CNA22 v Minister for Immigration and Citizenship [2026] FedCFamC2G 351

1. On 18 July 2022, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 30 June 2022. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (subclass 866) visa under s 65 of the Act.
2. For the reasons that follow, the application to this Court is dismissed.

1. In 2006, the applicant, a citizen of Bangladesh, first arrived in Australia on a Vocational Education and Training Sector (subclass 572) visa.
2. In October 2008, the applicant became an unlawful non-citizen.
3. In October 2016, the applicant was located by the Department of Immigration and Border Protection (Department) and placed in immigration detention.
4. On 9 November 2016, the applicant lodged an application for a protection (subclass 866) visa, claiming to fear a real risk of harm if returned to Bangladesh on the basis of his political support for the Bangladesh Nationalist Party (BNP).
5. Following the lodgment of the protection visa application, the applicant was granted a bridging visa and released from detention.
6. On 14 March 2017, a delegate of the first respondent, after interviewing the applicant in February 2017, made a decision refusing to grant the applicant a protection visa.
7. On 6 April 2017, the applicant applied to the Tribunal for review of the delegate's decision.
8. On 17 May 2022, the Tribunal invited the applicant to appear at a hearing on 6 June 2022, to give evidence and present arguments.
9. On 6 June 2022, the applicant appeared at the hearing before the Tribunal, assisted by his representative and a Bengali interpreter.
10. On 30 June 2022, the Tribunal made a decision affirming the delegate's decision not to grant the applicant a protection visa.

1. The Tribunal at [7]-[18] summarised the applicant's evidence and claims provided to the Department and Tribunal prior to the hearing before the Tribunal on 6 June 2022.
2. The Tribunal at [19]-[42] summarised the applicant's evidence and claims provided during the hearing before the Tribunal on 6 June 2022.
3. The Tribunal at [43] set out relevant country information.
4. In response to the applicant's claims that he was involved with the BNP in Bangladesh up to 2008, the Tribunal at [49] did "not accept that the applicant was involved in any BNP activities prior to his departure in 2006" and did not accept that he attended rallies or was harmed during a holiday in Bangladesh in 2007/2008.
5. The Tribunal at [51]-[62] addressed whether the applicant was a witness of truth and, for reasons explained at [52]-[61], concluded at [62] that "the applicant is not a witness of truth" and "has created his claims in order to obtain the visa sought".
6. The Tribunal at [63]-[65] rejected many of the applicant's claims, including a finding at [65] that "in 2006 and 2007/8 the applicant did not flee Bangladesh fearing serious harm for any of the reasons enumerated in s 5J(1)(a)" of the Act.
7. The Tribunal at [66]-[77], based on its findings concerning the applicant's conduct in Bangladesh, considered whether there was a real chance the applicant will suffer serious harm for a Convention reason on his return to Bangladesh and thereby meet the requirements of s 36(2)(a) of the Act. The Tribunal concluded at [77] that "the applicant does not meet the requirements of s 36(2)(a)".
8. The Tribunal at [78]-[84] considered whether the applicant satisfied the complementary protection criterion for a protection visa in s 36(2)(aa) of the Act. The Tribunal at [84] concluded that "the applicant does not meet the requirements of s 36(2)(aa)".
9. It followed that the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.

Judicial review application and steps up to hearing on 24 February 2026

1. On 18 July 2022, the applicant lodged in this Court an application for judicial review of the Tribunal's decision (Application). The application included three grounds (as written):

Ground 1

The Tribunal failed to provide natural justice opportunity to the applicant.

Particulars

The Tribunal noted in its decision at para 59 and 60 that since the applicant did not raise the claims at the Departmental stage, the AAT may draw adverse inference under s 423 (A) of the Migration Act 1958. The Tribunal did not put the above to the applicant seeking his response. It is submitted that if the applicant was provided with an opportunity, he would have responded which would have changed the decision of the AAT.

Ground 2

The Tribunal failed to assess or engage in genuine and realistic consideration of applicant's activities in Australia under section 36(2)(aa) of the Act.

