EYU18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 717

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. The applicant seeks judicial review of a decision of the second respondent (Authority) made on 23 August 2018. The Authority affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (visa).
2. Reference in these reasons to "CB" pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit "R1".

1. The applicant is a citizen of Bangladesh. He arrived in Australia by sea on 1 June 2013 as an unauthorised maritime arrival (CB 151).
2. On 5 August 2013, the applicant participated in an Induction Interview (CB 5-25) and explained that his reasons for leaving Bangladesh were due to political involvement with the opposition Government group, Bangladesh Nationalist Party (BNP). The applicant claimed that his life was threatened by the then Government party, the Awami League, when they demanded money from him and imprisoned him for three hours (CB 13-4). He claims he was released from prison when his brother promised to pay the demanded fee (unspecified amount). The applicant and his brother were then unable to pay and "after that I left the country as if they find me they will kill me..." (CB 14).
3. At the Induction Interview, the applicant was asked to elaborate on his involvement with BNP. In response the applicant is recorded as saying (CB 14):

EYU18: I have no main role in the party, I just support BNP.

...

Interviewing Officer: what did that involve, being a supporter?

EYU18: Just I don't do any political activities, but I just support them and give vote to BNP.

...

Interviewing Officer: But how do you show that?

EYU18: I do some protests, I join with the protests. When they do protests against the government, I joined with the group.

1. On 20 June 2016, the applicant was invited to apply for the visa (CB 26-30). The applicant applied for the visa on 19 August 2016 and retained a registered migration agent to act on his behalf (CB 131-173). On behalf of the applicant, the migration agent provided extensive country information including media articles documenting attacks on opponents of the Awami League Government in Bangladesh (CB 31-130).
2. In the applicant's visa application form 790C, the applicant repeated his response to questions in the Induction Interview and made additional claims that his family are avid supporters of BNP and that he has was involved with the BNP branches in Malaysia and in Sydney, Australia since his arrival (CB 162-3):

The reason I seek protection in Australia is based on my political opinion and activities. I am an active supporter of the BNP and my family is strong supporters of the BNP which is the main opposition party in Bangladesh. I used to involve in political campaign in 2001 when I was 16 years old. I left Bangladesh during the caretaker government because the caretaker government started targeting the BNP supporters with Awami League. Due to my political opinion, I fear 1 would face serious harm including torture, degrading and inhuman treatment and killing if I returned to Bangladesh. I fear the Awami League members and supporters would do that to me. The police would not help me. I fear even if I move to other parts of Bangladesh, I will continue to face harm because of my political opinion. I involved in supporting the BNP party in Malaysia as well as we have a small branch there. After coming to Australia I continued to support the BNP and involve with the Australian BNP.

1. In response to question 92 on the application form 790C - Did you seek help within the country after the harm? The application responded that caretaker government was in power in 2007, and they targeted BNP supports with the help from the Awami League (CB 163).
2. On 12 March 2018, the applicant and his agent were invited to attend an interview to be conducted on 26 March 2018 (CB 191-4).
3. On 21 March 2018, the applicant's agent provided the Minister with a statement in which he repeated his claims for protection made in the 790C application form (CB 210-11, 212-13).
4. On 3 April 2018, the applicant's agent informed the Minister that the applicant would be providing further submissions in support of his claims for protection by 6 April 2018 (CB 218) and asked the delegate not to make a decision on the application until the submissions were received. No further submissions were forthcoming from the agent or the applicant.
5. On 4 May 2018, a delegate of the Minister refused to grant the applicant the visa (CB 219-237). The delegate accepted that the applicant was a low-level member of BNP in Australia, however found that the applicant was not a person to whom Australia owed protection obligations under ss 36(2)(a) or (aa) of the Migration At 1958 (Cth) (Act).
6. On 10 May 2018, the applicant was notified that the decision of the delegate had been referred to the Authority for fast track review (CB 241-7). In that notification letter, the applicant was informed that:

The IAA will proceed to make a decision on your case on the basis of the information sent to us by the Department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction

1. On 23 August 2018, the Authority affirmed the delegate's decision to refuse to grant the applicant the visa (CB 262-279) (Decision).

