Federal Court of Australia

BFK19 v Minister for Immigration & Multicultural Affairs [2026] FCA 905

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs by way of lump sum in the amount of $4,300.

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

REASONS FOR JUDGMENT

Delivered ex tempore

JACKMAN J:

1    This is an appeal from the decision of the primary judge in the Federal Circuit and Family Court of Australia on 6 February 2025 in BFK19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 118 (the Primary Judgment or PJ). The primary judge dismissed the appellant’s application for judicial review of a decision of the (then) Administrative Appeals Tribunal (the Tribunal) dated 27 February 2019. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) not to grant the appellant a Protection (Class XA) visa.

2    On 22 March 2019, the appellant sought judicial review of the Tribunal’s decision by the Federal Circuit and Family Court of Australia. On 21 November 2024, the appellant filed a Further Amended Application (FAA). The FAA relied on one ground of review, namely that the Tribunal unreasonably exercised its discretion not to take evidence by telephone from witnesses.

3    On 5 December 2024, the appellant’s judicial review application was heard by the primary judge and at the hearing, the appellant was granted leave by consent to rely on an additional ground:

2.    The Tribunal at [129] of its reasons found that Mr Das [sic: Mr Deen] gave false evidence at the applicant’s request such finding being made without probative evidence, and without providing procedural fairness.

4    The primary judge dismissed the appellant’s application in the Primary Judgment.

5    In respect of ground 1, the primary judge found that the Tribunal’s reasons provided an evident and intelligible justification for the Tribunal’s decisions not to try to contact the relevant witnesses to obtain further information: PJ at [45]–[60]. In respect of ground 2, the primary judge did not accept that whether or not the applicant asked Dr Deen to provide false evidence to the Tribunal was an “issue arising in relation to the decision under review” and further, did not accept that the Tribunal’s finding at [129] was made without probative evidence. Accordingly, the primary judge did not accept that the Tribunal had contravened s 425 of the Migration Act 1958 (Cth) (the Act): PJ at [67]–[75].

6    On 25 February 2025, the appellant filed a notice of appeal from the whole of the judgment and orders of the primary judge made on 6 February 2025.

7    The appellant relies on a single ground of appeal which is:

1.    The primary judge erred by failing to hold that the Tribunal made a jurisdictional error by considering a criterion for the grant of the visa which had not been considered by the delegate.

8    As the Minister submits, read literally, the ground of appeal must fail because both the delegate and the Tribunal determined that the applicant did not meet the criteria found in s 32(2)(a) and (aa) of the Act. That is, they both considered and applied the same criteria.

9    However, the Minister is prepared to read the ground of appeal more broadly and to the appellant’s benefit as a self-represented litigant, and deal with it on the basis that the ground of the appeal raises an allegation that the Tribunal did not comply with s 425 of the Act as it disposed of the review application before it on a basis which was not considered by the delegate of the Minister. Section 425(1) of the Act, as it stood at 27 February 2019, provided that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. However, the Minister submits, and I accept, that if treated as a new ground, leave to advance this new ground should be refused as the ground is of no real merit, citing VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [48] (Kiefel, Weinberg and Stone JJ). If treated as implicit in the original ground, it should be rejected as having no real merit.

10    The Minister submits, and I accept, that the Tribunal is not confined to the issues which the delegate considered; however, if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). However, as the Minister submits, no issue arises here because the dispositive issues were the same, and in any event, the issues before the Tribunal were made clear to the appellant.

11    The dispositive issue before the delegate was whether the applicant was a credible witness, such that it should be accepted that he faced a real risk of harm on return to Bangladesh due to writing and publishing a book which was critical of Dr Morris Bucaille’s book “The Bible, The Quran and Science”. The delegate concluded that the applicant had not published such a book and had not ever faced threats of death of physical harm from Muslim extremists. On this basis, the delegate was not satisfied that there was a real chance the applicant would face persecution or that there was a real risk he would face significant harm.

12    Contrary to the ground of appeal, the Tribunal considered the same dispositive issue. Relevantly, the Tribunal concluded that the applicant had not published any book critical of Dr Bucaille nor that he, or anyone associated with him, was threatened by extremists. Accordingly, the Tribunal did not accept that the applicant would face serious or significant harm for these reasons.

13    Accordingly, where the delegate and the Tribunal considered the same criterion for the grant of the visa and the same dispositive issue, the ground of appeal fails at a factual level and is incapable of revealing any jurisdictional error in the Tribunal’s decision.

14    The appeal should therefore be dismissed. The Minister estimates that its party-party costs are in the amount of $4,300 which strikes me as a reasonable amount. The Court’s preference is to make lump sum costs orders whenever it is appropriate and practicable to do so, which in my view it is in the present case.

Associate:

Dated:    10 July 2026