CUH19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 961

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 18 July 2019, the applicant filed 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 4 July 2019. 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 is dismissed.

1. In March 2005, the applicant, a citizen of Bangladesh, arrived in Australia on a Vocational Education Sector visa.
2. On 9 April 2015, the applicant lodged an application for a protection visa with the Department of Immigration and Border Protection (Department). The applicant claimed to fear a real risk of serious harm if he returned to Bangladesh on the basis of his political involvement in the Bangladesh Nationalist Party (BNP).
3. On 15 January 2016, a delegate of the first respondent, after interviewing the applicant on 23 October 2015, made a decision refusing to grant the visa.
4. On 28 January 2016, the applicant applied to the Tribunal for review of the delegate's decision.
5. On 6 April 2018, the Tribunal invited the applicant to attend a hearing on 13 June 2018.
6. On 13 June 2018, the applicant, assisted by his representative, appeared before the Tribunal to give evidence and present arguments.
7. On 4 July 2019, the Tribunal made a decision affirming the delegate's decision not to grant the applicant a protection visa.

1. The Tribunal at [5]-[9] considered the criteria for a protection visa.
2. The Tribunal at [12]-[35] reviewed the applicant's written claims and evidence. The "applicant claimed that he left Bangladesh because his life was in danger on account of his political activities", "he had been politically active since 1996 and ... had opposed various regimes that have come to power", "he was detained for a period of one month ... and while he was in detention he was subjected to physical and mental torture": at [13]. As recorded by the Tribunal at [19]-[25], the applicant provided a number of documents in support of his claims.
3. The Tribunal at [36]-[65] made findings concerning the applicant's claims. The Tribunal at [38]-[42] explained its concern about the applicant's long delay in applying for a protection visa. The Tribunal at [43]-[54] explained its concern about the applicant's failure to raise his protection claims during many previous interactions with the Department. In a context where the applicant claimed to have been an active member of the BNP, the Tribunal at [55]-[58] explained its concern about the applicant's scant knowledge about the BNP and inconsistencies in his evidence about the BNP. The Tribunal at [61]-[65] considered the applicant's social media posts. The Tribunal found that the applicant "clearly has an interest in Bangladeshi politics and has been posting about political developments for some time on his social media" (at [63]), but the Tribunal was "satisfied that he was not genuinely fearful about the consequences of posting political content on his social media profile" (at [63]), and the Tribunal did not accept that merely posting articles critical of the Bangladesh government meant the applicant would face a real risk of serious harm on return to Bangladesh.
4. The Tribunal at [66]-[69] concluded that the applicant was not "a witness of truth about his past harm in Bangladesh" and "fabricated his protection claims", gave no weight to letters the applicant provided in support of his claims, was not satisfied other documents the applicant provided in support of his claims were legitimate, and considered there was no real chance of serious harm, or real risk of significant harm, to the applicant arising from his social media profile.
5. The Tribunal at [70]-[72] concluded that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2) of the Act.

Judicial review application and steps up to hearing on 10 June 2025

1. On 18 July 2019, the applicant filed in this Court an application for judicial review of the Tribunal's decision which contained the following grounds (as written) (Application):

Ground 1

The Tribunal fell into error to ask the correct questions-whether the Applicant is likely to suffer harm in his home country Bangladesh due to involving with BNP politics.

Particulars

(i) The Tribunal focus that the applicant the will face discriminating treatment or harassment might experience from there family or current regime of the country to reach the threshold for finding of serious or significant harm as described and defined in the Act (s5J (5); s(36) (2A) of the Act).

(ii) The Tribunal did not accept that the applicant has suffered any harassment and discretionary treatment from the opponents while he was in Bangladesh due to his political affiliation with the Bangladesh Nationalist Party (BNP).

(iii) The Tribunal made the decision without making an inquiry on (Awami League) AL atrocities against the applicant previously and is there any real fear of his life if returns to Bangladesh.

(iv) The Tribunal failed to ask itself whether the applicant could be subject to harm by his powerful political opponents the AL.

