Federal Court of Australia

EZB17 v Minister for Immigration and Multicultural Affairs [2025] FCA 433

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant to pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    This is an appeal from a decision in the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) delivered on 8 August 2022. The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority, the second respondent. The Authority had affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs (the first respondent) to refuse the appellant’s application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).

Background

2    The appellant is a citizen of Bangladesh. He is an ethnic Bengali and a Sunni Muslim. He arrived in Australia on 24 March 2013 as an unauthorised maritime arrival. He attended an Irregular Maritime Arrival Entry Interview on 7 April 2013 with an officer of the Department of Immigration and Citizenship, and a Biodata Interview on 8 April 2013.

3    On or around 17 May 2016, the appellant applied for a protection visa. He submitted a statutory declaration in which he claimed that he feared harm in Bangladesh due to his and his father’s involvement with the Jamaat-e-Islami party. He claimed that his father was the general secretary of the party’s Raipur Union. He asserted that he was falsely charged with murder after being attacked by Awami League supporters in 2012.

4    On 21 December 2016, the appellant attended a protection visa interview. On 13 January 2017, his application was refused by a delegate of the Minister. As the delegate’s decision was a “fast track reviewable decision” (as defined in s 473BB of the Migration Act 1958 (Cth)), it was referred to the Authority pursuant to s 473CA of the Migration Act for review under Pt 7AA of the Migration Act on 18 January 2017. On 18 October 2017, the Authority affirmed the delegate’s decision.

The Authority’s decision

5    The Authority considered that the appellant’s responses during the protection visa interview “demonstrated no knowledge of the kind of day-to-day matters” of the Jamaat-e-Islami party or the Bangladesh Nationalist Party (BNP) despite the appellant’s written claims which “presented him as having a close involvement in the local party politics of not just Jamaat but its wider coalition activities with the BNP”.

6    The Authority also pointed to inconsistencies in, and implausible aspects of, the appellant’s claims, including his claims of going into hiding at his father’s sister’s house after another attack by members of the Awami League, the location of the appellant’s family members, and his claim that his father had presented himself to court and had been jailed in around 2016.

7    The Authority expressed doubt as to the credibility of documents provided by the appellant in support of his application for a protection visa. These documents include an English translation of a First Information Report which was said to outline the murder charge, copies of a translation of a Notice to Accused to the appellant to attend court, and a letter from a doctor advising that the appellant had received treatment in 2011 for various injuries supposedly sustained during the Awami League attack which the Authority found were inconsistent with the injuries described by the appellant in his protection visa application. Given the appellant was unable to produce the original copies of the First Information Report and Notice to Accused, the inconsistencies in the medical letter, and the country information regarding the ease with which fraudulent documents may be obtained in Bangladesh, the Authority determined to give these documents “no significant weight”.

8    The Authority went on to state at [23] of its decision:

Such evidence does not overcome the serious doubts raised by the manner in which the applicant’s evidence proved unconvincing, and sometimes implausible, when he was asked to explain or expand upon the details provided in his prepared statement. This, in concert with the fact that the applicant had at his entry interview stated that neither he nor his family had ever been involved in any political activities, seriously undermines the credibility of the applicant’s claims.

9    The Authority concluded at [24] of its decision:

I do not accept that the applicant, or his father, were ever involved in Jamaat or … that they were ever Jamaat supporters. I do not accept that the applicant would have any interest in supporting or involving himself with Jamaat upon return to Bangladesh. I do not accept that that the applicant or his father have ever been harassed or assaulted by Awami League supporters, or that he or his father have been accused of murder or any other crimes or that the applicant is wanted in this regard, or that the applicant’s father has presented himself to a court and been imprisoned in such a regard. I am therefore not satisfied that the applicant would face a real chance of harm of any kind in Bangladesh for reason of being, or of being perceived to be, a Jamaat supporter or the son of a Jamaat supporter, nor am I satisfied that the applicant would face a real chance of being arrested, convicted and jailed on a false charge of murder brought against him by the Awami League for political reasons, or of his being beaten by the police or the Awami League or any other actor in such a regard.