Particulars

The applicant has provided evidence of his political involvement in Australia and the Tribunal failed to assess under the Complementary protection ground to assess whether he would face significant harm.

Ground 3

The Tribunal failed to consider the Mandatory requirement under the Migration Act.

Particulars

The Tribunal has an obligation to consider most up to date Country information [Ministerial Direction No.84, made under s 499 of the Act,] prepared for the purpose of protection visa assessment and it is noted that in the applicant's application the AAT relied on 2019 report instead of 2021 which is more advantageous to the applicant's claims.

1. The content of the three grounds suggests they were prepared by a lawyer or person familiar with migration law.
2. On 7 October 2022, a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing a written submission, any amended application with proper particulars, and any additional evidence on which the applicant sought to rely.
3. Following a period of inactivity, on 18 December 2025 the parties were notified by the registry of the Court that the matter was listed for hearing on 24 February 2026.
4. On 17 February 2026, the first respondent filed a written submission (RS).
5. The applicant did not file a written submission or any other documents prior to the hearing.

1. At the hearing in this Court on 24 February 2026, the applicant appeared unrepresented. Lisa Liu from Hicksons Hunt & Hunt appeared for the first respondent.
2. I asked the applicant if he had a copy of the Court Book, filed by the first respondent in October 2022, which contained the Tribunal's decision and documents before the Tribunal. The applicant stated that he had access to a copy of the Court Book on his phone. My associate gave the applicant a paper copy of the Tribunal's decision. I explained that the Court's role was limited to considering whether there was a jurisdictional error, which I described as a significant error or mistake, in the Tribunal's decision. With reference to the Tribunal's decision, I explained the main categories of jurisdictional error. I explained that, for the applicant to win the Court proceeding, he must persuade the Court there is a jurisdictional error in the Tribunal's decision.
3. I offered the applicant a 10-minute break to consider oral submissions he wanted to make. The applicant took up this opportunity.
4. After the break, Ms Liu tendered a copy of the Court Book (CB). The applicant did not seek to tender additional evidence.
5. I invited the applicant to make oral closing submissions. The applicant stated that the Tribunal failed to consider a DFAT report on Bangladesh published in 2021. In a context where there was no evidence before me of the existence of such a report and the Minister's position was that no such report exists, I asked the applicant to show me a copy of the report. The applicant was unable to do so. The applicant also contended that he attended a protest at Darling Harbour in April 2018, someone took a photo of him at the protest and, as a result, he fears for his life. The applicant said he raised this issue with the Tribunal.
6. Ms Liu made oral submissions which supplemented the first respondent's written submission filed in February 2026. Ms Liu also responded to the oral submissions made by the applicant at the hearing.
7. I address the parties' submissions below.

1. Section 423A of the Act provided at the time of the Tribunal's decision:

(1) This section applies if, in relation to an application for review of a Part 7‑reviewable decision (the primary decision), the applicant:

(a) raises a claim that was not raised before the primary decision was made; or

(b) presents evidence in the application that was not presented before the primary decision was made.

(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

1. The Tribunal, in considering at [51]-[62] whether the applicant was a witness of truth, recorded that the applicant made three sets of claims to the Tribunal which he did not make to the Department up to the date of the delegate's decision. The three sets of claims were:

(a) the applicant was actively involved with the BNP between 2000 and 2006;

(b) the applicant was assaulted by the Awami League during a visit to Bangladesh in 2007 and paid a bribe to police to leave Bangladesh; and

(c) from 2008 the applicant was a BNP activist in Australia.

1. For each set of claims, the Tribunal at [55]-[57] indicated that it put to the applicant that he had not made these claims to the delegate, recorded the applicant's explanation or response, and recorded its finding in relation to the applicant's explanation or response. For example, the Tribunal stated at [57]:

Fourthly, the applicant did not mention in his PV application, or at interview, that from 2008 he was an active activist in Australia, working with the BNP. His explanation was that he forgot. He did not tell the Department because he was mentally upset and confused. As stated above I do not accept that the applicant was mentally upset and confused. The applicant declared his PV application on 9 November 2016. He made no mention of his involvement in BNP activities in Australia when asked by the delegate at the PV interview held on 28 February 2017, some 3 months later.

