Federal Court of Australia

FPL18 v Minister for Immigration and Citizenship [2026] FCA 1188

ORDERS

THE COURT ORDERS THAT:

1.    Leave to advance grounds three, four and five of the Notice of Appeal is refused.

2.    The appeal be dismissed.

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

4.    The appellants pay the first respondent’s costs in the fixed sum of $8,907.00.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

DOWNES J:

1    This is an appeal from the orders of the Federal Circuit and Family Court of Australia (Division 2) delivered on 7 March 2025: FPL18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 322 (J). The primary judge dismissed the appellants’ application for judicial review of a decision of the second respondent, the (then) Administrative Appeals Tribunal (Tribunal) dated 27 September 2018. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) dated 19 November 2015, refusing to grant Protection (Class XA) (Subclass 866) visas to the appellants.

2    The appellants’ Notice of Appeal contains five grounds of appeal:

1. The primary judge erred by failing to find that the Administrative Review Tribunal whether the appellant was owed protection obligations by failing to consider claims or integer claims.

2. Further, the Primary judge should have recused himself from hearing the case because the Primary judge served as the Member of the Tribunal till recently in the same Tribunal refused applicants application.

3. … The adverse credibility findings lacked sufficient evidential foundation and / or was founded upon trivial matters so as to constitute jurisdictional error.

Particulars

a. The Tribunal relied upon the inconsistency relating to First Applicant’s residential address as the primary basis of the rejection of the claims (AAT at [46] – [50] as the principal basis of the rejection of the claims.

b. There is insufficient link the Tribunal’s finding of credit and the material that it relied upon and / or it relied on matters trivial matters to justify adverse credit findings.

c. The Tribunal relied upon minor inconsistency of the address stated when the Applicant stated that other have filed the forms (trp 19) and the party structure in the remote area.

d. There is limited material to justify making the Tribunal decision.

e. The Tribunal fell into jurisdictional error.

4. … The Tribunal fell into jurisdictional error when it failed to consider a claim or an integer of the claims.

Particulars

The Tribunal ignored the following claims / integers of claims:

(a) The Second applicant in her statement dated 14 September 2018 noted that she would be imputed to hold political opinion with JEI or affiliated with the JEI. The Tribunal failed to consider second applicant's imputed political opinion.

(b) The Second applicant claimed in her statement that her children would be targeted and would be abducted to extort money. The Tribunal considered extortion claim against the first applicant but failed to consider the claim of Third applicant (child) would be targeted by criminal gangs to extort money.

(c) The Tribunal thereby fell into jurisdictional error.

5. … The Tribunal fell into jurisdictional error in consideration of the Applicant’s claim of political affiliation with Jamaat E Islami Party – its conclusion is irrational / illogical or unreasonable.

Particulars

(a) The Applicant claimed that membership of the Party in remote areas had a less stringent requirements for membership.

(b) The Applicant claimed that he was recognised as a leader (trp 17 - 18) in the Applicant’s remote home area; the Applicant did not claim have formally become the President.

(c) The Tribunal relied on country information that did not support the conclusion that the requirements of the Party was uniform throughout the country (rather was information on requirements to become a member).

(d) The Tribunal thereby fell into jurisdictional error.

(Emphasis original.)

3    The relevant background and facts appear at J [6]–[33].

4    The first appellant, who appeared on behalf of the appellants, did not file any submissions in support of the Notice of Appeal (despite being ordered to do so) and made oral submissions which addressed difficulties that his family would face if they were returned to Bangladesh, and which did not address the grounds of appeal.

5    At the outset, I note that grounds 3, 4 and 5 of the Notice of Appeal invite this Court to (in effect) consider fresh grounds of review of the Tribunal’s decision in the exercise of its appellate jurisdiction. The appellants require leave to raise new grounds on appeal. That leave has not been sought.

6    Grounds 3, 4 and 5 are identical to the grounds which were contained in an amended application dated 25 January 2019 which was relied upon by the appellants in the proceedings below. I observe that the appellants were represented in that proceeding. These grounds were abandoned when the appellants filed a further amended application which contained one ground. No explanation has been provided by the appellants for the failure to advance these grounds in the Court below or to explain why they are now sought to be advanced in this appeal.

7    The Minister will suffer prejudice if the appellants are permitted to raise these new grounds for the first time on appeal in this Court in circumstances where their rights of appeal from any decision upholding the appellants’ case would be limited: see Han v Minister for Home Affairs [2019] FCA 331 (Bromwich J) at [17] and [20(4)]; see also AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452; [2015] FCA 804 (Perram J) at [14] cited by the Full Court with approval in BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94 (Perram, Perry and O’Callaghan JJ).

8    In these circumstances, I refuse to grant the appellants leave to raise grounds 3, 4 and 5 of their Notice of Appeal, and do not propose to address them further.

9    I now turn to the remaining grounds.

Ground 1

10    By ground 1, the appellants contend that the primary judge “erred by failing to find that the Administrative Review Tribunal whether [sic] the appellant was owed protection obligations by failing to consider claims or integer claims”.

11    The ground of review advanced before the primary judge did not concern a failure to consider claims or integers of claims. Rather, the appellants contended that the Tribunal constructively failed to exercise its jurisdiction to review the decision of the delegate by failing to make an obvious inquiry about a critical fact, the existence of which could easily have been ascertained: J at [32] and [34]. In circumstances where this ground of review was not advanced in the Court below, there can be no error in the primary judge not considering a contention that was not raised.

12    For these reasons, ground 1 is rejected.

Ground 2

13    By ground 2, the appellants contend that the primary judge should have recused himself from hearing the case because the primary judge had served as a member of the same Tribunal that refused the appellants’ application.

14    No recusal application or even suggestion was made to the primary judge that his Honour should recuse himself on this basis.

15    While the appellants have identified the factor which they rely upon to assert a reasonable apprehension of bias (on the assumption that this is the basis for the claimed need for the primary judge to recuse himself), they have not identified any logical connection between that factor and the primary judge’s ability to decide the case other than on its merits. Nor does this fact provide a cogent basis to allege actual bias.

16    The primary judge was appointed to the Court below in around August 2024, and was appointed as a member of the Tribunal in 2022. The latter date was after the Tribunal had made its decision which was the subject of the judicial review proceedings before the primary judge. For that reason, his Honour cannot have had any role in, knowledge of or connection with the particular decision under review. As the affidavit evidence relied upon by the Minister shows, judges of the Court below are routinely drawn from the Tribunal and that, in and of itself, does not mean that those judges are not impartial, or that there is or could be a reasonable apprehension that they are biased.

17    In circumstances where no issue was raised about recusal in the Court below and the appellants have not otherwise identified any logical connection between the fact that the primary judge was a former Tribunal member and his ability to decide the case other than on its merits, this ground also has no merit, and is rejected.

Conclusion

18    For these reasons, the appeal will be dismissed, with costs to follow the event. The Minister seeks a fixed costs order against the appellants in the sum of $8,907.00, which order is appropriate and will be made. An ancillary order will also be made reflecting the change of name of the first respondent.

Associate:

Dated:    20 August 2026