Federal Court of Australia

FML18 v Minister for Immigration and Citizenship [2026] FCA 1081

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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 judgment delivered in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) on 18 February 2025 (FML18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 214) (the primary judgment). The primary judgment dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (now the Administrative Review Tribunal) made on 24 September 2018. The Tribunal’s decision affirmed the decision of a delegate of the first respondent (Minister) not to grant the appellant a Protection (Class XA) (subclass 866) visa (protection visa).

2    The appellant relied on one ground of appeal, namely that the primary judge erred by failing to hold that the Tribunal made a jurisdictional error by considering a criterion for the grant of the protection visa which had not been considered by the delegate.

3    The appellant appeared at the hearing in person, with the assistance of an interpreter. The Minister was represented by Mr Djasmeini, of Mills Oakley.

Background

4    The appellant is a citizen of Bangladesh. Before arriving in Australia on 15 November 2015, he was granted a Visitor (Class FA) (subclass 600) visa on 2 November 2025. The appellant applied for the protection visa on 11 December 2015.

5    The appellant’s reasons for claiming protection are set out in the statement accompanying his protection visa application. In summary, the appellant contended that he would be persecuted upon returning to Bangladesh because he was a political activist involved in public demonstrations and speeches as a mid-level leader of the Bangladesh Nationalist Party (BNP), which opposed the government of the day.

6    On 6 June 2016, after an interview with the delegate in which the appellant claimed he had been targeted by a Bangladeshi Minister for Parliament since their election in 2014, the delegate refused the appellant’s protection visa application. The delegate was not satisfied that he was owed protection obligations, as he was neither a refugee nor owed complementary protection, and concluded that the requirements of ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) had not been met. He also doubted the appellant’s credit as regards to his protection claims.

7    On 4 July 2016, the appellant applied to the Tribunal for a review of the delegate’s decision. The appellant appeared before the Tribunal on 12 September 2018 with the assistance of an interpreter. On 24 September 2018, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa. The Tribunal was satisfied that the appellant was a citizen of Bangladesh. It was not, however, satisfied that there was a real risk that he would suffer significant harm were he to be removed from Australia to Bangladesh. While the independent information sourced by the Tribunal indicated that BNP members and office holders might experience “not insignificant” violence and physical harm, the appellant’s own evidence suggested that he had never felt threatened or feared harm, including in protests and demonstrations he attended as part of the BNP, beyond his concern about being targeted by a Minister for Parliament. Accordingly, the Tribunal was not satisfied that he was a refugee with a well-founded fear of persecution under ss 36(2)(a) and 5J(1) of the Migration Act, nor otherwise a person in respect of whom Australia owes protection obligations under s 36(2)(aa). The Tribunal also noted that there was no suggestion the appellant was a member of the same family unit as a person who satisfies the criterion in ss 36(2)(a) or (aa) and who holds a protection visa.

8    The Tribunal also made adverse credibility findings against the appellant based on inconsistencies in his evidence, implausible explanations for aspects of his case, and omissions from his detailed written claims which he later relied on in his interview with the delegate and again before the Tribunal.

9    On 18 October 2018, the appellant commenced proceedings in the FCFCOA seeking judicial review of the Tribunal’s decision. The matter came before the primary judge on 18 February 2025, and the appellant appeared in person. The two grounds of appeal in the application in the FCFCOA were:

Ground One:

The Administrative Appeals Tribunal has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).

Particulars:

In dealing with the Applicant’s claims under Section 36(2)(aa) of the Migration Act, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.

Ground Two:

The Administrative Appeals Tribunal denied procedural fairness to the applicant.

(as written)

10    The appellant also sought to raise a new ground of appeal at the hearing before the primary judge, which concerned how the Tribunal had considered his disclosure of bribery of an immigration official upon leaving Bangladesh. The appellant had told the delegate about this but not the Tribunal. The Tribunal put this inconsistency to the appellant during the hearing but was not persuaded by his explanation, being that he was concerned about disclosing an illegal act.

11    The primary judge noted that the first and second grounds of appeal were unparticularised and unsupported by any written submissions articulating why, in the appellant’s view, the Tribunal failed to apply the correct test pursuant to s 36(2)(aa) of the Migration Act. The appellant did not shed light on this at the hearing, saying that his lawyer had drafted his application for review and that “[he has] nothing to say [he does] not know anything about the law”. Her Honour added that she could not engage in merits review and, in respect of the ground raised during the hearing, that it was a matter for the Tribunal as to whether it accepted the appellant’s explanation for why he failed to disclose the bribery to the Tribunal. Ultimately, the primary judge did not identify any jurisdictional error in the Tribunal’s reasons and dismissed the appeal.

