Federal Court of Australia

CST19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2026] FCA 194

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs fixed in the amount of $8,656 pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth) and r 40.02(b) of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

YOUNAN J:

INTRODUCTION

Notice of appeal

1    By application filed on 30 September 2021, the appellants seek to appeal from the orders of the Federal Circuit Court of Australia (FCCA) (as it then was): CST19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1948 (primary judgment or PJ). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal, affirming a decision of a delegate of the first respondent (Minister) refusing to grant the appellants Protection (Class XA) (Subclass 866) visas under s 65 of the Migration Act 1958 (Cth) (Tribunal’s decision or TD).

2    The appellants are citizens of Bangladesh. On 8 February 2010, the first appellant arrived in Australia as the holder of a tourist visa. The second appellant arrived on 3 March 2010.

3    The first appellant appeared in person at the hearing of the appeal, and was assisted by a Bengali-speaking interpreter. The second appellant was included in the visa application as a member of the first appellant’s family unit (his wife) who did not have her own protection claims. The second appellant is no longer in Australia.

Notice of contention

4    The Minister filed a notice of contention on 18 October 2021, in relation to a finding made by the primary judge that the second appellant’s application was incompetent (reflecting the agreement of the parties) by reason of the second appellant no longer being in the jurisdiction: PJ [68]. The primary judge dismissed the application, but did not order costs in respect of the second appellant. The Minister contends that the second appellant’s application was competent, and should have been dismissed on the basis that there was no error in the Tribunal’s decision, and the relief sought would have been futile.

5    The first respondent’s written submissions, filed on 2 February 2026, clarified that the Minister does not cross-appeal from the order of the primary judge that there be no order for costs in respect of the second appellant, but only seeks costs of the appeal in relation to the second appellant. At the hearing of the appeal, counsel for the Minister accepted that it is not necessary to address the notice of contention in the event that the appeal is dismissed, with costs.

FACTUAL BACKGROUND

6    The background to this matter is conveniently summarised at paragraphs [1]-[8] of the primary judgment and in the Tribunal’s decision at paragraphs [3]-[11].

7    It is not necessary to repeat it here, save to note that this appeal relates to the appellants’ second application for a protection visa on 6 December 2012, having first applied on 5 March 2010.

8    The second application was rejected by a delegate of the Minister, and affirmed by the then Refugee Review Tribunal. On 30 May 2014, the FCCA remitted the matter to the delegate who again refused the application on 12 June 2015, which decision was affirmed by the Tribunal on 16 November 2016. On 15 June 2017, the FCCA remitted the matter to the Tribunal for reconsideration. The reasons for remittal in both instances are not relevant to this appeal.

9    On 17 June 2019, the Tribunal affirmed the delegate’s decision not to grant the appellants protection visas, and an application for judicial review of the Tribunal’s decision was dismissed by the FCCA on 24 August 2021. The appellants now appeal from that judgment.

GROUNDS OF APPEAL

10    Although filed in the form of an application for judicial review of the Tribunal’s decision (in the original jurisdiction of the Court) under s 476A of the Migration Act, the first respondent approached the application as, in substance, a notice of appeal from the judgment of Judge Humphreys of the FCCA. I have adopted that approach.

11    The appeal grounds are expressed in the following terms:

1. I have been an active supporter of Bangladesh Nationalist Party since my childhood. when I was 18 years old, I became a member of Bangladesh Student Wing of Chatra Dal which is a part of Bangladesh Nationalist Party (BNP). Those who do politics are very familiar to Bangladesh society and to other political parties. Ever since I joined in the Bangladesh police in 2003 and started to work a SI, I have started listing and arresting terrorists of my authorised areas. Note that I have arrested many terrorists while working in Bangladesh Police. Top Terrorist Barna Azad was one of them. Any ordinary person would be scared when they heard the name of Barna Azad. When Barna Azad "Nas arrested by me, his accomplices surrounded my Police station and threatened many times to kill me. Barna Azad used to do all kinds of wrongdoings under the umbrella of the Government Party. Barna AZ.AD was an active member of now the ruling party of the Bangladesh Awami League. Barna Azad was involved in a variety of evil activities ranging from terrorist activities to kidnapping, extortion, killing and abduction, which was a process of seizing power in Bangladesh. When a government comes to power in Bangladesh, they kick out supporters of the opposition parties and transparent government officials to carry out their terrorist activities. this is a political practise in Bangladesh. I have been persecuted many times for such political attack of the ruling party, Current Government and have been harassed many times in the workplace which I addressed to the Tribunal Hearing. I have provided many supporting documents which the tribunal did not take consider my claim. I want the right solution for all my oppressions and injustices through proper investigation because my life is not safe in Bangladesh.

