Federal Court of Australia

FDD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 435

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to file a notice of appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    On 19 February 2021, the Federal Circuit Court of Australia dismissed the applicant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the Authority): FDD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 175 (Judge Driver).

2    The Authority’s decision had affirmed a decision of a delegate of the first respondent (the Minister) not to grant the applicant a Safe Haven Enterprise Visa (SHEV).

3    The applicant seeks an extension of time to file a notice of appeal against the judgment of the primary judge.

4    A delay in this Court of nearly three years before the matter was allocated to a judge is explained by a backlog of migration cases involving self-represented litigants that were unable to be heard in-person during the COVID-19 pandemic and are still making their way through the Court.

5    The applicant is self-represented. He filed written submissions and also made oral submissions with the assistance of an interpreter.

6    Rule 36.03(a)(i) of the Federal Court Rules 2011 (Cth) requires that a notice of appeal must be filed within 28 days after the date on which the judgment being appealed from was pronounced. The applicant’s application for an extension of time was filed on 23 March 2021, four days out of time. Under r 36.05, the Court has a discretion to extend the time for the filing of the notice of appeal.

7    The factors relevant to the discretion to grant an extension of time include the length of the delay; the explanation for the delay; any prejudice to the administration of justice as a result of the delay; and the prospects of the applicant succeeding in the application or the strength or weakness of the case: see Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [40].

8    The applicant deposes that the reason for his delay was that, “I was ill and was not able to lodge an appeal within the statutory time frame”. There is no medical evidence to support that assertion. In his submissions, the applicant also blamed a lawyer who was apparently representing him at the time, but has not explained how the lawyer contributed to the delay. I do not accept that the applicant has provided any satisfactory or reasonable explanation for his delay.

9    However, the Minister accepts that, as the delay is short and the extension of time would cause no prejudice, the merits of the proposed appeal are likely to be determinative of the application.

10    The grounds set out in the draft notice of appeal are as follows:

Ground One:

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.

Ground Two:

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.

Ground Three:

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.

Ground Four:

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.

Ground Five:

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

Ground Six

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

(Errors in original.)

11    The applicant’s written submissions state, relevantly:

Grounds Of Appeal:

Grounds One:

AUTHORITY’S DECISION- Paragraph 6

Grounds One:

I came here to Australia from Malaysia via Indonesia by boat on 2013. The journey was very dangerous in the sea. When I arrived, I was mentally disrupted and shocked. I couldn’t express myself completely because out of fear and depression.

This is not a new claim. I consider it as saying second time.

Grounds Two:

Paragraph 7

The decision was affected by jurisdictional error. I was a member of BNP not sympathiser or low-level supporter of the BNP. I joined BNP as a volunteer member. After good performance and activities, BNP gave me their full membership (2009-2012). I couldn’t supply any evidence of my political involvement with BNP because there was no one over there to issue the document since every local leader was in hiding.

I claimed that spending two years hiding in Tangail city but authority suggest it was not raised prior to the Interview. But I claimed it SHEV interview (Part 2, Section 61, The city name was misspelled and entered incorrectly). I have been working there in secret for two years ,2010 and 2011. I spent nine days hiding in Dhaka as well (Mentioned in Safe Haven Enterprise Visa application, Form No 790c, Question No.- 93 and Induction Interview Part 1, Question 62) So, this not a new claim.

I came here to Australia from Malaysia via Indonesia by boat on 2013. The journey was very dangerous in the sea. When I arrived, I was mentally disrupted and shocked. I couldn’t express myself completely because out of fear and depression. That’s why I said ‘NO’ to the question in the interview of whether I had been associated or involved with any political group or organisation, or involve in any activities or protests against the government.

Grounds Three:

Paragraph 8

The decision was affected by jurisdictional error. Because I didn’t know that I can make such a claim to UNHCR in Malaysia to seek assistance form them. Moreover, Malaysia refused to give me working visa. If I had knew, definitely I wouldn’t take the frightening and dangerous boat journey to Australia.

One more issue in that paragraph is “The Authority did not accept the appellant had tried to report any assaults or threats to the police.”

In reality, I did but police didn’t take it as a written complaint because the police were favouring the ruling party ‘Awami League’. So, I don’t have any proof for that.

Grounds Four:

Paragraph 10 (Notice of Filing, Before The federal Circuit Court, Page 3)

The decision was affected by jurisdictional error. Because I clearly said (Induction Interview Part 1, Question 33) that They would probably kill me if I returned. They asked money from me since I refused to give, they wanted to kill me. But my life and safety were more essential than money in this situation.

