Federal Court of Australia

DUT18 v Minister for Immigration and Citizenship [2026] FCA 945

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to the “Minister for Immigration and Citizenship”.

2.    The name of the second respondent be changed to the “Administrative Review Tribunal”.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs fixed in the amount of $4,000.

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    The appellant appeals from the judgment of the Federal Circuit and Family Court of Australia delivered on 29 November 2024 in DUT18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1294. Although the appellant appeared at the hearing, he did not make any submissions, whether written or oral.

2    The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 June 2018. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) not to grant the appellant a Temporary Protection (Class XD) (Subclass 785) visa (visa).

3    On 24 April 2013, the appellant, a citizen of Bangladesh, arrived in Australia. On 8 July 2013, he applied for a Protection (Class XA) (Subclass 186) visa.

4    On 4 September 2015, the delegate wrote to the appellant and advised that, due to recent amendments to the Migration Act 1958 (Cth) (Act), which introduced s 45AA and reg 2.08F of the Migration Regulations 1994 (Cth):

(a)    the application for a Protection (Class XA) (Subclass 866) visa was deemed to be, and to have always been, invalid; and

(b)    the application was taken to be, and to have always been, an application for a Temporary Protection (Class XD) (Subclass 785) visa

On the same day, the delegate refused to grant the visa on the basis that the appellant did not satisfy s 36(2) of the Act.

5    On 21 September 2015, the appellant applied to the Tribunal for review of the delegate’s decision. On 12 April 2018, the appellant was invited to attend a hearing, which he attended on 5 June 2018 with the assistance of an interpreter in the Bengali language. On 28 June 2018, the Tribunal affirmed the delegate’s decision.

6    The appellant’s claims for protection detailed in the statement accompanying his visa application can be summarised as follows:

(a)    In 2005, the appellant’s father closed the grocery shop he was running in Dhaka and the family moved back to their home village of Char Dukhia.

(b)    The appellant made new friends in the village who were supporters of the Bangladesh Nationalist Party (BNP) and who invited him to join them at rallies and meetings. At the fourth rally he attended, the Awami League attacked the BNP supporters. His friends became involved in the fighting but he steered away and went home after about an hour.

(c)    Four to five days later, as he was returning home from the village bazaar, the appellant was attacked by three or four people. He did not see their faces but thought they were from the Awami League. They attacked him with a belt and discussed cutting his vein with a razor. They left when one of the villagers approached the area. His friends took him to the doctor.

(d)    The appellant’s friends sought revenge on the Awami League supporters by finding and attacking them. A few days later, his friends told him that the Awami League supporters were planning to attack him again. The Awami League supporters came to his house and asked his mother about his whereabouts. The police came to his house and asked for him. The appellant later found out that the Awami League supporters had lodged a complaint against him, so the appellant moved to Chittagong in fear of his safety.

(e)    After about fifteen months his sister sent him a letter informing him that the Awami League had learnt of where he was hiding in Chittagong. The appellant was scared so he decided to leave the country.

(f)    He fears that he would be killed by the Awami League supporters if he returns to Bangladesh as they thought that he was the cause of the attack on them by the BNP supporters.

7    The Tribunal outlined the appellant’s claims for protection contained in his visa application and his oral evidence at the hearing before the Tribunal ([9]–[22]).

8    The Tribunal accepted that there was independent country information which indicated that the security situation in Bangladesh was volatile, that there was sometimes politically motivated violence and that there were often clashes between members and supporters of rival parties and between party supporters and law enforcement agencies. The Tribunal also accepted that senior members of the BNP faced a high risk of politically motivated arrest and violence both from security forces and ruling party activists ([23]). The Tribunal accepted the appellant’s evidence in relation to his places of residence and his travel to India and Indonesia ([26]–[27]). The Tribunal found that the appellant had left Bangladesh in April 2012 and then spent about eleven months in India and a month in Indonesia before coming to Australia in April 2013 ([28]).

9    The Tribunal then summarised its findings on the appellant’s credibility. The Tribunal did not accept any of the appellant’s claims for protection as true ([29]). It took into account that the appellant had limited formal education but considered that that fact did not answer its concerns about the unreliability of his evidence ([30]).

