DWC20 v Minister for Immigration and Citizenship [2026] FedCFamC2G 359

1. By application filed on 21 August 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 27 July 2020. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) not to grant the applicant a protection (class XA) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The following background is derived from the Minister's written submissions and information in the Court Book which, unless otherwise indicated, is not in dispute.
2. The applicant is a citizen of Bangladesh. On 28 May 2016, the applicant arrived in Australia as the holder of a visitor visa.
3. On 22 June 2016, the applicant applied for the visa, subject of the review. On 18 January 2017, the delegate refused the applicant the visa sought.
4. On 2 February 2017, the applicant lodged a review application with the Tribunal.
5. On 15 May 2020, the Tribunal invited the applicant to appear before it to give evidence and present arguments.
6. On 8 June 2020, the applicant provided a statement to the Tribunal in support of his review application.
7. On 10 June 2020, the applicant appeared before the Tribunal. The hearing was adjourned and the Tribunal requested that the applicant provide any further documents he sought to rely upon by 17 June 2020.
8. On 16 June 2020, the Tribunal invited the applicant to a further hearing.
9. On 17 June 2020, the applicant provided the Tribunal with a further statutory declaration and supporting documents.
10. On 19 June 2020, the applicant attended the further hearing.
11. On 30 June 2020, the applicant provided further supporting documents and country information in support of his review application.
12. On 27 July 2020, the Tribunal affirmed the decision under review.

1. The issue before the Tribunal was whether the applicant was a person with respect of whom Australia owed protection obligations.
2. At [6]-[20], the Tribunal set out the applicant's protection claims and summarised the background of the matter and the evidence before it. The applicant's protection claims were summarised as follows:

The applicant initially sought protection as a supporter of the opposition Bangladesh Nationalist Party's (BNP) student wing, but he has since abandoned these claims. He now claims to be a supporter of the ruling Awami League (AL), and to have held positions in its student and youth wings. He claims that a local member of a rival faction of the AL's youth wing, who is engaged in criminal activities, has tried to drive the applicant out of the party.

The applicant was subject to a serious assault in August 2014, and was in hiding in various parts of Bangladesh until his departure for Australia in May 2016. He claims that this faction leader continues to monitor his activities in Australia, and will use his extensive political contacts throughout the country to pursue and harm him if he returns to Bangladesh. Neither AL political leaders nor the police will act to prevent this harm.

1. At [21]-[23], the Tribunal noted that the Department had issued a certificate under s 438(1)(a) of the Act on 6 February 2017. The Tribunal found the certificate was not valid as it did not specify a reason that could form the basis for a claim to public interest immunity. At the hearing, the Tribunal alerted the applicant and his representative to the certificate, its views about the certificate's validity and the relevance of the information to the review. They noted this without comment.
2. At [24]-[25], the Tribunal noted that the Department of Home Affairs (the Department) file included allegations relating to the applicant and that a certificate was issued in relation to the document containing those allegations. The Tribunal advised the applicant at hearing of the existence of the certificate, and its preliminary view that it properly identified a public interest reason for non-disclosure of the material. The Tribunal noted that it provided the applicant with the gist of the allegation and that neither the applicant nor the representative commented on the validity of the certificate.
3. At [26], the Tribunal noted it advised the applicant that it would place no weight on the anonymous allegation, as it could not test the reliability of the information in it or determine the motivation of the informant. The applicant commented that he believed his former migration agent had made the allegation, as he was the only person who knew that he had 'sought protection on the basis of his (untruthful) BNP membership'.
4. At [27], the Tribunal found that Bangladesh was the receiving country for the purposes of assessing his protection claims.
5. At [28]-[48], the Tribunal drew adverse credibility findings against the applicant's new claims and evidence on the basis of s 423A of the Act.
6. The Tribunal noted at [28], that it had taken into account the 'AAT Migration and Refugee Division's Guidelines on the Assessment of Credibility'. At [29], the Tribunal stated the following:

The Tribunal has significant concerns about the credibility of the applicant's claims and evidence. In his original application, he claimed to be a member of the BNP and to fear persecution from the ruling AL party and its thugs. However, at the Tribunal hearing and in his submission to the Tribunal, he presented new claims based on his membership of the AL, and internecine fighting among its factions. Furthermore, in his protection visa application, the applicant concealed his past travel to and residency in the UK, his conviction there of a criminal offence, his asylum claim there, and his deportation back to Bangladesh. Rather, he claimed to have lived in Bangladesh from birth until 2015.