2. Second marriage was not acceptable to most people in Bangladesh while the first wife is alive or even after the death of the first wife. My father from Bangladesh got married for the second time. In our Bangladeshi culture, the second wife often discriminates against the children of the first wife. Because the second wife thinks that her husband can divide all his property between the first wife and her children through the will. This kind of discrimination led to many disputes with my stepmother over my property. my stepmother complained to my Police Department addressing IGP about my property so that I would be under extra pressure and fear to protest as Government employees have a special code to deal with people which stepmother used as a weapon to torture me. She mentioned in her complaint that I was a member of the Bangladesh nationalist party. She believes that if I became a member of Bangladesh Nationalist party, then I would be in problem with the ruling pollical party to take extra benefit over the false allegation. I think my stepmother, being jealous of my government job as a policeman and the power of my job, could behave like this. My stepmother accused me of cutting paddy without permission, which was reported and published in a local newspaper and later proved to be false. She didn't just stop complaining in my department and in the newspaper, she took the matter to court which jeopardised my· day-to-day activities as a police person. I am no longer working in Bangladesh police, so if I go back to Bangladesh, my life will be in danger.

I mentioned these allegations and my fear along with substantial evidence to the Tribunal which The Tribunal didn't consider.

12    The appellants have not particularised the grounds of appeal. They have not provided any information beyond that contained in the application that might assist the Court in determining the matter. The affidavit filed in support of the application on 30 September 2021 repeats the claims in the notice of appeal. The appellants have not complied with the direction of a Registrar of this Court on 13 October 2021 to file and serve written submissions in support of their appeal.

13    While largely anecdotal, the grounds raised by the appellants are in essence:

(1)    The primary judge erred by not finding that the Tribunal failed to consider that the first appellant had been an active supporter of the Bangladesh Nationalist Party (BNP) since childhood, by way of: (a) becoming a member of the BNP affiliated student wing when he was 18 (student political activity claim); and (b) his conduct as a police officer in Bangladesh (police officer claim) (Ground 1).

(2)    The primary judge erred by not finding that the Tribunal failed to consider evidence in relation to the conduct of the first appellant’s stepmother, including claims that she made false allegations against him in relation to property and his political affiliations (Ground 2).

14    The crux of both grounds of appeal is that certain claims made by the first appellant were not considered by the Tribunal.

15    The first respondent says that the student political activity claim and Ground 2 of the appeal were not raised by the appellants before the primary judge (and leave to raise them on appeal should be refused), but that the police officer claim was “in substance” the same as ground one of the application in the court below.

16    I see the matter differently. The (further amended) application for judicial review before the FCCA did not contain (any of) the appellants’ current claims on appeal. Rather, the appellants claimed below that the Tribunal failed to “actively engage” with certain aspects of their claim, particularly in relation to the first appellant’s activities during his career as a police officer and his political affiliation with the BNP: PJ [28]. Those aspects were particularised in the application for review. I accept that the application for review did not include a claim regarding his student political activities, nor the conduct of his stepmother. However, the point to emphasise is that the claim in the FCCA was not that certain matters were not considered, but that the Tribunal failed to deal with the “factual substance” of the claims leading to a failure to exercise jurisdiction: PJ [39]-[40], noting reliance on CTE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 759 at [57].

17    The ‘catch-22’, or paradox, of the Minister’s submission that leave to raise a new ground should be refused as it is without merit (applying VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [48]), is that it necessitates consideration of the new ground. Where the new ground is a claim of absence of consideration, there can be only one conclusion: i.e., the claim was considered, or it was not considered. In those circumstances, if the new ground does not have merit, it will fail on that basis (irrespective of the question of leave to raise the new ground on appeal).

18    It is evident that the substance of the appellants’ claims (said to be overlooked) was considered by the Tribunal “in a detailed and thorough engagement” of those claims, as the primary judge found (PJ [69]), but rejected by the Tribunal on the basis that the first appellant was considered an unreliable witness and his claims were thereby untenable: TD [27], [60]-[76]; PJ [75]-[76].

Ground 1(a) – student political activity claim

19    The student political activity claim was considered by the Tribunal, and rejected on the basis of the Tribunal’s assessment of the first appellant’s credibility: TD [16], [60], [76]. The Tribunal’s queries in relation to this claim were put to the first appellant. The Tribunal acknowledged that a person may be unable to remember details of what has taken place. Nevertheless, the Tribunal did not accept the first appellant’s explanation of events given the “plethora of concerns” about the first appellant’s evidence.

20    At the hearing of the appeal, the first appellant maintained the veracity of his claims. It is not for this Court to determine that question. As the first respondent submits, it was open to the Tribunal on its assessment of the first appellant’s credibility to reject the claim that he was a member or supporter of, or involved in, the BNP student wing.