1. The Tribunal, after setting out s 423A at [60], stated at [61]:

As discussed above, I do not accept that the applicant did not mention his association with BNP from 2000-2006 in Bangladesh in his PV application, or having to bribe the police to leave Bangladesh in 2007/8, being hospitalised in Bangladesh in 2007 from injuries sustained when attending rallies or being involved in BNP activities from 2008 in Australia was caused by stress, mental confusion or forgetting especially as the applicant claims he went to see a doctor who told him to rest. Therefore, I do not accept that the applicant has a reasonable explanation as to why the evidence was not presented before the primary decision was made. I draw an inference unfavourable to the credibility of the claim.

1. The particulars to ground 1 of the Application are as follows:

The Tribunal noted in its decision at para 59 and 60 that since the applicant did not raise the claims at the Departmental stage, the AAT may draw adverse inference under s 423 (A) of the Migration Act 1958. The Tribunal did not put the above to the applicant seeking his response. It is submitted that if the applicant was provided with an opportunity, he would have responded which would have changed the decision of the AAT.

1. It is unclear whether the applicant's complaint to the Court is:

(a) the Tribunal did not put to the applicant that he "did not raise the claims at the Departmental stage"; or

(b) the Tribunal did not put to the applicant that "the AAT may draw adverse inference under s 423A of the Migration Act".

1. If the applicant's complaint to the Court is that the Tribunal did not put to the applicant that he "did not raise the claims at the Departmental stage", I reject the complaint. According to the Tribunal's reasons at [55]-[57], for each set of claims, the Tribunal put to the applicant at the hearing on 6 June 2022 that he did not raise the claims at the Departmental stage and invited, and then recorded, the applicant's response. There is no evidence before me which suggests the Tribunal's summary in its decision concerning its discussion with the applicant at the hearing is not accurate.
2. If the applicant's complaint to the Court is that the Tribunal did not put to the applicant that "the AAT may draw adverse inference under s 423A of the Migration Act", first, no provision of the Act required the Tribunal to explain to the applicant the effect of s 423A. Second, even if the common law rules of procedural fairness applied to the hearing before the Tribunal (and, in light of s 422B(1), it is not evident that the common law rules of procedural fairness applied), the common law rules of procedural fairness did not require the Tribunal to explain the operation of s 423A to the applicant.
3. For the above reasons, ground 1 does not identify a jurisdictional error in the Tribunal's decision.

1. It is contended in ground 2 that "the Tribunal failed to assess or engage in genuine and realistic consideration of applicant's activities in Australia under s 36(2)(aa) of the Act".
2. The Tribunal at [31] recorded the applicant's claims concerning his BNP-related activities in Australia as follows:

Asked what an active activist does in Australia he said that his role is to tell people to attend BNP marketing days and to inform all BNP members and supporters. There are a couple of groups. In their group there is around 200 members. He works with their leader Rashid. He was told by Mr Haque to encourage people to join the party. From 2017, he was an executive member. Asked what was involved with being an executive member he said it was encouraging people to join the BNP. You have to contact people, to invite people, to attend the BNP marketing days. Like 7 November or 1 September or 26 March or 16 December. His role as an executive member was to invite people to join those days and he was very active when Prime Minister came to Australia in 2018. He was one of the most active at the protest rallies in Darling Harbour. He took attendance of each member who attended the rallies at Darling Harbour in 2018. Lots of people took photographs and video footage at that time. It was shown in England and Bangladesh to the top high ranking BNP officials.