10    The Authority considered, and was not satisfied by, the appellant’s claims at his entry interview that he would be unable to make a living or support himself and that he may be jailed or killed if he returned. The Authority was not persuaded by the appellant’s claims that he would be harmed by government strikes or hartals.

11    The Authority was not satisfied that the appellant would face a real chance of serious harm if he were to return to Bangladesh under s 36(2)(a) of the Migration Act. The Authority was also not satisfied that the appellant faced a real risk of significant harm under s 36(2)(aa) of the Migration Act.

The proceedings below

12    On 15 November 2017, the appellant filed an application for judicial review of the Authority’s decision.

13    The appellant relied on three grounds. The first ground contended that the Authority “failed to consider each integer of [his] claim or failed to take into account the whole of the oral and written evidence”, as well as “recent information about the atrocities committed by the Awami League”. The primary judge was not satisfied that the appellant had identified any specific integer of his claims or evidence that the Authority had failed to take into account. The primary judge determined that the Authority’s decision not to place significant weight on the First Information Report and Notice to Accused was available to it on the evidence. Her Honour sought to explain to the appellant that the Authority had committed no error in failing to consider evidence that was not available to it at the time of its decision. Her Honour also explained that she was unable to consider the merits of the Authority’s decision, which appeared to be the aim of ground one.

14    The second ground argued that the Authority “discarded all the written submission without giving any solid evidence of cumulative credibility concern” in its reasons. Again, the primary judge considered that this ground sought that the court engage in merits review, and that the Authority gave reasons which were open on the available evidence.

15    The third ground contended that the Authority failed to apply s 36(2)(aa) of the Migration Act correctly and did not follow the real risk test. The primary judge was satisfied that the Authority correctly applied this test at [30] and [32] of its decision and that it was open for it to rely on earlier factual findings do to so, citing CBN17 v Minister for Immigration and Border Protection [2018] FCA 788 at [31]. The primary judge found that the appellant did not provide any evidence to support his additional submissions that the interpreter services provided at his interviews were inadequate.

16    The primary judge dismissed the application with costs.

Appeal to this Court

17    The appellant lists four grounds of appeal in his Notice of Appeal to this Court. These are summarised as follows:

(1)    Ground 1 contends that the Authority failed to consider the merits of the appellant’s case, which resulted in “crucial factors” of his case not being assessed against the relevant legal criteria;

(2)    Ground 2 contends that the Authority failed to give adequate weight to his psychological state at the time of the protection visa interview which resulted in apparent inconsistencies in his responses;

(3)    Ground 3 contends that the Authority dismissed evidence such as his membership to a particular political group without a reasonable ground; and

(4)    Ground 4 contends that the Authority took into account irrelevant and subjective considerations in coming to its decision.

18    The appellant seeks orders that the primary decision be set aside and that the matter be remitted to the FCFCoA for re-hearing.

19    The appellant was not represented, and appeared in person through an interpreter. He had not filed any written submissions. The first respondent’s written submissions were translated for him by the interpreter prior to the hearing. The arguments set out below are taken from his oral submissions made through the interpreter. I have also taken into account the grounds set out in his Notice of Appeal as being part of his submissions.

20    The first respondent submitted that no errors were apparent in the decision of the primary judge and the Authority, and that the appeal be dismissed with costs.

Disposition

21    As the first respondent correctly pointed out, none of the grounds of appeal was raised in the present terms before the primary judge. In addition, some of the grounds raised are requests, in effect, for merits review of the Authority’s decision. None of the grounds addresses the findings of the primary judge (except impliedly in so far as the primary judge determined that the Authority’s decision was correct).

Leave to advance new grounds on appeal

22    At the hearing, the appellant was not able to engage with the issue of whether leave was required and why leave should, on his case, be granted. His explanation was that “when I was … in detention centre, I didn’t understand anything about law”. He said this was made additionally difficult by the hardship he endured on the boat to Australia, after which he was “like a newborn baby being born again”.