21    This aspect of the first ground of appeal is without merit, and is rejected.

Ground 1(b) – police officer claim

22    The police officer claim was considered by the Tribunal, and rejected on the basis that the first appellant’s “evidence in relation to when he was in the police force was vague and unconvincing”: TD [63].

23    At the hearing of the appeal, the first appellant submitted that his claims were not properly investigated, and that there was a language barrier. I note that the Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages, and that the appellants were represented by counsel in the hearing before the FCCA.

24    I am satisfied that the Tribunal “actively engaged” with this claim for the reasons provided by the primary judge at paragraphs [69]-[76] of the primary judgment. The primary judge found that the detail of the first appellant’s claims regarding his employment as a police officer were “subsumed” by a finding of greater generality, viz., that the Tribunal did not accept that the first appellant’s fears were genuine: PJ [75]. That does not mean that the first appellant’s claims were not considered, but rather that there was a common basis for their rejection. There is no appellable error in that approach.

25    This aspect of the first ground of appeal is without merit, and is rejected.

Ground 2 – conduct of the first appellant’s stepmother

26    The claim regarding the conduct of the first appellant’s stepmother and her family was considered by the Tribunal, and rejected on the basis of inconsistencies in the evidence; documentary evidence that was “irregular and indicative of fraud”; and an “overall impression” that the first appellant was “making up his evidence as he goes along”: TD [27], [66]-[68]. The first appellant does not demonstrate any error in that finding, i.e., in reaching that conclusion. He simply takes issue with the conclusion. Absent irrationality or legal unreasonableness, which I do not find, that (i.e., whether the first appellant was fabricating evidence) is not a matter for this Court to determine on this appeal.

27    In the notice of appeal, the first appellant claims that “substantial evidence” of his fears was not considered by the Tribunal. At paragraph [7] of its decision, the Tribunal compiles a list of the documentary evidence before it. The first appellant does not suggest that the list is incomplete, or otherwise identify the “many supporting documents” that he claims were ignored or overlooked by the Tribunal.

28    The second ground of appeal is without merit, and is rejected.

CONCLUSION

29    As there is no merit in the grounds of appeal, the appeal should be dismissed, with costs.

Costs in a specified sum

30    At the hearing of the appeal, the first respondent sought an order for costs (in the event that the appeal was dismissed) fixed in the amount of $8,656, in accordance with r 40.02(b) of the Federal Court Rules 2011 (Cth) (noting also s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth)). This is the maximum amount that may be claimed under item 15.2 of Schedule 3 to the Federal Court Rules, where the application is dismissed after the hearing (short form bill amount).

31    In that regard, the first respondent read the affidavit of Sophia Li sworn on 2 March 2026, which details the resources and time allocated to the matter and the professional fees incurred to date. Those fees ($9,331.16, excluding GST) exceed the (maximum) short form bill amount.

32    In the notice of appeal, the appellants seek a fee exemption on the basis of “current financial difficulties”. At the hearing of the appeal, the first appellant submitted that he did not have a working visa, and was not in a position to meet a costs order. However, the first appellant has not sought to provide any evidence of his claimed financial difficulties, and more importantly, of his inability to meet any costs order.

33    In exercising my discretion, I take into account that, while the first appellant appeared at the hearing, he has not been responsive to communications from the Minister (or the Court). Indeed, the last document filed by the appellants was in September 2021, and the last communication received from the first appellant was in January 2025, when the first appellant indicated his availability to appear at a hearing in 2025. The Minister foreshadowed a dismissal application in the event that the first appellant did not appear at the hearing. While such an application proved unnecessary, that was not apparent until the morning of the appeal, and it does not expunge the time and costs expended to prepare for such an application.

34    I observe also that the first respondent has taken a beneficial approach to the preparation of the appeal, warranted by the absence of particularisation by the appellants of the grounds of appeal, including by way of an outline of written submissions, which has been of assistance to the Court in addressing those grounds. The fixed sum sought reflects that approach.

35    In exercising my discretion to award costs in a fixed amount in accordance with the overarching purpose under s 37M of the Act, it is also relevant to consider that the matter “has a long and unfortunate history”, which, the primary judge observed, does not reflect well on the administration of justice in a timely manner: PJ [2]. I accept that the order sought by the first respondent is reasonable, and facilitates the efficient disposition of this matter, thereby bringing this history to an end.

Not necessary to address notice of contention

36    In those circumstances, it is not necessary to address the substance of the Minister’s notice of contention. That is because the Minister does not cross-appeal from the primary judge’s order that there be no order for costs in respect of the second appellant in the proceeding below, and in relation to the second appellant, seeks only the costs of the appeal, which are otherwise awarded.

Associate:

Dated:    9 March 2026