Legislative framework

12    Section 36 of the Migration Act provides as follows:

36 Protection visas––criteria provided for by this Act

…

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

…

13    Under s 36(2A), a non-citizen will suffer “significant harm” if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

14    Under s 5H(1)(a), a person who has a nationality is a refugee if they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country. The definition of “well-founded fear of persecution” is set out at s 5J(1):

5J Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

…

15    The reason the person fears being persecuted must be the “essential and significant reason”, and must involve serious harm to the person and systematic and discriminatory conduct (s 5J(4)).

The appeal

16    In his notice of appeal from the primary judgment, the appellant relied on the following ground:

Grounds of appeal

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.

17    The appellant did not specify which criterion for the grant of the protection visa had been considered by the Tribunal and not the delegate. Regardless, because this ground was not put before the primary judge, the appellant required leave to raise it in this appeal. Relying on various authorities including SZVBT v Minister for Immigration and Border Protection [2017] FCA 355; 72 AAR 1 at [9]-[10] (Flick J), VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ) and Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 84; 310 FCR 421 at [10] (Banks-Smith, Feutrill and Vandongen JJ), the Minister submitted that leave should only be granted if it is in the interests of justice to do so; indeed, it should generally be refused where there is no adequate explanation for the failure to address the point earlier and where the point seems of dubious merit.

18    In the Minister’s submission, leave should not be granted for the following reasons:

(a)    The appellant has not provided any explanation for failing to bring before the primary judge the matter of the Tribunal considering a criterion which had not been considered by the delegate.

(b)    There is no merit to the ground. The Minister submitted that both the delegate and the Tribunal had considered ss 36(2)(a) and 36(2)(aa) of the Migration Act; in other words, the primary criteria for the grant of a protection visa. He further submitted that even if the Tribunal had considered another criterion under s 36 that the delegate had not, this alone would not demonstrate jurisdictional error, nor any error on the part of the primary judge.

(c)    To the extent the ground of appeal is construed by the appellant as relating to the bribery issue raised during the proceedings before the primary judge, the ground must fail. The Tribunal had put the inconsistency of the appellant’s response – that he had refrained from disclosing the bribery to the Tribunal because he was concerned that bribery would be an illegal act, and yet told the delegate about it – to the appellant and was not persuaded by his explanation. The primary judge found that the Tribunal not being persuaded did not amount to jurisdictional error, and the primary judge’s own approach to this issue does not demonstrate any identifiable error.

19    At the hearing, the appellant, through an interpreter, was asked to make oral submissions because he did not file any written submissions as directed. He made submissions as to his concerns about being returned to Bangladesh, but these concerns went to the merits of the original application for a protection visa, a matter to which this Court cannot have regard.

20    Mr Djasmeini, for the Minister, made short submissions summarising his position as set out in the written submissions, which were interpreted to the appellant. The appellant did not make any submissions in reply except to underline his merits argument.

Consideration

21    The sole ground of appeal was not raised before the primary judge. Leave to do so now “should only be granted if it is expedient in the interests of justice to do so”; see VUAX v Minister at [46], citing O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310; H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348; 63 ALD 43; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]-[24] and [38] (Allsop J, Drummond and Mansfield JJ agreeing).

22    The Full Court in VUAX v Minister went on to say (at [48]) that:

Where … there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

23    The appellant put on no evidence, and made no submissions (except to revisit the merits), as to why he had not raised this matter beforehand. At the end of his submissions, I asked him to do his best to say why his ground of appeal should succeed. He was unable to do so. Giving him the benefit of all that Mortimer J said in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [5]-[6] as to the need for a ground of judicial review developed by “an unrepresented asylum seeker whose first language is not English” to still be “arguable”, I am unable to find that the sole ground of appeal raised by the appellant is arguable, nor am I persuaded that he should be granted leave to raise it on appeal.

24    I have also considered whether there is any obvious error in the Tribunal’s decision or in the primary judge’s decision: see COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J); Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2023] FCA 978 at [11] (Wheelahan J). I am satisfied that there is no obvious error in either decision.

25    As the appellant did not raise on his notice of appeal, nor in submissions, the New Ground Raised at Hearing (the “bribery issue” – see paragraphs [18]-[21] of the primary judgment), I do not regard it as being a subject of this appeal.

Determination

26    The appeal should be dismissed with costs.

Associate:

Dated:    6 August 2026