Ground 2

The Tribunal erred and failed to judge convention nexus/complementary protection whether a period of his exile from home would amount of "significant harm" (s36[2A]) or serious harm (s91R[2]) and section 5 of the Migration Act 1958 (the Act) and thereby committed jurisdictional error and she failed to even consider a complementary protection criteria. Alternatively, the Tribunal fell into error in that it applied to an incorrect test as to whether the applicants are likely to suffer harm for the purpose of complementary protection.

Particulars

(i) The Tribunal found that the applicant did not suffer any harmful treatment by his opponent and the police while he was studying at Dhaka, Bangladesh and involved in BNP student wing's politics until he came to Australia using an international student. 31/03/2005.

(ii) Thought there were thousands of BNP activists and leaders were killed in since 2009-2019 by the AL goons and police-but the Tribunal Member did not take in to consideration of the real fact of the atrocities.

(iii) The police of the country have killed many student leaders of the BNP after the 2014 election held again before the national election held on 30 December 2018.

(iv) The other funding that, killing, detaining and kidnaping the BNP leaders and activists continuing in this successive AL regime.

Ground 3

The Tribunal in making finding that the applicant will not face any problem previously while he was in Bangladesh and he will not face any harm if he returns to his country which is illogical and thereby fell into jurisdictional error.

Particulars

(i) The Tribunal found that the applicant is not a credible person and the Applicant did not satisfy the criterion set out in s 36(2)(a).

(ii) The Tribunal found that the BNP activists are not subject to harm and attacked by the AL and police.

(iii) The Tribunal fell in to error as it was failed to distinguish between AL regime arrogant attitude towards the BNP activists in the country and applicant will not suffer any harm from AL regime.

Ground 4

Delay of lodging a protection visa application is the main reason to refuse the review application at the AAT and affirm the decision not to grant the application for protection visa.

Particulars

(i) The main risk of the applicant is that the applicant is very vocal against AL atrocities around the year in the various social media particularly around the year.

(ii) The present AL regime already detained many BNP activists, journalist and bloggers who are vocal against present AL Government in the social media or in the printing media.

(iii) The applicant when wanted return to Bangladesh then the AL is in power and killed already thousands of BNP activists, leaders.

(iv) The applicant had no other options without making an onshore protection visa application to save his life from AL regime.

(v) There is no time frame to make an onshore protection visa application.

(vi) The police and AL successive regime committed heinous against BNP activists those crimes include, detention, severe beating in the detention for police custody for forceful admitting of a heinous crime against government.

(vii) The applicant will face dare consequence from his powerful opponent if he returns to his country but the Tribunal did not consider it.

(viii) The claim arose on the material.

(ix) The Tribunal thereby committed jurisdictional error.

1. On 16 October 2019, the applicant filed a written submission (AS).
2. Following a period of inactivity, on 30 April 2025 the registry of the Court informed the parties that the matter was listed for hearing on 10 June 2025.
3. On 28 May 2025, the first respondent filed a written submission (RS).

