.

•    That, in approximately 2000, the applicant may have experienced some low-level harassment by local members/supporters of the AL in his area of origin due to his support for Islami Shashontantra Andolan (and due to his non-support for AL).

•    That the applicant has not been involved with Islami Shasontontro Andolan since his departure from Bangladesh and he has had minimal contact with party colleagues back in Bangladesh.

•    That he departed Bangladesh lawfully.

•    That the applicant has been a low-level supporter of the BNP since his arrival in Australia.

•    That the applicant would be returned to Bangladesh as a failed asylum seeker.

7    The delegate, thereafter, identified those aspects of the appellant’s claims which she did not accept, being:

•    That the applicant was an active supporter of Islami Shasontontro Andolan in Bangladesh.

•    That, in approximately 2000, the applicant was attacked by a group of AL members/supporters in his village - they pressured him to leave Islami Shashontantra Andolan and support the AL and he was attacked with a knife (his hand was stabbed).

•    Whilst it is possible the applicant may have experienced some low-level pressure from opposition groups such as the AL to support their party, I do not accept that he was seriously harmed by the AL or any other group in attempts to forcibly recruit him.

•    That the applicant relocated from his home village to Naryangong because he feared harm by AL members/supporters.

•    That AL members/supporters were searching for him during the period he resided in Naryangong and they were threatening his family in the village so the applicant decided to leave Naryangong (and Bangladesh) due to his fear of harm.

•    That the applicant would be of adverse interest to the AL or anyone else if returned to Bangladesh due to his political profile (his affiliation with Islami Shasontontro Andolan and the BNP in Australia and consequently, his perceived non-support of AL) or for any other reason…

8    The delegate then considered the appellant’s claims within the context of Australia’s protection obligations, through the prism of the refugee criteria assessment, stipulated by s 36(2)(a) of the Act and relevant country information. The delegate found, based on her assessment of his claims, his claimed fears of harm, and relevant country information (including recent advice from DFAT that there was no evidence of forced recruitment to political parties) that she did not accept that the appellant faced a real chance of serious harm by AL members or its supporters if he were returned to Bangladesh.

9    The delegate also considered the consequences for the appellant of him being returned as a failed asylum seeker and was satisfied that he would not face serious harm as a consequence of having sought asylum in Australia.

10    As a consequence, the appellant was not granted a SHEV because the delegate was not satisfied he was a “refugee” within the meaning of s 5H(1) of the Act nor fell within the criteria for complementary protection under s 36(2)(aa) of the Act.

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    At the beginning of the Authority’s reasons, it summarised his claims for protection, which included an additional claim (not previously raised at the entry or SHEV interview) that over an eight-year period between 2000 and 2008, the AL went to his family home seeking his whereabouts, threatening his family and claiming they would find him and take action against him.

13    Like that of the delegate, the Authority did not accept the appellant’s claims regarding what he had said had occurred when he lived in Bangladesh and as to his fears of harm if returned.

14    The Authority formed the view that his description of events regarding him being targeted and threatened by the AL had changed dramatically over time, that his claims as to alleged continued attempts by the AL to seek him out and threaten him were problematic and were ultimately not accepted: IAA[11]–[12]. The Authority did not accept the voracity of letters of support and ultimately did not accept the truthfulness of the appellant’s claims regarding his past experiences involving the AL: IAA[14]–[15]. As a consequence, the Authority rejected his claims that he was of interest to the Bangladeshi authorities or any other groups or individuals: IAA[16].

15    In relation to the appellant’s claimed involvement with the BNP, the Authority was not satisfied that he had been a truthful witness and was unwilling to accept that the appellant had had any involvement with or support for the BNP following his arrival in Australia, (at IAA[17]–[19]):

17.     At the protection visa interview, the applicant claimed that after his arrival in Australia he has become a supporter of the BNP. He attends meetings, party programs and listens to discussions. He has also attended a protest rally against when the Prime Minister of Bangladesh visited Sydney.

18.     The applicant made no mention of these claims in his protection visa application. At the protection visa interview he stated that he could provide a video of his attendance at the protest rally. The delegate advised him that he had seven days after the protection visa interview to provide this evidence to the Department. No evidence to corroborate these claims was apparently provided to the delegate, and none has been forthcoming since the delegate’s decision.

