FSK18 v Minister for Immigration and Citizenship [2026] FedCFamC2G 291

1. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (protection visa).
2. For the following reasons, the application before the Court must be dismissed.

1. The applicant is a citizen of Bangladesh. He applied for a protection visa on 20 April 2017.
2. On 10 September 2018, the Delegate refused the application. The Delegate's decision was then referred to the IAA for review.
3. On 15 October 2018, the IAA affirmed the Delegate's decision.

(a) the applicant had limited primary education (at [8]);

(b) the applicant attended processions that were general in nature, such as for Bangladesh Independence Day (at [10]);

(c) the applicant passively supported the Bangladesh Nationalist Party (BNP) whilst in Bangladesh on "a very minor level" (at [10]);

(d) on occasion, the applicant's work may have been interrupted by political unrest or hartals (at [18]);

(e) the Awami League may have come on occasion to the garment factory where the applicant worked, forcing workers to go to meetings and processions and threatening them by shooting a gun into the air (at [19]);

(f) the applicant attended two meetings whilst residing in Sydney, with the friends he met at the meetings being BNP supporters (at [23]);

(g) the applicant favoured the BNP over the Awami League and, as such, could be described as a low-level BNP supporter (at [23]);

(h) politically motivated violence remained a problem in Bangladesh (at [27]); and

(i) the applicant departed Bangladesh unlawfully without a passport (at [28]).

(a) the applicant attended regular BNP party meetings (at [10]);

(b) the applicant was an active BNP supporter (at [10]);

(c) the applicant left his job in the garment factory to drive taxis because the Awami League knew he was a BNP supporter or because of any fear of harm from the Awami League (at [18]);

(d) Awami League disruptions in the garment factory happened as frequently as the applicant had claimed (at [19]);

(e) the applicant was individually targeted on one occasion (at [19]);

(f) the applicant misunderstood questions regarding whether he could live anywhere besides his hometown (at [20]);

(g) the applicant's hometown was the only place of employment for garment workers (at [20]);

(h) the applicant was of adverse interest to the Awami League when he departed Bangladesh (at [21]);

(i) the applicant's attendance at two meetings made him an active BNP supporter (at [23]);

(j) the applicant would become politically active on his return to Bangladesh, or that his involvement would extend beyond merely supporting the BNP (at [26]);

(k) the applicant faced a real chance of harm in Bangladesh from the Awami League (at [27]);

(l) the applicant would be forced to join the Awami League or anyone else (at [27]);

(m) the applicant faced a real chance of harm in Bangladesh on the basis of having departed illegally (at [29]);

(n) the applicant had any profile of adverse interest to any Awami League cadres, supporters or party members when he left Bangladesh (at [30]);

(o) the applicant would be viewed as having any such profile upon return (at [30]); or

(p) the applicant faced a real chance of any harm in Bangladesh as a returning failed asylum seeker who departed unlawfully (at [30]).

1. The IAA considered that the applicant departed Bangladesh in order to seek employment opportunities overseas (at [21]).
2. Having regard to the above, the IAA found that the applicant was unable to meet the criteria for the grant of the protection visa (at [31]-[36]). Accordingly, the IAA affirmed the Delegate's decision.

1. The applicant sought judicial review of the IAA's decision through an application filed on 30 October 2018. The matter remained in the central migration docket for some years before being allocated to my docket more recently and listed for hearing. The following grounds of review were stated in the application:

The IAA Decision or conclusion is unreasonable.

Particulars

The Department accepted the applicant as an active BNP supporter. The IAA noted that he is not an active supporter. However, the IAA failed to provide any evidence to support its conclusion. Therefore, the decision of the IAA, is unreasonable.

The IAA failed to consider relevant consideration.

Particulars

The applicant in his statement noted that he fears harm due to his political opinion against the Awami League. The IAA though assessed the applicant against his fear on the basis of his support to the BNP but failed to consider the claim on the basis of his fear that he has a political opinion against the Awami League.

The IAA failed to assess whether the applicant has a financial capacity to pay fine if he is charged in Bangladesh since he illegally departed Bangladesh.

Particulars

The IAA noted that he would be charged under the Emigration Ordinance Act (1982) (EO Act) and he may be fined $ 70 or may face imprisonment. The IAA failed to consider whether short of detention due to leaving Bangladesh would amount to degrading treatment or whether he has the financial means to pay the fine

Ground 1 - was the IAA's decision legally unreasonable?