1. At the hearing in this Court on 10 June 2025, the applicant appeared before the court unrepresented. Ella Hilder from the Australian Government Solicitor appeared for the first respondent.
2. The applicant did not bring to the hearing a copy of the Court Book, which contained the Tribunal's decision and documents before the Tribunal, filed and served by the first respondent in September 2019. Ms Hilder gave the applicant a second copy of the Court Book. I directed the applicant's attention to the Tribunal's decision in the Court Book. I explained to the applicant that, if he wants to win his case in the Court, he must persuade the Court there is a jurisdictional error, which I described as a significant mistake or error, in the Tribunal's decision. With reference to the Tribunal's decision, I explained the main categories of jurisdictional error. I then offered the applicant a 15 minute break so that he could consider oral submissions he wanted to make. The applicant took up this opportunity.
3. Ms Hilder tendered a copy of the Court Book.
4. The applicant sought to tender an audio recording of the hearing before the Tribunal on 13 June 2018. On the evening of 9 June 2025, the applicant sent an email to my chambers and the first respondent's solicitor which attached the audio recording and in which the applicant stated that he wanted to tender the audio recording (9 June Email). He stated in the email that he wanted to tender the audio recording because "certain portions of the hearing were removed or edited, which affected the completeness of the record" and "the omitted parts were critical in presenting my case accurately". I did not understand how this explanation related to an error in, or in relation to, the Tribunal's decision.
5. In response to the applicant's request to tender the audio recording, I asked the applicant to explain orally why he wanted to tender the audio recording. The applicant replied that the Tribunal member was not friendly, did not ask him questions about his application, and told the applicant he was not an important person. Again, I did not understand how this explanation related to an error in, or in relation to, the Tribunal's decision.
6. The 9 June Email indicated that the applicant received a copy of the audio recording in April 2022. Yet, he did not notify the first respondent's solicitor until the evening before the hearing in this Court on 10 June 2025 that he wanted to rely on the audio recording. I asked the applicant to explain his three year delay in notifying the first respondent's solicitor. The applicant gave a non-responsive answer.
7. I asked the applicant to explain how the audio recording related to the grounds in the Application. The applicant was unable to answer this question.
8. Since the applicant:

(a) was unable to relate the audio recording to a ground of review in the Application;

(b) was unable to explain the relevance of the audio recording to establishing a jurisdictional error in the Tribunal's decision;

(c) had not identified or particularised the parts of the audio recording which were "were critical in presenting my case accurately" (words from 9 June Email); and

(d) had not explained his significant delay in notifying the first respondent that he wanted to rely on the audio recording at the hearing in this Court,

I rejected the tender of the audio recording.

1. The 9 June Email also attached some medical documents concerning the applicant's medical condition in the last month. The applicant sought to tender the medical documents. I rejected the tender on grounds of relevance.
2. The applicant also provided a two-page written submission to the Court titled "Second submission" (Second Submission).
3. The applicant made oral submissions. He stated that the Tribunal did not accept his evidence. I asked the applicant to identify the evidence which he complains the Tribunal did not accept. The applicant referred to a letter referred to in the Tribunal's decision at [20]. I told the applicant that the Tribunal at [67] rejected the authenticity of the letter. I asked the applicant to explain any error in the Tribunal's reasons or finding at [67]. The applicant was unable to identify an error.
4. The applicant stated that he has lived in Australia for 20 years, he loves Australia and Australia is his home.
5. Ms Hilder, in her oral submissions, principally relied on the first respondent's written submission filed in May 2025.

1. A preliminary observation is that it is difficult to understand the grounds and particulars in the Application, and to match parts of the applicant's written submission with grounds and particulars in the Application. I agree with an observation of the first respondent at RS [20] that "the particulars to these grounds (and their explanation in the written submissions) are not necessarily related or contained to their ground of review".

1. The opening sentence of ground 1 contends that the Tribunal erred in not "ask[ing] the correct questions - whether the applicant is likely to suffer harm in his home country Bangladesh due to involving with BNP politics". Particular (iv) contends that "the Tribunal failed to ask itself whether the applicant could be subject to harm by his powerful political opponents the AL". These contentions are repeated in the applicant's written submission at AS [16] and [20].
2. In relation to these contentions, I consider that the Tribunal at [5]-[9] identified the correct questions it needed to address and at [66]-[71] made findings which addressed those questions.
3. Particular (iii) contends that the Tribunal failed to "mak[e] an inquiry on Awami League ... atrocities against the applicant". As correctly stated by the first respondent at RS [22], many of the applicant's complaints (including particular (iii)) "seek, in various forms, to impugn the Tribunal's finding that the applicant would not suffer harm from the Awami League if returned to [Bangladesh] as a result of his claimed involvement with the BNP", but "these grounds all fail at a factual level, as the Tribunal rejected the applicant's claim that he was involved in the BNP party on the basis of adverse credibility findings".
4. Ground 1 and its particulars do not identify a jurisdictional error in the Tribunal's decision.