1. The Authority did not consider any further information and had regard only to the information given to it by the Secretary of the Ministerial Department pursuant to s 473CB of the Act (CB 266 [3]-[4]). The Authority did not seek to further interview the applicant.
2. The applicant's claims were summarised in paragraph [5] of the Decision (CB 266-7). The Authority found that the applicant made claims in the Induction Interview that were inconsistent with the claims made in his application forms and a subsequent SHEV Interview. These inconsistencies were put to the applicant at the SHEV interview and the applicant is recorded as saying that he gave a false account of the circumstances leading to arrival in Australia because a "people smuggler" told him to do so that he could get a visa (CB 267 [8]). This was a matter of concern to the Authority. The Authority found that the applicant's evidence about his family's claimed strong support of the BNP was generally weak and unconvincing (CB 267 [8]-[9]).
3. The Authority was not satisfied that the applicant or members of his family were actively involved in BNP activities but was prepared to accept that they may have voted for the BNP in elections and been bystanders in an audience to listen to election speeches (CB 267-8 [9]-[10]).
4. The Authority then addressed the applicant's claims of extortion with threats of violence (CB 268-9 [12]). The Authority considered the claims to be vague and that there was no credible evidence that the applicant or any of his family members had been threatened as claimed or extorted by people representing the Awami League at the times alleged (CB 268-9 [12]-[13]). Other and more recent claims made by the applicant were also rejected by the Authority (CB 270-1 [17]-[18]).
5. At paragraph [20] of the Decision the Authority held (CB 271-2):

[20]...There is no credible evidence before me that the applicant has propounded any views antithetical to the AL government, nor has he stated in evidence that he proposes to do so. There is no credible evidence before me to demonstrate that he intends to become an activist at any level or to participate in confrontational or violent BNP demonstrations or protests or to join any of the auxiliary organisations of the BNP and I do not accept that he does so intend. I have not accepted that the applicant was a strong or active supporter of the BNP, and on all the evidence before me, including that he did not know what the BNP stand for or believe in, and that his only BNP involvement before leaving Bangladesh in 2007 was attending with the local crowds to watch election speeches in 2001, I find that the applicant has significantly exaggerated and embellished his and his family's involvement in support of the BNP and the claimed resulting consequences. I do not accept his written claim that if he returns to Bangladesh he will continue to be involved in political activities, at least not to any extent beyond his previous low-level passive support as I have accepted. I do not accept the claims in the SHEV application submissions that the applicant has a known local political profile, or was a long-term political activist of the BNP, or that he will be considered an enemy of the government. I also do not accept that his persecutors perceive him as a potential political future leader of the BNP.

1. The Authority found that the applicant was not a refugee within the meaning of ss 5H(1) and 5J of the Act because the applicant did not have a well-founded fear of persecution and because of that well-founded fear is unable or unwilling to return to his country of nationality (CB 272-4 [21]-[28]). It did so after considering relevant country information prepared by the Department of Foreign Affairs and Trade (DFAT). The Authority found that the applicant does not meet the requirements of s 36(2)(a) of the Act and therefore was not entitled to protection on that basis.
2. The authority then found that the applicant did not satisfy the complementary criteria for protection under s36(2)(aa) of the Act (CB 274-5 [30]-[34]). The Authority therefore affirmed the decision of the delegate to refuse the applicant the visa.

1. On 20 September 2018, the applicant filed an application for judicial review in this Court (CB 280-5). The grounds of review contained in the application for judicial review are handwritten and appear to be as follows:

1. Immigration Assessment Authority recognised my substantial claim that I am a victim but failed to assess circumstances according to law and thus this is jurisdictional error.

2. I was not provided sufficient hearing to find out the justice. It was decided [illegible] therefore my fundamental right of hearing refused and this is against the Natural Justice.

Equality before the law is fundamental part of Australian and International law since the advent of Magna Carta. I was not given a fair hearing thus the decision maker did not follow the procedural fairness in my case. I request Honourable Court to examine all facts and provide justice. Under the subsection 474(2) of the Migration Act Honourable Court has jurisdiction to find out the substantive claim of the applicant and subjective decision made by IAA. A jurisdictional error is injustice. This injustice must be examined.

1. The application for judicial review was supported by an affidavit neither affirmed or sworn by the applicant on 17 September 2018 (CB 286-303). In that affidavit the applicant said:

I am seeking judicial review in the Federal Circuit Court of Australia. Jurisdictional error/Natural Justice/ Procedural Fairness.