1. The Tribunal considered the applicant's explanations, including those claiming stress and mental health issues. The Tribunal did not accept the applicant had any mental health issues that affected his capacity to present his case, or that supported his claim to fear returning to Bangladesh. Moreover, the Tribunal found that the claims about the BNP and the supporting evidence provided were false.
2. The Tribunal noted the applicant's allegations against his migration agent including that he knowingly crafted false protection claims on the applicant's behalf, told him to give untruthful information about his travel and criminal history; recommended that he lie to a Department officer and, by implication, was involved in some way in the supporting documents that the applicant submitted.
3. At [46], the Tribunal stated:

The Tribunal is unable to assess the applicant's allegations. Nonetheless, the Tribunal considers that the applicant knowingly relied on these false claims, and that he only corrected the record about his AL membership and past residency in the UK after the Department put specific information to him. The Tribunal is satisfied that the applicant has not provided a reasonable explanation for his failure to present to the primary decision maker the new claim that he is affiliated with the AL and that he fears harm due to factional conflict.

1. At [47], the Tribunal found that the applicant did not genuinely fear persecution or significant harm as a result of his affiliation with the Awami League (the AL), and that he did not believe he required protection on those grounds.
2. At [49]-[51], the Tribunal outlined country information regarding intra-party violence within political parties in Bangladesh.
3. The Tribunal summarised the applicant's claims regarding his involvement with the AL and Bangladesh Jubo Leave (the BJL) in the period leading up to 2004. At [60], the Tribunal considered evidence given by the applicant, including screenshots of a Facebook post, and accepted he supported the AL, the BJL, and that he had participated in party activities while in the UK, Australia, and Bangladesh: at [58], [60], [63], [65], [66], and [68].
4. However, it did not accept that the applicant was targeted by political rivals on various occasions. The Tribunal found that the applicant 'exaggerated his role' within the party, and that the applicant did not have any political profile that might render him of adverse interest: at [59]-[63], [67], [78]-[91].
5. The Tribunal accepted that the applicant supported the AL and BJL, and that if returned home, he would continue his involvement with those parties. Further, it accepted that general country information indicated that there were high levels of political violence in Bangladesh: at [93]-[94].
6. However, the Tribunal found the applicant would not face a real chance of serious harm from anyone associated with the AL or BJL (of a political, social or networking capacity) on the basis that, at [95]:
   • First, the Tribunal infers from the applicant's failure to present such claims in his primary application that he has no genuine fears relating to rival AL factions, and that he realises any such fears would not be well-founded.
   • Second, it has rejected the applicant's claims that he has a history of past enmity with the Bidhan Group; that they targeted and assaulted him in August 2014; and that he fled Bangladesh in response to ongoing threats. Even though the applicant has remained involved in the Bangladeshi community and AL-associated groups in Australia, his stay of more than four years in Australia further reduces any profile he may have had in the Sylhet AL/BJL, as well as his prospects of gaining any prominence or influence if he returns there. Taking all these factors in to account, the Tribunal finds that there is no real chance of the Bidhan Group targeting the applicant on his return to Bangladesh.
   • Third, even if the Bidhan Group continues to engage in criminal activities in some parts of Sylhet, the Tribunal finds that there is no real chance that the applicant will require protection, and of the AL-led authorities denying him protection on political grounds (such as his non-membership of the Bidhan Group), or any other s.5J(1) ground in a discriminatory manner.
7. The Tribunal also did not accept that the applicant's claimed fear of persecution, which it did not accept was genuine or well-founded, related to all areas of the country: at [96].
8. Further, the Tribunal did not accept the applicant has filed a complaint against a specific individual ('BS') or anyone, with resulting criminal charges. It found that there was no real chance of any accused persons targeting the applicant to withdraw his allegations, or for revenge. Similarly, it did not accept that there were any pending criminal charges against the applicant, such that BS or anyone had fabricated, linked with his work with the AL and BJL: at [97].
9. The Tribunal was also not satisfied the applicant would need to modify his behaviour, if he were to continue to engage in political activities in Bangladesh, to avoid a real chance of persecution: at [98].
10. At [99], the Tribunal concluded that the applicant did not face a real chance of serious harm amounting to persecution, for any reason set out in s 5J(1) of the Act, in Bangladesh, in the reasonably foreseeable future and therefore, did not meet s 36(2)(a).
11. The Tribunal then considered whether the applicant met the complementary protection criteria: at [100]-[102]. Having regard to its earlier findings of fact, the Tribunal did not find the applicant would face a real risk of being arbitrarily deprived of his life; that the death penalty would be carried out on him; that he would be subjected to torture, cruel or inhuman treatment or punishment; or that he would be subjected to degrading treatment or punishment.
12. The Tribunal ultimately affirmed the decision of the delegate not to grant the applicant a protection visa.