1. The opening sentence of ground 2 contends that the Tribunal "erred and failed to judge convention nexus/complementary protection whether a period of his exile from home would amount to 'significant harm' ...". But, first, the applicant never raised a claim based on a "period of his exile from home". Second, even if the applicant raised a claim based on a period of exile, the claim appears to be subsumed by the Tribunal's finding at [67] that the applicant "fabricated his protection claims".
2. The second sentence of ground 2 contends that "the Tribunal fell into error in that it applied an incorrect test as to whether the applicants are likely to suffer harm for the purpose of complementary protection". For reasons explained above in respect of ground 1, I consider that the Tribunal at [5]-[9] identified the correct questions it needed to address and at [66]-[71] made findings which addressed those questions.
3. The particulars to ground 2 state some matters without alleging an error in the Tribunal's decision.
4. It is stated in the applicant's written submission at AS [24] under the heading "Ground 2" that "the Tribunal fell into error as it failed to differentiate the applicants' are likely to suffer harm as a BNP leader in Australia if return to Bangladesh". The meaning of this complaint is unclear.
5. Ground 2 does not identify a jurisdictional error in the Tribunal's decision.

1. The opening sentence of ground 3 contends that the Tribunal's findings that "the applicant will not face any problem previously while he was in Bangladesh and he will not face any harm if he returns to his country" is "illogical". First, the particular finding of the Tribunal which the applicant complains is illogical is not identified. Second, the applicant has not explained why the (unidentified) finding is illogical.
2. Particular (iii) contends that "the Tribunal fell into error as it failed to distinguish between AL regime arrogant attitude towards the BNP activists in the country and applicant will not suffer harm from AL regime". The meaning of this complaint is unclear.
3. The remaining particulars refer to findings of the Tribunal without alleging an error in the Tribunal's decision.
4. It is stated in the applicant's written submission at AS [30] under the heading "Ground 3" that "the Tribunal denied the applicants procedural fairness in limiting the applicant in presenting his case in proper way". The applicant has not explained how the Tribunal limited the applicant in presenting his case, nor provided evidence to establish the complaint.
5. Ground 3 does not identify a jurisdictional error in the Tribunal's decision.

1. The opening sentence of ground 4 summarises an aspect of the Tribunal's decision. The particulars to ground 4 state some matters which the applicant may have raised with the Tribunal. As correctly stated by the first respondent at RS [25], "the applicant does not allege any actual errors under this ground".
2. It is stated at AS [33] under the heading "Ground 4" that "the Tribunal applied the wrong test in relation to s 5 and s 36(2A) of the Migration Act". For reasons explained in paragraph 34 above, I am not persuaded that the Tribunal applied the wrong test.
3. It is also stated at AS [33] that the Tribunal "failed to address an integer/claim regarding the claim of involving with BNP Australia branch". The Tribunal at [58] considered the applicant's claims concerning his involvement with the BNP Australia branch. I am not persuaded that the Tribunal failed to consider an integer of the applicant's claims.
4. Ground 4 does not identify a jurisdictional error in the Tribunal's decision.

Second Submission and oral submissions at hearing on 10 June 2025

1. The applicant, in the Second Submission and in his oral submissions at the hearing on 10 June 2025, sought to persuade the Court that he should be permitted to remain in Australia. These submissions did not identify an error in the Tribunal's decision.

1. In light of the serious consequences for the applicant if there is a jurisdictional error in the Tribunal's decision and the fact he has not obtained any legal assistance with his judicial review application, on application of the approach stated in Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543 at [23], "I have scrutinised the papers and the Tribunal's reasons to see whether there was reviewable error" to the extent of "a mistake [which] clearly appears in the Tribunal's reasons". No mistake clearly appears in the Tribunal's reasons for decision.
2. For the above reasons, the application to this Court must be dismissed.

1. At the conclusion of the hearing, I invited the parties to make submissions on costs. Ms Hilder sought an order that the applicant pay the first respondent's costs in the sum of $5,400 which was less than the first respondent's solicitor/client costs. The applicant did not oppose this amount. I consider the amount sought by Ms Hilder is reasonable. I will make this order.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.