CTO22 v Minister for Immigration and Citizenship [2026] FedCFamC2G 336

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 19 August 2022, the applicants 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 8 August 2022. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants protection (subclass 866) visas under s 65 of the Act.
2. For the reasons that follow, the application to this Court is dismissed.

1. The first applicant (Applicant) and second applicant are husband and wife respectively. The third applicant (born in 2003) and fourth applicant (born in 2012) are children of the Applicant and second applicant. The applicants are citizens of Bangladesh.
2. In 2004, the Applicant first arrived in Australia on a student visa. Since then, the Applicant has returned to Bangladesh on five occasions up to November 2014.
3. In March 2017, the applicants lodged an application for protection (subclass 866) visas. The primary claims in the application were by the Applicant. The second, third and fourth applicants were included as members of the Applicant's family unit.
4. On 16 January 2019, a delegate of the first respondent, after interviewing the Applicant on 20 November 2018, refused to grant the applicants the visas. The delegate found the Applicant was not a credible witness and did not believe the Applicant's claims for protection.
5. On 28 January 2019, the applicants applied to the Tribunal for review of the delegate's decision.
6. On 27 June 2022, the Tribunal invited the applicants to appear at a hearing to give evidence and present arguments on 25 July 2022.
7. On 25 July 2022, the Applicant appeared at the hearing before the Tribunal, with the assistance of a Bengali interpreter.
8. On 8 August 2022, the Tribunal made a decision affirming the delegate's decision not to grant the applicants protection visas.

1. The Tribunal at [16]-[28] summarised the Applicant's claims. The Applicant claimed he was involved with the Bangladesh National Party (BNP) while he lived in Bangladesh and, as a result, he experienced harm and threats of harm.
2. The Tribunal at [29]-[60] considered whether the Applicant's claims were credible. The Tribunal identified multiple inconsistencies in the Applicant's evidence. The Tribunal at [30] did "not accept that the [A]pplicant is a credible witness" and found "he has fabricated claims and concocted evidence to achieve an immigration outcome". The Tribunal at [51] recorded previous misrepresentations by the Applicant to the Department of Immigration and Border Protection (Department) in previous applications for other visas and at [53] referred to these misrepresentations as "repeated instances of providing misleading information to the Department". The Tribunal at [54] repeated its findings at [30] that it "does not find the [A]pplicant to be a credible, truthful and reliable witness" and "the [A]pplicant has fabricated claims and concocted evidence to achieve an immigration outcome". The Tribunal at [60] found that it "rejects [the Applicant's] claims in their entirety including that he will be involved in the BNP on return".
3. The Tribunal at [61]-[73] considered whether the applicants had a well-founded fear of persecution in relation to Bangladesh, including because of generalised violence or insecurity in Bangladesh. The Tribunal at [73] concluded that it was "not satisfied that any of the applicants face a real chance of persecution involving serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion if they return to Bangladesh in the reasonably foreseeable future".
4. The Tribunal at [61]-[75] considered whether the applicants satisfied the complementary protection criterion in s 36(2)(aa) of the Act. The Tribunal at [77] concluded that it was "not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa)".
5. It followed that the Tribunal affirmed the decision not to grant the applicants protection visas.

Judicial review application and steps up to hearing on 26 February 2026

1. On 19 August 2022, the applicants lodged in this Court an application for judicial review of the Tribunal's decision (Application). The Application included two grounds (as written):
   1. The Administrative Appeals Tribunal (AAT) has failed to apply relevant law in its decision making process

The AAT failed to disregard the Applicant's conduct in Australia (ie Applicant's children schooling in Australia and the Applicant has been living in Australia for 18 years) when determining whether the person has a well-founded fear of persecution under 5J(6) of the Migration Act (Paragraph 70 and 71 of the AAT decision record).

1. The Administrative Appeals Tribunal (AAT) made a decision which is illogical, irrational, capricious, unreasonable and unjust.

1. Following a period of inactivity, on 18 July 2025 a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicants file and serve at least 28 days before the hearing a written submission, any amended application with proper particulars, and any further affidavit evidence on which the applicants seek to rely.
2. On 18 December 2025, the parties were notified by the registry of the Court that the matter was listed for hearing on 26 February 2026.
3. On 12 February 2026, the first respondent filed a written submission (RS).
4. The applicants did not file a written submission or any other documents prior to the hearing.