19.    In light of the delay in their provision and absence of any substantiating evidence, I am not satisfied the applicant has been a truthful witness in regards to these aspects of his claims. I do not accept that the applicant has supported or had any involvement with the BNP since his arrival in Australia. I am not satisfied that he has attended any BNP meetings and/or activities including any protests/rallies since his arrival in Australia. Nor am I satisfied that the applicant is a supporter of the BNP as claimed.

16    The Authority did not accept the appellant’s claimed fear of harm on return as a result from his having supported or being involved with the ISA: IAA[20]–[22]. Whilst the Authority accepted that he had been a supporter of this organisation when living in Bangladesh, the Authority noted that the appellant was not claiming that he had maintained any support of this organisation since leaving Bangladesh. The Authority then considered country information as to the history of the ISA and could find no independent information in the review materials regarding the specific situation of its members or supporters: IAA[23]. It did note, however, that there had been a DFAT advice in 2019 regarding generalised risk of arrest and physical violence associated with supporters of opposition political parties and auxiliary organisations: IAA[24]. The Authority ultimately concluded (at IAA[29]–[31], [36]):

29.     I have rejected the applicant’s claims regarding his past experiences of harm in Bangladesh and that he is a supporter of and has been involved in any activities including with the BNP since his arrival in Australia. As discussed above, I am not satisfied the applicant is of adverse interest to the Bangladeshi authorities or AL or any other groups or individuals arising from his past support to Islami Shasontontro Andolan. Nor has he claimed that he would support and/or be involved with this group on return, and I am not satisfied that he would. There is no evidence that he has been convicted of war crimes in absentia. Nor is there is any independent country information in the review material to suggest that absent any other concerns, Bangladeshis who sought asylum unsuccessfully and/or who have spent a prolonged period of time outside of Bangladesh are harmed on return, and I am not satisfied that there is a real chance he would be on these bases.

30.     Having regard to the applicant’s individuals circumstances and the country information before me, I am not satisfied the applicant faces a real chance of harm as a returning failed asylum seeker with his background now or in the reasonably foreseeable future.

31.     I am not satisfied that the applicant has a well-founded fear of persecution.

…

36.    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

17    As a consequence of these findings, the Authority affirmed the delegate’s decision.

The primary judgment

18    By application filed 15 October 2019, the appellant sought judicial review of the Authority’s decision before the primary judge on two grounds.

19    By the first ground, the appellant contended that the Authority had failed to act in accordance with the requirements of s 473CB of the Act, had denied him procedural fairness and natural justice and had made its decision on the basis of the limited information referred to it by the Secretary.

20    The primary judge found that the Authority considered the material provided to it by the Secretary (and as required in accordance with s 473CB) and the adverse findings it made were open to it: PJ[41]–[42]. The primary judge reasoned as follows (at PJ[41]–[44]):

41    Ground one broadly asserts that the Authority failed to identify and act in accordance with the requirements of s 473CB of the Act and denied the applicant procedural fairness and natural justice. There is nothing in the decision record of the Authority to indicate that it acted otherwise than in accordance with s 473CB of the Act. At paragraph 2 of its decision the Authority specifically states that it had regard to the material given to it by the Secretary under s 473CB of the Act. A review of the decision indicates that the Authority was aware of and accurately summarised at paragraph 4 of its decision, the applicant’s claims. These claims were then further discussed in the body of the decision, including, consideration of two letters provided in support of the applicant and his other evidence. No criticism can be made of the way the Authority went about its task and to the extent that the first ground suggests there was a failure to comply with the relevant requirements of the Act, this cannot be sustained.

42    To the extent that the ground complains that the Authority made adverse credibility findings, the Court is satisfied that the Authority’s findings were open to it on the evidence of the material before it and the reasons it gave. Those findings were not tainted by any failure to afford procedural fairness, or reaching a finding without a logical or probative basis of unreasonableness: (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [83]). The Court agrees with the first respondent that there was nothing controversial in the Authority’s findings, that inconsistencies in the applicant’s evidence gave rise to concerns as to his credibility.