1. The originating application, filed with the Court on 21 August 2020, advanced seven grounds of judicial review. The applicant also filed an affidavit containing documents provided in the Court Book, as such, the affidavit was not taken into account.
2. On 28 October 2020, the Minister filed the Court Book. On 10 December 2020, the Minister filed a Supplementary Court Book.
3. On 19 January 2021, the Minister filed their written submissions. Nothing was filed by the applicant.
4. The parties appeared at a hearing on 11 February 2026 at the Parramatta Registry of the Court.
5. At the hearing, the Court Book was tendered into evidence and marked Exhibit CB. The Supplementary Court Book was also tendered and marked Exhibit SCB.
6. The applicant appeared in person and was assisted by an interpreter in the Bengali and English languages. The Minister was represented by Mr M Al-Rifai of Clayton Utz.
7. Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the matters that would normally be considered by the Court, when determining an application for judicial review.

1. The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
2. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [3] the High Court per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, explained that:

... Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness. [citations omitted]

1. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT at [32].
2. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang).

1. The grounds of judicial review advanced by the applicant were as follows (without alteration):

Ground 1

The Tribunal failed to provide natural justice opportunity to respond to the issues which it considered part of the reason for the refusal.

Particulars

1. The Tribunal in its decision noted (para 74) that the applicant has provided a medical report in his post hearing submission and based on the report the Tribunal raised credibility concern in its decision. However, the Tribunal failed to alert or provide any opportunity to the applicant to provide his response or comment. Accordingly, the AAT breached the principle of natural justice.

2. The Tribunal raised question on the authenticity of the documents submitted by the applicant namely, the news report and failed to alert or invite the applicant to provide his response on the issue. As a result of that, the AAT has breached the principle of natural justice. (See Para 77-78 of the AAT decision)

Ground 2

The Tribunal failed to provide reasonable and adequate time to the applicant to provide further documents.

Particulars

The applicant has advised the Tribunal that he intended to provide further documents in support of his claims for a protection visa and requested the Tribunal to provide time. The applicant submitted that due to COVID 19, he needed more time to obtain documents from overseas to support his claims. Though, the applicant has lived in Australia for some time, however, he presented his new claims to the Tribunal only this year. Tribunal, though given time till end of June 2020, however, it is submitted that it is not reasonable time given the reasons the applicant provided to the Tribunal.

Ground 3

The Tribunal failed to advert, consider and assess the applicant's claim for protection.