1. At hearing in this Court on 26 February 2026, the Applicant appeared unrepresented, assisted by a Bengali interpreter. The Applicant stated that he appeared on behalf of the remaining applicants, and they were aware he was appearing at the hearing today. James Fyfe from MinterEllison appeared for the first respondent.
2. The Applicant brought to the hearing a copy of the Court Book, filed by the first respondent in November 2023, which contained the Tribunal's decision and documents before the Tribunal. At the commencement of the hearing, I directed the Applicant's attention to the Tribunal's decision. I explained that the Court's role was limited to considering whether there is 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 applicants to win the Court proceeding, the Applicant must persuade the Court there is a jurisdictional error in the Tribunal's decision.
3. Mr Fyfe tendered a copy of the Court Book (CB). The Applicant did not seek to tender additional evidence.
4. I invited the Applicant to make oral submissions. The Applicant explained to the Court why he returned to Bangladesh a few times between his initial arrival in Australia in 2004 and 2014. I reminded the Applicant to focus on the Tribunal's reasons for decision and identify and explain any errors in the Tribunals' decision. The Applicant, after spending a few minutes looking at the Tribunal's reasons for decision, stated that the Tribunal did not hear the Applicant properly and did not make an effort to understand the Applicant's evidence.
5. Mr Fyfe, in his oral submissions, principally relied on the first respondent's written submission filed in February 2026.

The AAT failed to disregard the Applicant's conduct in Australia (i.e. Applicant's children schooling in Australia and the Applicant has been living in Australia for 18 years) when determining whether the person has a well-founded fear of persecution under 5J(6) of Migration Act. (Paragraph 70 and 71 of AAT decision record)

1. Section 5J(6) of the Act states:

In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.

1. The particulars of ground 1 refer to the Tribunal's decision at [70] and [71]. The Tribunal at [70] considered the Applicant's claim on behalf of the third and fourth applicants "that the schooling is better in Australia than in Bangladesh". The Tribunal, while accepting that the level of schooling in Bangladesh is not as good as in Australia, found the applicants did not face a real chance of persecution involving serious harm or a real risk of significant harm for this reason. The Tribunal at [71] considered whether, because the Applicant had been outside Bangladesh for many years, he faced a real chance of serious harm on this basis. The Tribunal found that the Applicant did not face a real chance of persecution involving serious harm or a real risk of significant harm for this reason.
2. Section 5J(6) of the Act does not appear to be applicable to the claims considered by the Tribunal at [70]-[71]. As correctly stated by the first respondent at RS [18], "this ground is misconceived".
3. Even if s 5J(6) of the Act was applicable and the Tribunal erred by failing to apply s 5J(6), it does not appear that the application of s 5J(6) could benefit an applicant. As stated by the first respondent at RS [22], "it is inconceivable that disregarding matters put by the applicant to advance their case could have been to their detriment", and so the error by the Tribunal was "immaterial as there could not realistically have been a different outcome".
4. For the above reasons, ground 1 does not identify a jurisdictional error in the Tribunal's decision.

1. Ground 2 lacks particulars. A "failure to particularise a ground of review is itself a sufficient basis to dismiss it": NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37].
2. For the above reasons, ground 2 does not identify a jurisdictional error in the Tribunal's decision.

1. During the hearing in this Court on 26 February 2026, the Applicant contended that the Tribunal did not hear the Applicant properly and did make an effort to understand the Applicant.
2. 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].
3. The Tribunal's reasons for decision indicate that the Tribunal member gave genuine consideration to the Applicant's claims and evidence. That the Tribunal member considered the Applicant was not a credible witness and "has fabricated claims and concocted evidence to achieve an immigration outcome" (at [30]) does not mean the member did not genuinely consider the Applicant's claims and evidence. With reference to KXXH at [47], the Applicant has not identified any evidence, let alone "clear evidence", which supports his assertion that the Tribunal did not genuinely consider his claims.
4. This contention does not identify a jurisdictional error in the Tribunal's decision.
5. For the above reasons, the Application must be dismissed.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. If the application was dismissed, Mr Fyfe sought an order that the first, second and third applicants pay the first respondent's costs in the amount of $5,900, which was less than the first respondent's solicitor/client costs and less than the scale amount of $9,097.93.
2. In relation to whether a costs order should be made against the second and third applicants, as stated above:

(a) The second applicant is the wife of the Applicant.

(b) The third applicant is a child of the Applicant and second applicant, and was born in 2003. The third applicant was about 19 years old when the Application was filed.

1. The Applicant stated that no costs order should be made against the second applicant because she does not have a job and cannot afford to pay a costs order; and no costs order should be made against the third applicant because, although he has a job, he cannot afford to pay a costs order with his limited income. As stated in Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 (Sangare) 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".
2. The second and third applicants signed the Application (see CB 6), were both adults at the time this proceeding commenced, both benefited from being parties to the court proceeding (by obtaining bridging visas to remain in Australia while the proceeding continued), would both benefit if the Court granted the applicants the relief sought in the Application, were both aware of the hearing on 26 February 2026, and consented to the Applicant appearing on their behalf at the hearing. By being involved in the filing of the Application and the progression of the Application to hearing, they forced the first respondent to incur legal costs. I consider it appropriate that the costs order be against the second and third applicants in addition to the Applicant.
3. In relation to whether I should make a costs order in the amount of $5,900, the Applicant stated he was unable to pay this amount as he is the sole income earner for his family and, as stated above, the second applicant does not work and the third applicant has a limited income. Based on the principle stated above in Sangare, the applicants' claimed limited financial position does not affect a determination of an appropriate amount of costs in the present matter.
4. I consider the amount claimed by the first respondent is reasonable. I will make this order.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.