1. A copy of the Decision was annexed to the affidavit.
2. On 19 May 2020, a Registrar of this Court made orders for the applicant to file and serve any amended application with proper particulars of the grounds of review, any supplementary court book and written submissions 28 days before the date fixed for a hearing by the Court.
3. The hearing of the application for judicial review was fixed for hearing on 9 April 2025 at Melbourne. No further material was filed by the applicant pursuant to orders made by the Registrar. No further particulars of the grounds of review have been provided.
4. The applicant appeared at the hearing on 9 April 2025 in person assisted by an interpreter fluent in the Bengali and English languages. Ms Bosnjak, solicitor, appeared on behalf of the Minister.

1. The Court confirmed that the applicant had received a copy of the Court Book prepared on behalf of the Minister and the Minister's outline of written submissions filed with the Court on 26 March 2025.
2. Noting that the applicant was unrepresented, the Court explained that this Court cannot review the merits of the Authority's decision to not grant the visa. Rather, the role of the Court is restricted to determining if the Authority made a jurisdictional error in arriving at the Decision (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang)). The Court explained that it could not grant the applicant a visa but could send the application back to the Authority (now the Administrative Review Tribunal) for reconsideration, if there was a significant legal or factual error that meant the Authority acted contrary to law and without jurisdiction. However, the mistake or error by the Authority must be more than simple disagreement with the outcome of the review.
3. The Court referred the applicant to the application for judicial review and asked the applicant to explain why he believed the Decision was wrong and should be remitted for reconsideration (CB 281-5).
4. The applicant claimed that he was not "good at understanding the legal matters" and that he respected the Decision made by the Authority. He relied on submissions prepare by his former solicitors that were submitted to the Department in 2016 (CB 31-130). He said that his former solicitors explained why he could not return to Bangladesh. The Court directed the applicant's attention to the Decision and explained that the Authority did not accept his claim that he required protection from persecution or suffer significant harm if he were to return to Bangladesh and asked the applicant to explain why that finding was not made according to law. The Court then directed the applicant to the first ground in the application for judicial review and asked the applicant to explain that ground (CB 283). The applicant could not do so. He said that his economic background was "not great" and his English was very limited. He wrote the application for judicial review with some help from a solicitor, but he could not expand on what was written as he did not understand.
5. The applicant was directed to the second ground of review and the claim of a denial of a sufficient hearing and jurisdictional error, but he again said that this was written by the solicitor on his behalf and he did not understand. He explained that he came to Australia to "save his life", he had many issues with his family in his country and had been deprived of a life with his family for eighteen years. He came to Australia twelve years ago and wants to live here because his life was not safe in Bangladesh. He asked that he be given a chance to have an easy life and for the Court to save his life so he may spend the rest of his life in Australia. The applicant was otherwise unable to assist the Court to identify error in the Decision.

1. The solicitor for the Minister relied on the outline of written submissions filed with the Court on 26 March 2025. In those submissions the Minister addressed each of the grounds of review in the application for judicial review.
2. Insofar as the applicant claimed to be "a victim" in ground one, the Authority was not satisfied that was the case. The Authority rejected the applicant's claims as lacking credibility and corroboration. It was submitted that the Authority considered each of the applicant's claims after considering the information provided to it including country information prepared by DFAT. The applicant did not identify any claim that was not properly considered by the Authority or any error of fact or law, nor was any error apparent from the reasoning in the Decision. It was submitted that there was no merit in ground one of the application for judicial review.
3. In relation to the second ground of review the Authority conducted a fast-track review of the delegate's decision under Part 7AA of the Act. There was no obligation to extend common law procedural fairness as the statutory provisions exhaustively state the natural justice requirements to be observed by the Authority (see DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [69]). There was no fundamental right to a hearing and the ground of review was misconceived but also lacked particularity as to how the applicant had been denied a hearing contrary to law and why the Decision contained jurisdictional error. The remainder of the ground comprised broad statements regarding injustice but no meaningful content. It was submitted that the second ground should also be dismissed.

1. In reply, the applicant sought to explain to the Court that his father and brother were in fact active members of the BNP and victims of violence and persecution. If he returns to Bangladesh, he believes he too will be a victim of persecution for his political beliefs. This was due to his past and continuing support of the BNP in Bangladesh and now Australia. The Court reminded the applicant that it could not review the merits of the Decision or revisit the factual findings of the Authority.