1. Ground 1 contended that the IAA's decision was legally unreasonable. This was by reference to the IAA's non-acceptance that the applicant was an active BNP supporter. This was said to be in contrast to what was found by the Delegate. The applicant also objected under this ground to what was said to have been the IAA's failure to provide evidence in support of its conclusion.
2. Grounds such as legal unreasonableness have high thresholds: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [66] per Hayne J, Kiefel J (as her Honour then was) and Bell J, and at [113] per Gageler J (as his Honour was). Those thresholds may be reached where a decision is shown, within context, to be arbitrary, capricious or lacking in common sense: Li at [28] per French CJ. They may be reached where a decision lacks "an evident and intelligible justification": Li at [76] per Hayne, Kiefel and Bell JJ.
3. Without more, legal unreasonableness will not be demonstrated simply because the IAA departs from a conclusion of the Delegate. The IAA was not obliged to reason in the same manner as the Delegate. Although unreasonableness has been found in some, limited, circumstances where this has occurred without further action - such as inviting further information under s 473DC of the Migration Act 1958 (Cth) (Act) - such cases have turned upon their own particular circumstances: see for eg Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 and DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134. There was no general obligation upon the IAA under Part 7AA of the Act to invite further information simply because it proposed to make different findings to the Delegate.
4. It is not apparent how it could be said to be legally unreasonable for the IAA to have made the findings that it did without seeking further information in the present case. The IAA's findings were based upon its interpretation of the evidence before it and it is not apparent what gap or other circumstance in the present matter could be said to have rendered the approach taken by the IAA legally unreasonable.
5. In any event, contrary to what was suggested under the ground, the Delegate had not accepted that the applicant was "an active BNP supporter". Rather, the Delegate had (similarly to the IAA) accepted that the applicant was "a low level supporter of the BNP". The Delegate rejected that the applicant was "an active supporter of the BNP in Australia" (CB 107-108). Whilst the IAA's findings in this regard were not identical to those of the Delegate, nor were they starkly different in the manner suggested.
6. The IAA's findings regarding its non-acceptance of the applicant's involvement in politics were largely expressed in the negative i.e. in terms of the IAA's unwillingness to accept the applicant's claims regarding his political involvement. Such findings did not require positive evidence: see Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21; (2010) 114 ALD 49 at [43]- [45] (Perram J).
7. In any event, I accept the Minister's submission that the IAA's reasoning was open to it based upon the evidence before it. The IAA's non-acceptance that the applicant had the interest or role in politics claimed was based upon limitations that it identified in the applicant's own evidence on the subject. This included the applicant's inability to provide evidence on what was discussed at BNP meetings he claimed to have attended regularly, as well as his lack of knowledge regarding which of his family members supported the BNP and his limited involvement in meetings since travelling to Australia (at [10] and [23]). Such matters were, at least potentially, capable of being logically probative of the question before the IAA. It has not been demonstrated that this reasoning was relevantly closed to the IAA.
8. Having regard to the above, I am not persuaded that ground 1 is able to succeed.

Ground 2 - did the IAA fail to consider a claim that the applicant feared harm on the basis of his political opinion against the Awami League?

1. I accept that the applicant made the claim, in his statement dated 12 June 2018, to hold a political opinion against the Awami League (CB 90).
2. However, I accept the Minister's submission that this claim was considered by the IAA. At [4] of its decision, the IAA recorded the applicant's claim to face harm on the basis of (inter alia) being "opposed to the AL". At [10] and [23], the IAA accepted that the applicant had an opinion favouring the BNP over the Awami League.
3. However, the IAA did not accept that the applicant would face a real chance of relevant harm in result. The IAA did not accept that the applicant was of adverse interest to the Awami League (at [21]). After considering the applicant's level of political interest, activity and profile, together with relevant country information, the IAA was not satisfied that the applicant faced a real chance of harm from the Awami League or anyone else "on the basis of any past or future sympathy or low-level support for the BNP party or for any other reason" (at [27]) (emphasis added). These findings were dispositive of the claim in question.
4. It follows that I am unable to accept that the IAA failed to consider the applicant's claim to face harm on the basis of his political opinion against the Awami League. Ground 2 is therefore unable to succeed.

Ground 3 - did the IAA err by failing to assess whether the applicant would have the financial capacity to pay a fine or the consequences of his detention?

1. Ground 3 contended that the IAA failed to assess whether the applicant had the financial capacity to pay a fine, or whether a short period of detention would amount to degrading treatment, following the applicant being charged in Bangladesh on account of his illegal departure. The particulars appear to demonstrate some misunderstanding of [29] of the IAA's decision, which was as follows:
   1. DFAT reports that the Emigration Ordinance Act (1982) (EO Act) makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the EO Act.19 The EO Act refers to penalties of up to one year imprisonment or a fine of 5000 taka in certain circumstances.20 Information before the delegate indicates this is approximately AU$76. DFAT reports from 2014 and 2016 indicate that DFAT is not aware of any incidence of enforcement of these provisions and there is no indication in the 2018 report that this has changed.21 There is no country information in the review material to support that the Bangladeshi authorities enforce the EO Act against returning Bangladeshi asylum seekers or that they specifically target BNP supporters. I am not satisfied that the applicant faces a real chance of any harm in Bangladesh on the basis of having departed illegally.
2. Contrary to the particulars to the ground, the IAA did not find that the applicant would be charged or fined. Nor did it find that the applicant may face a period of detention (however short). Rather, after considering country information indicating that the laws regarding illegal departure were not enforced (and the absence of country information indicating that BNP supporters or asylum seekers were targeted), the IAA did not accept that the applicant faced a real chance of "any harm" on account of his illegal departure.
3. As the IAA's reasoning appears to have been premised upon the applicant not being charged, detained or required to pay a fine, I am not persuaded that it was necessary for the IAA to have determined the applicant's ability to pay a fine or whether his detention would amount to degrading treatment.
4. It follows that I am not persuaded that ground 3 is able to succeed.

1. For the reasons given above, the application will be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.