1. The Tribunal at [62], for reasons explained at [51]-[61], was "satisfied the applicant is not a witness of truth who has created his claims in order to obtain the visa sought". The applicant has not challenged this finding in this court proceeding.
2. The Tribunal at [73]-[74], having made the adverse credibility finding concerning the applicant at [62], considered the applicant's claims concerning activities in Australia. The Tribunal stated:

[73] The applicant claims that he attended a demonstration in Darling Harbour in 2018 that targeted the Bangladeshi Prime Minister ... As I do not accept that the applicant is a witness of truth, I do not accept that the applicant attended this demonstration ...

[74] I accept that active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. As the applicant is not a witness of truth, I do not accept that he has been involved in political activity as an active activist or as an executive member or as a supporter of the BNP or JCD either when he lived in Bangladesh or since living in Australia ...

1. The Tribunal's findings at [73]-[74] were a step towards its finding at [77] that "the applicant does not meet the requirements of s 36(2)(a)" and its finding at [84] that "the applicant does not meet the requirements of s 36(2)(aa)".
2. Based on the Tribunal's reasons set out in the above paragraphs, I consider that the Tribunal carefully and genuinely considered the applicant's claims concerning his activities in Australia. That the Tribunal did not accept the applicant's claims does not mean the Tribunal did not carefully and genuinely consider them. The Tribunal's careful and genuine consideration applied to both its conclusion at [77] that "the applicant does not meet the requirements of s 36(2)(a)" and its conclusion at [84] that "the applicant does not meet the requirements of s 36(2)(aa)".
3. I accept that, as stated in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [29], "a statutory provision requiring a Tribunal to give an applicant an opportunity to appear before it and give evidence implies that such evidence is to be given proper, genuine and realistic consideration". However, "a conclusion that the decision-maker has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof" and "the onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner": KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; 292 FCR 15 (KXXH) at [47].
4. With reference to KXXH at [47], the applicant has not identified any evidence, let alone "clear evidence", which supports a conclusion that the Tribunal failed to assess or engage in a genuine and realistic way with the applicant's claims concerning his activities in Australia.
5. For the above reasons, ground 2 does not identify a jurisdictional error in the Tribunal's decision.

1. The Tribunal at [43] considered country information sourced from DFAT Country Information Report Bangladesh dated 22 August 2019.
2. If DFAT had published a more recent country information report concerning Bangladesh prior to the Tribunal's decision on 30 June 2022, the Tribunal may have been required to consider it when considering the political and security situation in Bangladesh at the time of the Tribunal's decision.
3. It is asserted in ground 3 that the Tribunal failed to consider a DFAT report prepared in 2021. However, there is no evidence before the Court that such a report exists. I am not satisfied such a report exists. The Tribunal cannot consider a report which does not exist.
4. Further, even if such a report exists, to establish materiality (see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321), the applicant would need to identify information in the report which might realistically have affected the Tribunal's decision.
5. For the above reasons, ground 3 does not identify a jurisdictional error in the Tribunal's decision.

1. The applicant contended that the Tribunal failed to consider a DFAT report on Bangladesh published in 2021. I address this issue above under the heading "Ground 3".
2. The applicant contended that he attended a protest at Darling Harbour in April 2018, someone took a photo of him at the protest and, as a result, he fears for his life. The applicant said he raised this issue with the Tribunal. As indicated in paragraph 47 above, the Tribunal at [73] considered and rejected this claim.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. If the Application was dismissed, Ms Liu sought an order that the applicant pay the first respondent's costs in the amount of $5,000, which was less than the first respondent's solicitor/client costs.
2. The applicant stated he was not employed and unable to pay this amount. However, as stated in Northern Territory of Australia v Sangare [2019] HCA 25; 265 CLR 164 at [26] and [27], "the impecuniosity of an unsuccessful party, without more, is not a sufficient reason for depriving a successful party of its costs" and "the statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant in person". The applicant, by filing and progressing the Application to hearing, has forced the first respondent to incur legal costs. His claimed limited financial position does not affect a determination of an appropriate amount in the present matter.
3. The amount claimed by the first respondent is reasonable. I will make this order.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.