23    Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so. Some relevant considerations were set out in Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134 at [23] (Nicholas, Thomas and Downes JJ) as follows:

(1)    whether there is an adequate explanation for the failure to raise the ground below;

(2)    the merits of the proposed ground;

(3)    the “potential vindication of a just outcome” and the gravity of the consequences of the decision not to permit the ground to be advanced;

(4)    any prejudice to the respondent if the new ground is allowed to be advanced;

(5)    whether the new ground raises a matter that could have been met by evidence.

(Citations omitted.)

24    The appellant has not provided any explanation for the failure to raise those grounds of appeal below. This tells against leave being granted. Mr Dennis, who appeared for the first respondent, agreed in oral submissions that Grounds 1, 3, and 4 could be seen as grounds that generally seek to displace the matters found by the primary judge, but said that Ground 2 was not a matter which was raised before the primary judge. As the appellant was not able, in the absence of legal representation, to provide any assistance to the Court on this point, it was agreed that I would hear submissions on the grounds of appeal and determine any question of leave, along with the substantive merits of the appeal, on each ground.

25    Accordingly, I will deal with Ground 2 first, as the other grounds had at least some interconnection with the grounds raised before the primary judge.

Did the Authority fail to have regard to the appellant’s psychological state?

26    The appellant’s submission was that he was psychologically unwell, and that he was unable to properly provide evidence at the two interviews referred to in [2] above and, I infer, the interview referred to in [4] above.

27    The appellant noted that “I’m not a person who knows about the law or a lawyer ... or to speak in a legal language, but I’m [an] ordinary person”. He said that he gave all the medical documents that he had to the Authority, and sought to show the Court some scars he said bore out his claims of being attacked. He said, “I don’t have a video footage that I could have shown them and make them believe me”.

28    In relation to the psychological issues raised in Ground 2, he said he wasn’t in good health mentally at the time of his arrival and interviews. He said that he was psychologically not well when he arrived, and that he had an “interview in detention…within two, three weeks of coming here”. When asked what information as to his psychological state he had given to the Authority, he said that he couldn’t produce anything physically, and that he wanted to raise now “what I was going through”.

29    The first respondent contended that the Authority was not obliged to consider the appellant’s psychological state in circumstances where this issue had not been raised previously and no evidence as to the appellant’s psychological state has been provided. It was submitted that there was no evidence provided to the first respondent at any stage throughout the protection visa application process, or before the Authority or the Court, that demonstrates that the appellant raised any concerns about his psychological state.

30    From my review of the evidence and in particular the admission of the appellant that he did not bring to the attention of the Authority (nor of the primary judge) the alleged psychological impairment he was suffering, I conclude that it is not an error for the Authority not to have taken it into account.

31    In any event, from my review of the entirety of the Authority’s reasons, it did not act inconsistently with an understanding that the appellant may have been distressed at the time of his initial interviews. The Authority noted the plausibility of a recently arrived applicant for a protection visa to be “unwilling to be forthcoming” about particular matters ([22] of the Authority’s decision). However, where the appellant had not provided any detail of his psychological state in any interview leading up to the Authority’s decision, there is no error in the Authority not considering that state.

32    Ground 2 must fail. As it lacks sufficient merit, leave would not be granted.

Did the Authority fail to identify crucial factors and the relevant legal criteria?

33    I asked the appellant to identify what the crucial factors and the relevant criteria were which arose in relation to Ground 1. He said that he had told the interviewers “whatever I had gone through, I told them, but they didn’t believe me.”

34    The first respondent argued that Ground 1 cannot succeed as the appellant had not identified any “crucial factors” and that in any event the Authority’s reasons “comprehensively considered the merits of the appellant’s claims”. The first respondent pointed to the fact that the appellant had not identified any particulars that would assist the Court in identifying any error.

35    As can be seen from the above, the appellant was unable to identify the “crucial factors”, and the “relevant legal criteria” said to base this ground of appeal. Because of this, I reviewed the way in which the Authority reached its decision. The delegate appeared to accept some of the contentions of the appellant and rejected others. The Authority is not required to accept, uncritically, the entirety of an appellant’s claims: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [24] (Perry J).