43    There is no requirement in the Act that the Authority is required, as is asserted by the applicant, to as far as reasonably practical, to ensure the applicant understands why information and questions were relevant to the review. Section 473DA of the Act makes it clear that the provisions of Division 3, together with s 473GA and s 473GB of the Act are an exhaustive statement of the requirements of the natural justice hearing rule, in relation to reviews conducted by the Authority. There is no material before the Court to indicate that any of the relevant provisions of the Act were in any way breached by the Authority in the conduct of the review.

44    There was no new information before the Authority that enlivened the provisions of s 473DE of the Act which required the Authority to give information that it considers relevant to the applicant, to explain why this new information was relevant and invite the applicant to comment on it.

21    By ground two, the appellant claimed, in a way which overlapped with ground one, that he had been denied procedural fairness and natural justice by reason of the following:

The applicant arrived in Australia on 30 January 2013 as an unauthorised maritime arrival and applied for his protection visa on 20 June 2016. The applicant was not at all aware of or made aware that the departmental refusal decision would automatically be transferred to the IAA for review process instead of going to the Migration Tribunal. Again, the IAA failed to invite the applicant to hearing prior to making the decision of the applicants review application and again the IAA did not review the applicant’s application in a judicial manner and also the IAA failed to comply with the requirements of the Migration Act 1958 in making decision of the applicants review application. Further, the applicants review application was not considered for the purposes of s36(2)(aa) as defined in s36(2A) of the Act whereas the applicant fears significant harm on his return to Bangladesh in the near future. The applicant believes he was denied procedural fairness and natural justice for his SHEV subclass 790 application.

22    The primary judge found that the Authority complied with its obligations to provide procedural fairness to the appellant (at PJ[43]–[45]) and rejected the appellant’s second ground, on the following bases (at PJ[45]–[49]):

45    Ground two is a broad assertion of the denial of procedural fairness and natural justice. The applicant contends that he was not aware or made aware that the Departmental refusal decision would be automatically transferred to the Authority for a review process instead of going to the Refugee Review Tribunal (now the Administrative Appeals Tribunal). The applicant complains that the Authority failed to invite him to a hearing, did not review his application in a judicial matter and failed to comply with the requirements of the Act in making the decision. No precise particulars are provided, other than broadly-based assertions. As set out above, the Court can find no material within the decision record which indicates that the relevant provisions of the Act were not complied with and that, so far as it is applicable, all relevant procedural fairness requirements were complied with.

46    If the applicant’s assertion is that the Authority erred in failing to find that he had a well-founded fear of persecution because he came to Australia by boat and the socio-political situation in Bangladesh is unstable, these grounds have no foundational basis.

47    The Authority considered the applicant’s claims as to why he left Bangladesh but rejected them on the basis of inconsistencies which in the Authority’s view, demonstrated that he was not a truthful witness. The Authority also considered the applicant’s involvement with opposition political parties in Bangladesh, but was satisfied that his low level involvement would not give rise to a real chance of harm upon his return. The Court is satisfied that the Authority did consider the applicant’s claims but rejected them.

48    The applicant appears to suggest, although it cannot be certain, that the Authority did not properly consider the complimentary protection requirements under s 36(2)(aa) of the Act. This assertion cannot withstand close scrutiny. At paragraphs 33 to 34 of the decision record, the Authority properly instructed itself as to the relevant criteria that needed to be satisfied, in order for complimentary protection criterion to be met.

49    The Authority legitimately relied upon its previous factual findings that the applicant did not face a real chance of harm for any of his claim to fears and that real risk involve the same standard as a real chance. The Authority was entitled to give such weight as was appropriate, subject to the principal of legal unreasonableness, to the evidence that was before it. There is nothing remarkable in the conclusion at paragraph 36 of its decision, that there were not substantial grounds for believing is a necessary and foreseeable consequence of being returned from Australia that there was a real risk the applicant would suffer significant harm.

23    The primary judge found that the appellant was otherwise inviting the court to undertake an impermissible review of the merits of the Authority’s decision (at PJ[50]), that there was no evidence that he had engaged a migration agent to prepare the SHEV application; and, (at PJ[54]) that because the appellant was unrepresented, the court had carefully reviewed the legality of the Authority’s decision as a whole, but was unable to find any jurisdictional error that the appellant did not articulate to the court.