1. The function of this Court is to review the Decision and determine if the Authority has fallen into error by failing to conduct the statutory task of reviewing the application for the visa in accordance with law.
2. In Wu Shan Liang at 272 the High Court said:

In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney General (NSW) v Quinn (26):

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

1. Therefore, it is not for this Court to review the merits of the Decision or to reconsider the weight given by the Authority to the evidence produced before it. The weight to be given to the evidence was in the domain of the Authority and not by a judge conducting judicial review (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per Nicholson J).
2. In this case, the task of the Authority was to assess whether the applicant was entitled to protection under s 36 of the Act. The criteria to be applied by the Authority as decision-maker are identified in the Act. Not every claim for protection will satisfy those criteria. The Authority considered all of the applicant's claims and did so after considering the applicant's evidence of his fear of persecution or harm should he return to his home country. The Authority was not satisfied that the applicant's claims were credible and therefore he did not satisfy the necessary statutory criteria.
3. The Authority also afforded the applicant procedural fairness as it was required to do under the Act. The common law rules of procedural fairness do not apply (see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (BVD17) at [30] and [33]). Section 473DA and Div 3 of Part 7AA of the Act (before it was recently repealed) provided an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. In ground two of the application for judicial review, the applicant does not identify how the Authority did not afford procedural fairness in the conduct of the review. The Decision reflects a careful analysis of all the evidence and the country information available to the delegate and the Authority.
4. The criteria for a protection visa are set out in s 36 of the Act and Sch 2 to the Migration Regulations 1994 (Cth). An applicant for a protection visa must satisfy one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other complementary protection grounds, or is a member of the same family unit of such a person and that person holds a protection visa of the same class.
5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s 5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b) of the Act.
6. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K to 5LA, of the Act. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations. The Minister may be so satisfied if the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm: s 36(2)(aa). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B) of the Act.
7. The grounds of review identified by the applicant in the application for judicial review do not assist his cause. They are vague and unclear. The applicant does not articulate why or how the Authority failed to "assess the circumstances according to law". He was unable to assist the Court when he appeared at the hearing. There was no attempt to identify actual jurisdictional error other than disagreement with the conclusions reached by the Authority in the Decision.
8. The Authority gave detailed consideration of the evidence presented to it by the Secretary. That included the applicant's evidence given in the SHEV application forms, The Induction Interview and the SHEV Interview on 26 March 2018. The Authority then considered Country Information prepared by DFAT relevant to supporters of the BNP in Bangladesh and the risk of harm faced by them. The Authority was not persuaded that there was a real risk or a real chance of the applicant suffering significant harm based on his profile and circumstances. That conclusion was open to it on the evidence available and was reasonable and logical. No jurisdictional error of the kind referred to by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2024) 418 ALR 152; [2024] HCA 12, at [3] has been identified by the applicant.
9. In relation to the second ground of review, there was no failure to afford procedural fairness by the Authority when undertaking a fast-track review of this kind under Part 7AA of the Act. The common law rules of procedural fairness do not apply (see BVD17 at [30] and [33]). Section 473DA and Div 3 of Part 7AA of the Act (before it was recently repealed) provided an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. In ground two of the application for judicial review, the applicant does not identify how the Authority did not afford procedural fairness in the conduct of the review. The Decision reflects a careful analysis of all the evidence and the country information available to the delegate and the Authority. There was no requirement that the Authority provide the applicant with a hearing, or a further interview and the Authority did not seek to rely on any new information not otherwise considered by the delegate.
10. The applicant was unable to identify how the Authority failed to give him a hearing or why it was obliged to give him a hearing when conducting a Part 7AA review of the delegate's decision. The second ground of review and narrative supplementing it does not disclose jurisdictional error by the Authority and are misconceived.
11. Noting that the applicant appeared before this Court without legal assistance, the Court also scrutinised the Decision for jurisdictional error after considering the materials in the Court Book and the applicant's oral submissions (see MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [15], [77], [100], and [112]-[114]). No discernible error could be identified.
12. The application for judicial review filed 20 September 2018 is dismissed.

1. At the conclusion of the Minister's submission, the solicitor for the Minister informed the Court that if the application for judicial review was dismissed, the Minister sought costs fixed in the amount of $4,500.00. That is less than the scale amount for costs and disbursements for a proceeding concluded at a final hearing of a migration proceeding as set out in Div 1, Part 2 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The sum of $4,500.00 is fair and reasonable in this case.

1. The application for judicial review filed 20 September 2018 be dismissed.
2. The applicant pay the first respondent's costs and disbursements of and incidental to the proceeding fixed in the sum of $4,500.00.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.