Grounds Five:

Paragraph 15 (Notice of Filing, Before The federal Circuit Court, Page 3)

I might be sick in that time. I can’t remember. But the whole process was conducting by my lawyer. Most probably it delayed because of the lawyer. He knew the time frame. But I really appreciate that you have consider my appeal for hearing.

Conclusion:

I believe that the authorities took advantage of my two years of hiding in Tangail and my nine days of concealment in Dhaka. In addition, my life was in danger. The authority mostly emphasizes “new information” or “new claims,” which is also entirely not right.

According to the authorities, the political group was the target of the attack, not me. However, they attacked me by destroying my business. This is proof that they attacked / targeted. That’s why I believe that my submission should be reviewed again sincerely. I would be very grateful if you could give me that chance.

I apologize for any errors or mistakes in my submission.

(Errors in original.)

12    In his oral submissions, the applicant’s focus was on asserting that the Authority ought to have accepted his account of the events that led him to come to Australia and his explanations concerning the discrepancies and inconsistencies identified by the Authority. The applicant also submitted that the Authority had failed to consider his claim that he had fled to the city of Tangail and then to Dhaka as a result of persecution by supporters of the Awami League (the AL).

13    The Minister submits that the applicant would require leave to raise the grounds set out in his proposed notice of appeal because they were not argued before the primary judge. The Minister also submits that such leave would be refused because the grounds are without merit.

14    The Authority summarised the applicant’s claims at [8] of its reasons for decision as follows:

•    He is a citizen of Bangladesh, born in Tangail District, Dhaka Division in 1988 and remained living in Bangladesh until 2012.

•    He was involved with the Bangladesh Nationalist Party (BNP) from 2009 onwards. He assisted as a volunteer field worker together with friends helping to set up facilities for BNP meetings, by collecting and setting up tables, chairs and sound equipment and putting up posters advertising the meetings. As a result he suffered political harassment and death threats and attempts to kill him from the AL party, who try to destroy all opposition party leaders, members and supporters.

•    He was beaten up mercilessly by AL supporters and workers once when returning home from a party meeting, and another time was attacked during a peaceful party rally when he was beaten and left by the side of the road.

•    In approximately 2010 he commenced a construction material supply business. As part of political harassment of him, AL workers and supporters wanted to destroy his business and demanded he pay them money. He refused, and they made threats to kill him and tried several times to kill him.

•    He and his family tried to report to the local police but they refused to take a General Diary (GD) complaint saying that they could not accept any complaint against the government, AL members. The police illegally support the AL in its harassment of opposition party supporters.

•    He moved to live in Dhaka for his safety but was identified there by AL workers and they made threats to kill him.

•    He flew to Malaysia in about August 2012, travelling on his passport. After several months there and unable to obtain a work visa in Malaysia he travelled to Australia via Indonesia by boat arranged by a people smuggler, arriving in June 2013.

•    He will be harmed and mistreated in Bangladesh by the AL government, its politicians and party members and supporters and will not be afforded any protection by the police or courts as they do the bidding of the government. There is nowhere in Bangladesh that he can be safe from the AL as they have a strong network throughout the country.

15    The Authority’s findings included the following:

    The applicant considerably embellished his claims of BNP involvement and its consequences to strengthen his claims for protection. The Authority did not accept that he was a member of BNP or an activist for BNP.

    The applicant’s SHEV interview evidence did not support his claims that he had been assaulted or that attempts had been made to kill him because of his BNP involvement. The Authority did not accept that the applicant was personally targeted in, injured in or a participant in any violent or physical clashes with AL supporters, nor that he attended or was involved with any BNP protests, demonstrations or strikes. The applicant gave conflicting evidence about when and where he was threatened by the AL.

    The applicant’s claim of having lived in hiding for two years in Tangail city was not raised prior to the SHEV interview and, in fact, the applicant had stated that he lived for the whole time in his home village. The Authority also did not accept that he had moved to Dhaka for his safety before leaving Bangladesh.

    At his arrival interview in June 2013, the applicant made no claim of any BNP involvement, or of any harm or threats to kill him because of BNP involvement. He only claimed that the AL had demanded money and threatened to kill him if he did not pay because he was perceived to have a good business. The applicant’s explanation for not mentioning his claimed BNP involvement at the arrival interview was not credible.

    The applicant’s evidence about the claimed extortion demand had significant inconsistencies.