The appellant’s submissions at hearing

24    The appellant filed in Court a short, written submission dealing with the discretion to grant leave to raise a new point on appeal. The submission restated the well-known principle that there remains an ability to raise new matters on appeal and while generally discouraged, that discretion ought not automatically deem new grounds improper grounds and refuse leave, rather that the merit of the additional grounds required consideration. The appellant submitted baldly that an unidentified “point” met the necessary criteria for leave and was integral to a fair hearing.

25    Otherwise, the appellant chose not to expand on the appeal grounds and relied upon the grounds themselves and this short, written submission. Given this, the Court asked that the Minister make submissions with respect to each of the grounds after the interpreter had read each of the appellant’s grounds to the appellant. The Court informed the appellant that he would be given a further opportunity to make submissions with respect to the Minister’s submissions addressing each of his grounds. The appellant thereafter made a generalised submission that he will be persecuted in his country and this was the reason why he is still in Australia, twelve years after his arrival and has not returned to his country.

Consideration

Leave is refused for the appellant to rely on grounds one and two

26    By grounds one and two, the appellant contends the following:

1.     The applicant was detained for a prolonged period of time and he was barred under Section 46A(1) to apply for any kind of visa onshore is definitely beyond the Jurisdiction of the Department-

2.     The applicant's bar to make an application was lifted on 12 May 2015 which was 2 and a half years after his arrival and detention, which is a huge a procedural unfairness by the Department-

27    These grounds bear no resemblance to any of the arguments raised before the primary judge. The appellant requires leave of the Court to raise grounds not raised below. 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]), the exercise of the Court’s discretion to grant leave in these circumstances is informed by s 37M of the Federal Court of Australia Act 1976 (Cth), where the predominant consideration is the interests of justice and that the merits of the proposed new grounds are an important consideration.

28    The appellant made no submission with respect to these grounds (save for the generalised submission referred to above). They appear to suggest some denial of procedural fairness arising by operation of s 46A(1) which precluded him from applying for a protection visa. There was no evidence before the Court below or on appeal as to the length of his detention. By operation of s 46A(1), any application for a visa made by an unauthorised maritime arrival is invalid. The Minister thereafter decided, as it was open to him, pursuant to s 46A(2), to lift that bar and invited the appellant to make a protection visa application. As submitted by Mr Gao, for the Minister, as to whether a person’s detention is justified, needs to be assessed by reference to whether the person held a visa at the relevant time. The Act authorises lawful detention in a number of circumstances. These two grounds do not identify any jurisdictional error in the Authority's decision nor error in the primary judge’s reasons. In any event, the fact remains that the appellant was invited to, and subsequently applied for, a SHEV. For these reasons, leave to raise grounds one and two is refused.

The other grounds of appeal lack merit

29    By ground three, the appellant contends that he was denied procedural fairness by reason of the delegate directly transferring her refusal decision to the Authority and the Authority assessed his application on the limited information provided by the Secretary.

30    Accordingly, ground three appears to assert the existence of jurisdictional error vitiating the Authority's decision. It is assumed that the appellant’s challenge is that the primary judge erred in not finding that the appellant was denied procedural fairness by reason of the Authority acting on “limited information supplied by the Secretary”.

31    This ground has no merit. As found by the primary judge, the Authority’s review process is a limited form of review and it was not obliged to consider any more material than it did. The legislative scheme obliges the Authority to conduct its review on the review material provided to it, pursuant to s 473CB, without accepting or requesting new information and without interviewing the applicant: s 473DB(1). The Authority did in fact, in the information, it provided to the appellant, inform him of the limited ability he had to put on new information and to provide a submission. The appellant did not take up this opportunity. This was in circumstances where, on the evidence, the appellant was represented by a migration agent, as at 10 September 2019 (where the request had been made on 3 September 2019), that agent corresponded with the Authority on 10 September 2019, and provided no evidence or submission before the Authority’s decision was made on 27 September 2019.

32    By ground four, the appellant contends that the primary judge “also” dismissed his application without focusing upon “procedural and jurisdictional issues”. The appellant made no submission as to what those “procedural and jurisdictional issues” are. If the reference to “procedural issues” was intended as a reference to the complaint in grounds two and three, and the reference to 'jurisdictional issues' is a reference to ground one, then for the reasons given, this ground must fail.

Conclusion

33    By reason of all of the matters referred to above, the appeal must be dismissed and the appellant ordered to pay the first respondent’s costs.

Associate:

Dated:    2 April 2025