36    The argument that the Authority has failed to take into account a relevant consideration will only be made out if the Authority failed to take into account a consideration which it is bound to take into account in making the decision: see Greenpeace Australia Pacific Pty Ltd v Chief Executive Officer of the Australian Radiation Protection and Nuclear Safety Agency (2002) 125 FCR 186; [2002] FCA 1144 at [69] (Beaumont J) citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J, Gibbs CJ and Dawson J agreeing). I am not satisfied that the Authority failed to take into account considerations which it is bound to take into account in making its decision based on the subject matter, scope and purpose of the Migration Act.

37    Ground 1 is, in effect, an impermissible request for merits review, and, where no specific factors other than a lack of belief in the appellant’s case was raised, cannot succeed. Were leave to raise this as a new ground necessary, it would not be granted.

Did the Authority take into account irrelevant considerations, or fail to take into account relevant ones?

38     Grounds 3 and 4 are, essentially, that the Authority failed to take into account a relevant consideration (membership of a particular political group) and took into account irrelevant ones. Neither of these grounds was raised in terms before the primary judge, although the “Particular” expressed in the ground of appeal before her Honour raised the appellant’s membership of the family’s “long-time political association with the Jamaat-e-Islami”.

39    The appellant submitted that Grounds 3 and 4 should be seen in the light of the “political harassment that I went through in Bangladesh”. He submitted that the Authority did not believe him, and he “wonder[ed] why they did not believe my problems when I told them”. He made a number of submissions as to the current political situation in Bangladesh, but the main concern was that he had not been believed. When I raised with the appellant what evidence he suggested had not been taken into account in Ground 3, he said:

I didn’t have a position in the party, but I was a worker, and I told them so orally, but I didn’t have a document to show them that this is what I was doing, because I was not on any position. But my father was involved in politics, and because of – I tried to save him, I became a victim.

40    He was then asked him to confirm what particular factors were not taken into account by the Authority. Apart from what is cited above, he was unable to identify them, and said:

by all that I mean that they did not believe … if I didn’t have the risk to my life, why would I still take a 100 per cent risk to my life, come by boat all the way to Australia, leaving everything behind just to protect my life?”

41    The appellant indicated that his approach to Ground 4 was the same – that the Authority didn’t believe him.

42    The appellant also made some submissions regarding his current political activities in Australia.

43    In response, the first respondent submitted that the Authority’s findings as to the appellant’s involvement with the Jamaat-e-Islami party were not irrational or unreasonable. This ground was merely reflective of the appellant’s his disagreement with the Authority’s findings, which did not amount to jurisdictional error. The Minister submitted that the Authority comprehensively assessed the appellant’s claims and in circumstances where the substance of his claims were dismissed, was not required to go further to identify any social group of which the appellant might have been a member.

44    Finally, the first respondent pointed out that the fourth ground of appeal does not identify any “irrelevant and subjective considerations” and none are apparent from the primary judge’s reasons. Again, it was said to be a ground seeking “impermissible merits review”, and, if it were to be construed as an allegation of bias, there was no evidence which would support that allegation.

45    The appellant’s submissions as to these grounds are telling – “I don’t know why they didn’t believe … me”. Where the Authority has considered the grounds raised by the appellant, and made findings as to his credibility and rejected the core of his claims, and where the primary judge was asked, in the main, to deal with matters such as specific documents rejected by the Authority which were not raised here, the grounds do not reach the level of demonstrating jurisdictional error. There is nothing in the Authority’s decision to indicate that it did anything other than assess the appellant’s eligibility for a protection visa by reference to the facts and matters put to it by the appellant, and the appellant was unable to identify any part of the decision that indicates otherwise.

46    Grounds 3 and 4 do not demonstrate a jurisdictional error, and while phrased in the language of judicial review, are in fact based on the appellant’s submission that he should have been believed and that the Authority should have accepted his account. In those circumstances, the appeal grounds must fail and, if leave were required, it would not be granted.

Orders

47    The appeal should be dismissed with costs, as agreed or taxed.

Associate:

Dated:    5 May 2025