16    The Authority summarised its findings as follows:

18.    I found the applicant’s evidence on his claims of being threatened with harm or death by AL leaders, supporters, members or any others, or extorted by them, because of any BNP involvement to be significantly inconsistent, unconvincing and lacking credibility. I do not accept that the applicant moved to live in hiding in Tangail city because AL members, leaders or cadres or any other persons were threatening him. I do not accept that any such persons made threats to him, or to his parents about him, due to being involved with the BNP. I do not accept that the applicant was extorted or threatened with demands for money by any AL supporters or members at his workplace because of any BNP involvement. I do not accept that any AL leaders in Tangail city notified the AL leaders in the applicant’s village of D of his whereabouts in mid-2012, so that he could be killed. I do not accept that the applicant moved to Dhaka for safety, nor do I accept the written claim that he was there identified by AL workers who threatened to kill him.

17    The Authority concluded:

Well-founded fear of persecution

…

28.    On all the evidence and information before me I am not satisfied that the applicant faces a real chance of harm in Bangladesh upon return or in the reasonably foreseeable future on the basis of sympathy or low-level support for the BNP.

29.    The applicant does not have a well-founded fear of persecution within the meaning of s.5(J)(1) of the Act.

Refuge: conclusion

30.    The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a).

31.    A criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

Real risk of significant harm

…

33.    I have found that there is not a real chance that the applicant would face harm upon return to Bangladesh on the basis of being a sympathiser or low-level supporter of the BNP, or having in the past attended and helped set up facilities for some previous BNP meetings or from any combination of those factors. Noting that the Full Federal Court has set out that the “real risk” test for complementary protection is the same standard as the “real chance” test, and based on the same information, and for the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm for those reasons.

34.    I am not satisfied that there is a real risk of the applicant suffering significant harm based on the combination of his profile and circumstances.

Complementary protection: conclusion

35.    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).

18    The Authority had earlier observed at [5] – [7] that the submissions made by the applicant’s representative raised what the Authority regarded as “new information” for the purposes of s 473DD(a) of the Migration Act 1958 (Cth) (the Migration Act). The applicant’s representative submitted that the delegate had failed to give any consideration to possible harm the applicant could face as a failed asylum seeker if he were to return to Bangladesh. The submission asserted that the applicant risked a prison sentence of up to one year as a failed asylum seeker. The Authority noted that no such claim had been raised by the applicant prior to the delegate’s decision. The Authority found that this was “new information” for the purposes of s 473DD(a) of the Migration Act and could not be considered.

19    The applicant was legally represented in his application for judicial review before the Federal Circuit Court. The only ground pressed was that the Authority had erroneously characterised the submission advanced by the applicant’s representative as “new information”. The applicant contended that what was advanced was a “new claim” and that s 473DD(a) did not restrict consideration of such a claim.

20    The primary judge referred to CVK16 v Minister for Immigration and Border Protection (2017) 257 FCR 297, where McKerracher J at [45] approved the approach that had been taken at first instance that a “claim” does not exist in a vacuum and only carries meaning capable of consideration if it is accompanied by certain facts and circumstances. The primary judge considered that the claim involved an assertion that the applicant was at risk of a year’s imprisonment in Bangladesh as a failed asylum seeker. His Honour concluded in that light, it was open to the Authority to conclude that the new claim was based on “new information”. The primary judge accordingly dismissed the applicant’s application for judicial review.

21    In this Court, the applicant has not made any direct challenge of the primary judge’s reasons. The applicant contends that:

    He did not initially make any claim of BNP involvement at his arrival interview because he was “mentally disrupted and shocked” and unable to express himself completely because of “fear and depression”: Grounds 1 and 2.

    The Authority made an error by finding that he was not a member of the BNP: Ground 2.

    The Authority erred in finding that he had not raised the claim that he spent two years hiding in Tangail city prior to the SHEV interview; he did make that claim in the SHEV interview: Ground 2.

    The delay in filing the notice of appeal was a result of his sickness or the fault of his lawyer: Ground 5.

    The Authority should have found that the AL attacked and targeted him by destroying his business: Conclusion.

    The Authority’s emphasis on “new information” or “new claims” was not right: Conclusion.

22    On a generous construction, it might be possible to regard the applicant’s “Conclusion” as asserting that there was error on the part of the primary judge in holding that the Authority had not committed jurisdictional error in deciding that the applicant sought to raise “new information” within s 473DD(a) of the Migration Act. Even if that is so, the applicant does not explain what error he asserts was made by the primary judge, and no such error is apparent.

23    The remainder of the applicant’s grounds, understood in the context of his submissions, simply seek to challenge the Authority’s findings of fact on the basis that its findings were wrong and it ought to have made different findings. That is not an assertion of any jurisdictional error. The applicant would need leave to raise those grounds, but there would be insufficient merit in the grounds to allow him to do so.

24    I am not satisfied that there is sufficient merit in the applicant’s proposed appeal to allow an extension of time. The application must be dismissed.

25    I will order that the applicant pay the Minister’s costs of the application.

Associate:    

Dated:    6 May 2025