Particulars

1. The applicant noted that he would face harm from intra-party conflict and the Tribunal failed to consider the above claim.

b. The Tribunal failed to consider applicant's status as failed asylum seeker.

1. The Tribunal failed to consider applicant's claim under the complementary protection, namely, his activities in Australia.

Ground 4

The second respondent failed to give the applicant information and invitation in accordance with section 424A of the Migration Act 1958 in respect of "information" it had "gotten" from the Department about Facebook and applicant's UK immigration history.

Ground 5

The Tribunal failed to advice the applicant about the issue of prevalence of fraudulent documents in Bangladesh and failed to provide relevant country information and failed to invite the applicant to comment on.

Ground 6

The Tribunal deprived the Applicant of procedural fairness in failing to invite the applicant to provide comment or respond to the existence of a section 438 certificate, which was revoked by the Department.

Particulars

The Tribunal noted that the Department has revoked the Certificate, and though it advised the applicant, however, it failed to invite the applicant to comment or respond.

Ground 7

The Tribunal deprived the Applicant of procedural fairness in failing to properly disclose the existence of a section 438 certificate, and invite the applicant to comment on or respond under section 424A or 424 AA of the Migration Act.

1. By ground one, the applicant alleges failure on the part of the Tribunal to afford him 'natural justice' by not inviting him to comment on or respond to information which it considered as part of its reasons for affirming the decision under review. In the particulars to this ground, the applicant identified the medical report and news report that he provided in support of his application.
2. When invited to speak to this ground at the hearing, the applicant said all his documents were true and correct, and that everything that happened to him was true. He took issue with the Tribunal not accepting his documents and not believing his claims.
3. Ground one, as articulated in the originating application, alleges a breach of the obligation in s 424A and/or s 424AA of the Act to invite the applicant to comment on or respond to information which may be the reason or part of the reason for affirming the decision under review.
4. The Full Federal Court in SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [80]-[87], [91] discussed the complementary operation of s 424A and s 424AA, noting that the relevant information can be given in writing or orally at the hearing. The Full Court, per Tracy and Foster JJ, considered that 'the information' covered by each of the sections 'must be the same'. Their Honours said at [90]:

Section 424A(1) prescribes what must be done. What must be done is subject to the exceptions in subs (2A) and subs (3). Section 424AA is thus facultative - it is one way by which the Tribunal can satisfy the substance of what is required of it under s 424A(1). If it elects to invoke s 424AA, it may do so expediently and by way of oral communication rather than by written communication. Given the primacy of s 424A(1) and the exceptions to it, it would be absurd to interpret the section in a way which exempted country information from the s 424A(1) requirements but did not do so in respect of the s 424AA requirements.

1. As submitted by the Minister, the documents in issue were provided by the applicant for the purposes of the review application. Accordingly, I accept that the documents did not constitute 'information' for the purposes of s 424A because they fell within the exceptions provided for by s 424A(3)(b).
2. It is also accepted that the Tribunal did not need to put to the applicant its concerns regarding the credibility or authenticity of the stated documents, as it is well established that 'information' for the purposes of s 424A does not include 'the existence of doubts, inconsistencies or the absence of evidence': SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18].
3. In so far as the stated documents are concerned, the applicant has not demonstrated breach of ss 424A or 424AA by the Tribunal.
4. In respect of the applicant's oral submissions, on their face, they seek to engage this Court in impermissible merits review. It was for the Tribunal to consider the evidence before it and determine for itself whether it accepted the applicant's claims. It is not for this Court to assess the truth (or otherwise) of the applicant's claims for protection. Nor is it within the jurisdiction of this Court to assess the authenticity or credibility of the applicant's documents: Wu Shang Liang.
5. Ground one does not establish jurisdictional error.