10    The Tribunal then considered the various aspects of the appellant’s claims. It detailed the evidence given by the appellant in response to the Tribunal’s questions regarding his involvement with the BNP and departure from his village in 2006. The Tribunal did not accept that the appellant was in hiding in his village at his sister’s house for a time prior to moving from his village to Chittagong. It found the appellant’s answers to its questions regarding his involvement with the BNP to be very general and found that the appellant had changed or adjusted his evidence during questioning to answer the Tribunal’s concerns. The Tribunal did not accept the appellant’s claims that he left his village in 2006 because Awami League members were looking for him to harm him out of revenge, following fights and clashes between the BNP and the Awami League. It did not accept the appellant’s claim that there was a charge or complaint made against him by the Awami League or that the police were looking for him at his house for that reason. Nor did the Tribunal accept that the appellant was an active BNP supporter, or that he attended BNP rallies or meetings in his village. The Tribunal did not accept that there were clashes and fights between political parties in his village over him, or that he was attacked and injured by Awami League supporters ([31]–[34]).

11    The Tribunal did not accept that the appellant moved to Chittagong to avoid harm in his village or that he was in hiding at any time in Chittagong ([35]). In relation to the appellant’s claimed stay in India and Indonesia, the Tribunal found that the appellant was not a credible witness and that he gave untruthful and evasive evidence ([38]–[39]).

12    While the Tribunal accepted that the appellant knew about some BNP activities that had taken place in Australia, it did not accept that the appellant had attended BNP events in Australia. Nor did the Tribunal accept that the appellant had difficulties giving his evidence because of memory problems, noting that there was no medical evidence before it to support that claim and that the appellant had himself told the Tribunal “that he could remember things going back a long time if they are true” ([40]–[41]).

13    The Tribunal found that the appellant was not a member of the BNP, noting that he himself had told the Tribunal this at the hearing. While the Tribunal accepted that the appellant preferred the BNP to the Awami League, it found that he had not been an active supporter of the BNP and that the appellant would not be involved with the BNP or BNP activities if he returned to Bangladesh. In this respect, the Tribunal noted the appellant’s evidence that he did not become involved with the BNP at all in Chittagong during the approximately six years he lived there ([42]).

14    For those reasons, the Tribunal found that the appellant did not have a genuine fear of harm founded upon a real chance of persecution and that he did not face a real risk of significant harm ([43]–[44]). Accordingly, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) ([45]–[46]).

15    The Tribunal therefore affirmed the decision not to grant the visa ([48]).

16    By an amended application filed on 24 September 2018 in the Court below, the appellant sought judicial review of the Tribunal’s decision. The appellant raised five grounds of review with lengthy particulars.

17    The primary judge rejected ground 1 and held that the Tribunal properly applied the “real chance” test in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, and assessed the chance of harm by reference to the reasonably foreseeable future ([20]–[22]). To the extent that the appellant contended that the Tribunal failed to consider relevant country information, namely a document identified as the “Human Rights Watch World Report 2018”, the primary judge found that the appellant had not demonstrated that that information was brought to the attention of the Tribunal, and in any event the Tribunal’s findings were not inconsistent with that report ([23]).

18    In relation to ground 2, the primary judge accepted the Minister’s submission that the Tribunal was not required to apply the “what if I’m wrong” test as there was “no real doubt” as to its conclusions, citing MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [95]–[96]. Her Honour held that the Tribunal did not accept that the appellant had undertaken any of the activities said to give rise to an imputed political opinion or profile ([26]–[28]).

19    In relation to ground 3, the primary judge held that the Tribunal did consider and deal with the appellant’s claims that he would face significant harm in Bangladesh but rejected them on a factual basis. Her Honour reasoned that it was open to the Tribunal to rely on its earlier findings in respect of the refugee criterion in determining that the appellant did not meet the complementary protection criterion, citing ALD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1286 at [30] ([30]–[33]).

20    The primary judge rejected ground 4 on the basis that the Tribunal (a) did not accept that the appellant had engaged in political activities in the past, and (b) found that he would not engage in political activities in the future. Her Honour held that the Tribunal’s findings were dispositive of the appellant’s claims in their entirety ([35]–[36]).

21    In relation to ground 5, the primary judge held that:

(a)    While the appellant contended that the country information before the Tribunal did not support that “torture and ill-treatment would not be repeated by his persecutors”, the Tribunal had found that the appellant had not suffered the harm he claimed to have suffered in the past ([40]).

(b)    It was not apparent from the Tribunal’s reasoning that it applied any high or inappropriate standard of proof ([41]).