1. By ground two, the applicant alleges failure on the part of the Tribunal to give him reasonable time to provide further evidence in support of his new claims for protection.
2. When invited to speak to this ground, the applicant indicated he had nothing further to say.
3. The Tribunal reasons at [19] disclose that the applicant and his representative emphasised that they needed more time to collect supporting documents on the basis that COVID-19 had affected Bangladesh badly and that 'people are not doing the jobs they are supposed to'.
4. I accept, as submitted by the Minister, that the procedural history of the matter and the reasons contained in the Tribunal's decision, do not support the applicant's contention that he was not given reasonable time to provide further evidence.
5. The applicant was invited to a hearing on 10 June 2020, which was adjourned. On 17 June 2020, the applicant provided a statutory declaration and supporting documents but indicated he required additional time to provide further documentation.
6. On 16 June 2020, the applicant was invited to a further hearing on 19 June 2020. At the hearing, the applicant requested time to provide further documents. On 30 June 2020, the applicant provided further documents to which the Tribunal had regard. The Tribunal made its decision on 27 July 2020.
7. In considering the nature of the documents the applicant wished to provide if given time, the Tribunal said at [59]:

...The applicant commented vaguely that he thought there were reports on [BS]'s profile outside Sylhelt, but that because of the COVID-19 pandemic, he needed more time to collect such reports. He did not specify these reports; or describe any recent efforts to obtain them; or explain why he had not already obtained them in the more than four years since lodging his protection visa application in May 2016.

At hearing, the applicant claimed that BS and his men continue to monitor him in Australia, mainly through his social media postings. Asked for details, he said that they follow him on Facebook, probably via friends of friends. The applicant said that he needed more time to substantiate these claims, and that he was feeling drained after recently losing a relative to COVID-19 and from his community work in Sydney. The Tribunal found these comments to be improvised and speculative, and does not accept that BS, his associates or anyone opposed to the applicant's support for the AL is monitoring the applicant, or considers him a person of adverse interest.

1. The Tribunal's reasons at [59]-[63] disclose the basis upon which it rejected the applicant's claims to fear harm from BS or his associates. Its findings with respect of these claims were open to it for the detailed and comprehensive reasons it gave, and it cannot be said that these findings would have been any different had it received reports about the profile of BS outside Sylhet.
2. I accept that the Tribunal's reasons disclose an evident and intelligible justification for why it did not delay the review to enable the applicant to provide documents (or reports) about BS's profile. The Tribunal's decision to proceed to a decision does not disclose any legal unreasonableness on its part.
3. Ground two does not establish jurisdictional error.

1. By ground three, the applicant contends failure on the part of the Tribunal to properly consider his claims to fear harm due to 'intra-party' conflict and as a failed asylum seeker. He also contends failure by the Tribunal to consider his activities in Australia under the complementary protection criterion.
2. It is well established that a decision-maker must read, identify, understand, and evaluate the representations made by an applicant: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021).
3. The High Court in Plaintiff M1/2021 per Kiefel CJ, Keane, Gordon, and Steward JJ stated at [25]:

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

1. In respect of the claim to fear harm for reasons of intra-party conflict, the Tribunal's decision at [46] referred to the applicant's new claim that he was affiliated with the AL and that he feared harm due to factional conflict. At [51] the Tribunal cited country information relevant to inter- and intra- party violence among political parties in Bangladesh, and at [93]-[94] it accepted, based on the country information before it, that there were high levels of political violence in Bangladesh.
2. The Tribunal also set out the applicant's claims and evidence concerning the different factions within the BJL. It accepted that the applicant supported the AL and BJL, and that if he returned to Bangladesh, he would continue his involvement with AL and BJL. In considering the applicant's claims and the evidence before it, the Tribunal found at [95], that the applicant would not face a real chance of serious harm from anyone associated with the AL or BJL (of a political, social or networking capacity): s 5J(1)(b).
3. A fair reading of the Tribunal's reasons demonstrate that the Tribunal properly considered the applicant's claim to fear harm due to factional conflict. No error is disclosed in the Tribunal's assessment of the evidence relevant to that claim and, having regard to its reasons, it cannot be said that it finding was not open to it.
4. In respect of the applicant's contention that the Tribunal did not consider his claim to fear harm due to being a failed asylum seeker, it is well established that the Tribunal must not only address any express claims, but also 'unarticulated claim[s] which [are] nevertheless raised clearly or squarely on the material before that review body': NABE v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 (NABE), 18-20 at [58]-[70].
5. The Tribunal was not required to consider a claim that was not expressly made or was not 'tolerably clear' from the materials before it. Nor was it required to undertake its own independent analytical exercise of the material before it for discovery of potential claims which might have been made, but which were not: DFU16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 222 at [17]; citing NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15].
6. No express claim was made by the applicant that he feared harm in Bangladesh on account of being a failed asylum seeker. Nor could it be said that any such unarticulated claim was 'tolerably clear' from the material before the Tribunal. As submitted by the Minister, the material before the Tribunal indicated that the applicant, after having been denied asylum in the UK, returned to Bangladesh and did not experience serious harm on the basis of being a failed asylum seeker: at [12]-[14]. Further, the Tribunal found that the applicant did not have any political profile that would bring him to the adverse attention of the authorities in Bangladesh. I accept that no such unarticulated claim (relevant to the applicant being a failed asylum seeker) was required to be considered by the Tribunal.
7. As to the contention that the Tribunal did not consider his activities in Australia under the complementary protection criterion, this is without merit. The Tribunal did consider at [100]-[102], the applicant's claims by reference to the complementary protection criterion. In doing so, the Tribunal relied upon its earlier findings at [95], that the applicant did not face a real chance of being subject to serious harm upon return to Bangladesh, which included consideration of the applicant's involvement in political activities in Australia: at [90], [91], and [95]. I accept that it was open to the Tribunal to rely on common factual findings when disposing of the applicant's claims in relation to both the refugee and complementary protection criteria: SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121; (2015) 232 FCR 452 at [36].
8. Ground three does not establish jurisdictional error.

1. By ground four, the applicant contends a failure by the Tribunal to comply with its procedural obligations in s 424A to invite him to comment on or respond to information obtained from the Department from his Facebook profile and concerning his UK immigration history.
2. By way of background, the Minister noted that the information obtained from Facebook posts and the information relating to the applicant's UK immigration history was put by the delegate to applicant at the protection visa interview, and the applicant was invited to comment on that information in writing pursuant to ss 57 and 58 of the Act. It was also noted that the applicant's UK immigration history was summarised by the delegate in their decision (at CB 86), and that a copy of the delegate's decision was provided to the Tribunal with the application for review: at CB 92. The Minister noted that the information before the delegate conflicted with the applicant's claims that he was a member of the BNP and had never travelled outside Bangladesh.
3. In relation to the information obtained by the Department from the applicant's Facebook profile, the descriptions of the relevant posts were set out in the delegate's decision record (at CB 87) which indicated that the applicant was an AL (and therefore, not a BNP) supporter.
4. On review, the applicant abandoned his claim to be a supporter of the BNP and claimed to be a supporter of the AL: at [6]. As submitted by the Minister, the Facebook screenshots showed that the applicant was an AL supporter and this supported, rather than undermined, his new claims before the Tribunal that he was in fact a supporter of the ruling AL. At [17], the Tribunal also records that the applicant provided screenshots from Facebook showing his participation in AL events. At [60], the Tribunal also refers to the delegate's description of one of the photographs (from March 2016) when he was in the UK which supported the applicant's claimed association with the AL.

1. The Minister submitted that the Facebook screenshots were not the 'reason, or a part of the reason, for affirming the decision under review' for the purposes of s 424A. The Minister contended that, in fact, the Tribunal referred favourably to one of the Facebook screenshots and accepted that it was plausible that the applicant had been involved in AL activities while in the UK: at [60]. Further, at [65] the Tribunal relied on other Facebook screenshots obtained by the delegate before it accepted at [66] that the applicant was involved in the AL.
2. I accept that the information conveyed by the Facebook screenshots, which led the Tribunal to accept at [66] that the applicant was involved with the AL and participated in AL activities, did not undermine the applicant's new claim to be an AL supporter and was not, for this purpose, a reason or part of the reason for affirming the decision under review. However, the Facebook screenshots, on one view, could also be considered to have formed part of the reason for Tribunal's adverse credibility finding at [28]-[30] which, in part, led to the Tribunal not accepting the applicant's new claim: at [47]. For these reasons, I am not entirely persuaded by the Minister's argument that the Facebook posts did not form part of the reason for the Tribunal affirming the decision of the delegate.
3. That said, however, the information conveyed by the Facebook posts did not attract the obligation in s 424A (or s 424AA) because the information, to the extent it was relied upon by the Tribunal, was set out in some detail in the delegate's decision record and the screenshots of Facebook posts showing the applicant's participation in AL activities in Bangladesh and Australia were also provided by the applicant to the Tribunal.
4. So in respect of the information in the Facebook posts, the applicant has not established that it was information which attracted the operation of s 424A of the Act.

UK immigration history obtained by the Department.

1. Before the Tribunal, the applicant gave evidence that he had lived in the UK for eight years and had been deported after serving time in prison: at [12]. This, as noted by the Minister, was consistent with the information covered by the revoked s 438 certificate concerning the applicant's UK immigration history: at CB 109.
2. The information relating to the applicant's UK immigration history was also set out in the delegate's decision record: at CB 86. I accept, therefore, that this information fell under the following two exceptions and therefore there was no obligation to put it to the applicant under ss 424A or 424AA of the Act:

(a) section 424A(3)(b) - information which the applicant gave for the purpose of his review application to the Tribunal because the information was set out in the delegate's decision record: Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 at [16]; and

(b) section 424A(3)(ba) - information which was provided by the applicant, orally at the hearing, during the process that led to the Tribunal's decision: at [12].

1. Ground four does not establish jurisdictional error.

1. By ground five, the applicant contends that the Tribunal failed to invite the applicant to comment upon country information (about the prevalence of fraudulent documents in Bangladesh) which formed part of its reason for affirming the decision under review.
2. To the extent that this ground alleges breach of the obligation in s 424A or s 424AA, this ground has no merit as the Tribunal is generally not not required to invite an applicant to comment on or respond to country information. As noted by the Minister, country information falls within the exception provided for in s 424A(3)(a) of the Act and was not required to be put to the applicant under s 424A or s 424AA: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [66]-[71] and [138].
3. That said, I have not been able to identify anywhere in the reasons country information, upon which the Tribunal relied, relating to the prevalence of document fraud in Bangladesh. The only references to fraudulent documents in the decision is at [12], where the Tribunal recorded the applicant's evidence that he was convicted of passport fraud in the UK, and at [67], where the Tribunal said it placed minimal weight on the 'purported letter of 23 April 2014', in part, because of the applicant's past reliance on fraudulent documents.
4. Ground five does not establish jurisdictional error.

1. By ground six, the applicant contends failure on the part of the Tribunal to invite the applicant to comment on or respond to the existence of a s 438 certificate, which had been revoked.
2. In so far as this ground relates to the first non-disclosure certificate (at CB 97), which was purportedly revoked: at CB 137. At [21]-[23], the Tribunal set out how it dealt with that certificate and said the following:

[21] The certificate stated that folios 66-75 contain information, the disclosure of which would be contrary to the public interest because they relate to 'internal working documents and business affairs'. The certificate relates to the following: (a) UK advice to the Australian authorities about the applicant's migration record in that country; and (b) screenshots from the applicant's Facebook account, which his allegiance to the ruling Awami League.