(c)    To the extent that the appellant suggested the delegate applied too high a standard of proof, it was not the Tribunal’s role to perform such an evaluation on merits review ([42]).

(d)    While the Tribunal may have gone further than the delegate and found that the appellant was not “an active BNP supporter” (whereas the delegate accepted the appellant was a “low-level BNP supporter”), the appellant was sufficiently on notice that the extent of his involvement with the BNP may be in issue from the delegate’s decision and the Tribunal’s questioning. The primary judge also held that the fact the Tribunal reasoned differently from the delegate was not demonstrative of bias ([43]).

(e)    The Tribunal did consider whether matters specific to the appellant (such as limitations in his education and claimed memory problems) may have accounted for the difficulties in his evidence but found in the circumstances that they were not capable of doing so ([44]).

22    The primary judge then addressed additional issues that had been raised at the hearing of the judicial review application. Her Honour considered matters raised by the appellant in his affidavit filed with his application but held that they did not demonstrate any error on the part of the Tribunal ([46]–[48]). Her Honour observed that at the hearing the appellant had said that he told the Tribunal about scars he had from being attacked but that the appellant had said that that evidence was not considered by the Tribunal. Her Honour also observed that at the hearing she had raised two issues ([49]):

(a)    certain evidence the Tribunal had summarised in its decision was unable to be located in a transcript filed by the appellant; and

(b)    the appellant’s evidence indicated that he had told the Tribunal that he had tried to obtain a copy of the audio of his protection visa interview but had been unable to do so, but that evidence was not referred to in the Tribunal’s reasons.

23    The primary judge recounted that the Minister subsequently placed a professionally prepared transcript before the Court which demonstrated that the appellant’s transcript was incomplete and inaccurate in some instances. Her Honour found that the Minister’s transcript was to be preferred ([50]).

24    The primary judge considered whether the Tribunal failed to consider the appellant’s oral evidence that he had “marks” from being attacked in Bangladesh, and in particular whether it failed to consider it in a manner capable of demonstrating an error of the nature considered in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 ([53]). Her Honour accepted the Minister’s submission that it should not be inferred, on the balance of probabilities, that the Tribunal failed to consider the appellant’s oral evidence ([54]). The primary judge further held that the Tribunal had not overlooked the appellant’s evidence that he had tried to obtain a copy of the audio of his protection visa interview or had otherwise fallen into relevant error in dealing with it ([56]). Nor did her Honour accept that the Tribunal had overlooked a submission made by the appellant about difficulties he said he had experienced at the interview with the delegate. Her Honour accepted the Minister’s submission that the appellant did not appear to have contended that anything he specifically said to the delegate was inaccurate and it was not apparent that anything turned on that in the Tribunal’s decision ([57]).

25    Finally, the primary judge observed that at the judicial review hearing, the appellant had submitted that he had experienced difficulties obtaining documents from his home village due to electricity issues, but held that this did not demonstrate error on the part of the Tribunal as it was not apparent the appellant had sought an opportunity to provide that document to the Tribunal ([58]). Her Honour accordingly dismissed the application ([59]).

26    The appellant’s notice of appeal filed on 16 December 2024 advances a single ground, which is as follows:

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.

27    This was not a ground that was advanced by the appellant before the primary judge. The appellant therefore requires leave to raise it for the first time on appeal. There is no explanation for why the appellant failed to raise this point before the primary judge. While he is not legally represented on appeal, neither was he legally represented in the court below. In any event, the appellant’s argument has no merit.

28    The appellant has not identified what criterion for the grant of the visa was considered by the Tribunal but not by the delegate. Both the delegate and Tribunal considered whether the appellant satisfied the criteria for the grant of a protection visa in s 36(2) of the Act. Further, to the extent the appellant means that the Tribunal made its decision on a different basis to the delegate in a way that resulted in jurisdictional error, both the delegate and Tribunal found the appellant not to be credible, and rejected his claims for that reason. Alternatively, if the appellant is to be understood as contending that the Tribunal made findings on issues that were not considered by the delegate, that was simply because the Tribunal was responding to the further evidence provided to it by the appellant at the hearing.

29    In light of the lack of explanation for why the point was not taken below and in circumstances where the argument is without merit, leave should not be granted for it to be raised for the first time on appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [48].

30    Accordingly, the notice of appeal should be dismissed with costs. The Minister submits, and I accept, that costs should be awarded in the lump sum of $4,000.

Associate:

Dated:    16 July 2026