[22] In light of the Federal Court decision in MZAFZ v M/BP5 , which considered a s.438 certificate with similar wording, the Tribunal finds that the certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal further notes that the relevant information from those folios is set out in the delegate's decision record, pages 6 and 7; a copy of which the applicant provided to the Tribunal with the review application. At hearing, the Tribunal alerted the applicant and his representative to the certificate, and its views about its validity and the relevance of the information to the review. They noted this without comment.

[23] On 15 June 2020, a Department officer purportedly revoked the certificate of 6 February 2017, on the basis that it had not identified a valid reason for stating the public interest. The revocation incorrectly refers to s.376 of the Act. The Tribunal alerted the applicant to this. Given its view on the relevance of the material, it took no further action.

1. The Tribunal informed the applicant and his representative of the certificate. It also informed them of its views about its validity of the certificate and the relevance of the information covered by the certificate to the review. Neither the applicant nor the representative provided comments.
2. In the circumstances, it cannot be said that any procedural fairness issues arose from the Tribunal's treatment of the first non-disclosure certificate, particularly in circumstances where the certificate was invalid and the information covered by the certificate, in so far as it was relevant to the issues in the review, was set out in the delegate's decision record.
3. The applicant has not demonstrated any breach of procedural fairness obligations, nor have I been unable to discern any error, on the part of the Tribunal in its treatment of the first non-disclosure certificate issued under s 438, the information covered by the certificate or the purported revocation of that certificate.
4. Ground six does not establish jurisdictional error.

1. By ground seven, the applicant contends a failure on the part of the Tribunal to notify him of the existence of a s 438 certificate and invite him to comment on or respond under s 424A or s 424AA of the Act.
2. As identified by the Minister, ground seven appears to be directed at the non-disclosure certificate issued under s 438 of the Act (the second non-disclosure certificate) which covered an anonymous allegation made against the applicant.
3. The evidence before the Court does not support the applicant's assertion that he was not informed of the existence of the second non-disclosure certificate. At [25], the Tribunal said that it had informed the applicant at the hearing of the existence of the certificate and of its preliminary view that the certificate was valid. It noted that it informed the applicant of the 'gist of the anonymous allegation' covered by the certificate. The Tribunal was correct to find that the second non-disclosure certificate was valid on the basis that it provided a valid public interest reason for the non-disclosure of the information: at [24].
4. At [26], the Tribunal said that it informed the applicant that it would place no weight on that allegation as it could not 'test the reliability of the information in it or determine the motivation of the informant'. The Tribunal also noted at [25], that neither the applicant nor his representative made any comments regarding the validity of certificate. As to the information covered by the certificate, the 'gist' of which was disclosed to the applicant, the Tribunal noted the applicant's comments at the hearing that he believed the allegations were made by his former migration agent as he was the only person who knew the applicant had applied for protection on the basis of his '(untruthful) BNP membership'.
5. I accept that the Tribunal was not required to put the content of the certificate or the information covered by the certificate under s 424A or s 424AA of the Act. This is because the relevant information contained in the allegations, which formed the reason or part of the reason for affirming the decision under review, had already been provided to the Tribunal (as part of the delegate's decision or by the applicant's own admissions) that he was not a BNP supporter as initially claimed and was in fact a supporter of the ruling AL party. Further, the Tribunal expressly stated that it would place no weight on the allegations, and its reasons do not disclose reliance on any of the other information stated in the allegations.
6. The applicant has not demonstrated any breach by the Tribunal of its obligation under s 424A or s 424AA of the Act in connection with its treatment of the second non-disclosure certificate or the information covered by that certificate.
7. Ground seven does not establish jurisdictional error.

1. As none of the grounds raised establish jurisdictional error, the application for judicial review must be dismissed.

1. At the hearing, the Minister sought an order that the applicant pay their costs fixed in the amount of $8,371.30. When invited to make submissions with respect to costs, the applicant did not challenge the Minister's application for costs or the amount sought.
2. In this case, I am satisfied that costs should follow the event. Further, having regard to the work undertaken and the scale costs for a standard migration matter, I will order that the applicant pay the amount sought by the Minister.

I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.