GHM18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1666

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

1. Before the Court is an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 12 November 2018. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa).
2. The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. For the following reasons, the application is dismissed.

1. The background and procedural history to this proceeding was helpfully summarised in the Minister's written submissions, which I primarily adopt.
2. The applicant is a male national of Bangladesh.[1] He arrived in Australia as the holder of a Subclass 462 Work and Holiday (Class US) visa on 3 August 2015.[2]

1. In late July 2016, the applicant applied for a protection visa. The applicant's claims to fear harm in Bangladesh were set out in the visa application form and can be summarised as follows:

(a) He fears returning to Bangladesh because of his political opinion.

(b) He was a supporter of the Bangladesh Nationalist Party (BNP) and a member of the Bangladesh Jatiotabadi Chatra Dal (JCD) association during his time at college and university. His family members were also supporters of the BNP.[3]

(c) He was actively involved in politics between 2013 and 2015.[4] He attended political meetings and demonstrations, as a result of which he and others faced intimidation and harassment from the Awami League (AL) and the authorities, including the police and the Rapid Action Battalion. However, he did not move, or seek to move, to another part of Bangladesh because he did not face any 'personalised attacks'.[5]

(d) He was also involved with BNP-related political activities in Australia, and feared he would face serious harm if he returned to Bangladesh due to his political opinion and activities.[6]

(e) He could not get protection from the police because the police passively or actively support AL supporters to attack the BNP supporters.[7]

(f) He would face harm even if he moved to other parts of Bangladesh because he will continue to express his political opinion in support of the BNP.[8]

1. On 24 October 2016, the applicant attended an interview with the delegate.[9] On 4 November 2016, the delegate refused to grant the applicant a protection visa.[10] The delegate accepted the applicant was a member of the JCD during his time at college, was a supporter of the BNP in Bangladesh and had attended BNP Australia Association meetings in Australia. However, the delegate was not satisfied that that the applicant's support of the BNP would cause him to have a profile in Bangladesh or that he would face harm for any reason if he returned to Bangladesh.[11] On that basis, the delegate concluded the applicant did not face a real chance of serious harm or real risk of significant harm should he return to Bangladesh.[12]

1. The applicant attended Tribunal hearings on 5 September 2018 (first Tribunal hearing), and 7 November 2018 (second Tribunal hearing).[13] The applicant's migration agent was present at both hearings. Communication between the applicant and the Tribunal was assisted by way of an interpreter in the Bengali and English languages certified by the National Accreditation Authority for Translators and Interpreters.

First Tribunal hearing held on 5 September 2018

1. Prior to the first Tribunal hearing held on 5 September 2018, the applicant's migration agent provided the following material to the Tribunal:[14]

(a) two letters and English translations of same;

(b) two photographs;

(c) a statutory declaration made by the applicant on 30 August 2018; and

(d) a submission prepared by the applicant's migration agent dated 30 August 2018.

1. The statutory declaration set out further details regarding the applicant's claims, including that:

(a) he began supporting the BNP and became involved with the JCD in 2005;

(b) he actively supported the election campaign for the BNP during the 2008 election; and

(c) he feared he would be perceived as an enemy of the AL and a traitor of the Bangladeshi government.

1. Following the first Tribunal hearing, the applicant's migration agent provided a further statutory declaration made on 19 September 2018 which addressed concerns raised at the first Tribunal hearing,[15] together with a letter from the BNP Australia dated 13 September 2018 which confirmed the applicant's membership.[16]

Second Tribunal hearing held on 7 November 2018

1. On 8 October 2018, the Tribunal invited the applicant to attend another hearing on 7 November 2018. At the second Tribunal hearing, the Tribunal further explored the applicant's claims, specifically those relating to the authorities targeting him after his departure from Bangladesh to Australia. The Tribunal invited the applicant to expand upon these claims. In response, the applicant stated that police had sought him at his family residence shortly after his departure in or around February 2016. He further claimed that subsequent to the first hearing, police visited the family home on 21 and 23 October 2018, purportedly in relation to the family's alleged involvement with the BNP.[17]

1. The Tribunal accepted, in broad terms, that the applicant and his family were supporters of the BNP, and that the applicant had engaged, to some extent, with the student wing of the BNP during his studies in his home region between 2005 and 2009. [18]
2. However, the Tribunal identified a series of credibility concerns which, when considered cumulatively, led it to conclude that the applicant had overstated both the extent of his and his family's political involvement and the adverse consequences said to have arisen from that involvement.[19]
3. The Tribunal's credibility concerns were summarised as follows:

(a) inconsistencies and omissions in the applicant's claims regarding alleged targeting by Bangladeshi authorities due to his BNP involvement;

(b) unexplained delays in lodging the protection visa application;

(c) inconsistencies in the applicant's account of political activity while residing in Dhaka from 2009;

(d) contradictions in the applicant's evidence concerning the nature and extent of his political engagement during that period;

(e) the introduction of new claims at a late stage in the proceedings;

(f) aspects of the applicant's personal profile which, in the Tribunal's view, were inconsistent with that of an individual targeted by authorities; and

(g) discrepancies between the applicant's oral evidence and documentary materials purporting to demonstrate BNP involvement in Australia, which the Tribunal considered to be overstated.

1. In light of the above, the Tribunal found that the applicant had likely exaggerated the extent of his and his family's political activities and the consequences said to have flowed from them.
2. The Tribunal was not satisfied that:[20]

(a) the applicant or his family had engaged in political activity to such an extent that the applicant was known to authorities, including police, as a significant BNP supporter, although it accepted that the applicant had been involved in the BNP in his home region prior to relocating to Dhaka in 2009;

(b) the applicant had participated in BNP activities in Dhaka, including protests or demonstrations, either prior to or following the 2014 election;

(c) the applicant's claims that AL supporters or state authorities had visited or threatened his family home in 2015 or 2016 were credible; and

(d) the applicant would resume political activity upon return to Bangladesh, or that his past profile would give rise to a real chance of serious or significant harm.

1. Conversely, the Tribunal accepted that:[21]

(a) the applicant had engaged in some BNP-related activity in Australia, but found that the extent of this involvement had been exaggerated in supporting statements; and

(b) the applicant would likely continue to support the BNP upon return to Bangladesh, including by voting for the party.

1. Having regard to the findings above, The Tribunal was not satisfied the applicant would engage in political activity at a level that would expose him to a real chance of harm, particularly in light of his limited involvement in Australia and the absence of sustained organisational activity since 2009. On that basis, the Tribunal was not satisfied that the applicant met the criteria for refugee status under s 36(2)(a) of the Act, nor the complementary protection criterion under s 36(2)(aa) of the Act.[22]

1. Pursuant to the applicant's amended application for review, filed on 16 May 2019, the matter now proceeds on the basis of the following nine grounds (reproduced without alteration):

1. The Administrative Appeal Tribunal (The Tribunal) made a jurisdictional error in that the applicant was denied procedural fairness and denied natural justice.

2. The tribunal in its decision made and signed on 12 November 2018 relied upon country information and inconsistencies in the appellant's claims set out in the protection visa application and the claims made before the Tribunal as part of the reason for affirming the decision under review. It failed to put those inconsistencies in writing to the appellant for comment. Please refer to NAZY v MIMIA [2005] FCA 744 (23 June 2005) and MIMIA v AL Shammy [2001] FCA 919; (2001) 110 FCR 27 (24 July 2001).

3. The tribunal did not provide the applicant with particulars of information whatever they obtained, if they, through the DFAT of Australian High Commission in Dhaka, Bangladesh. The applicant was not given an opportunity to comment on any adverse information available to the tribunal before the hearing.

4. The applicant is the appellant of an application for review a decision of the Tribunal (second respondent), which has affirmed the primary decision 12 November 2018. A legal issue which is 'Internal relocation' was not properly raised by the tribunal, to comment on, during the review process and no adverse material were put to the applicant that were taken into consideration while the second respondent made his decision.

5. The tribunal has briefly described the definition of the refugee defined by the UN Convention and the definition of Complementary Protection visa (ss36(2A) of Migration Act 1958) that the Tribunal has assessed and reviewed the primary decision. The Tribunal, at any stage, did not confirm with the applicant whether he understood that crucial issues at all. Such failure amounted to a denial of procedural fairness and natural justice.

6. A further possible ground relates to the non-compliance by the Tribunal with s42 of the Migration Act 1958 in relation to that extract from the primary decision on which it relied. There is a reasonable argument that provided under s 422, there was a failure to comply with s424A and s424(AA) in relation to the decision of the Tribunal. The tribunal was quite influenced and biased by the primary decision given by the delegate.

7. Post hearing the tribunal did not put any adverse issues, to the applicant, to make any comments, in writing, which were the reason, or part of the reason, for deciding that the applicant was not entitled to a protection visa.

8. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against applicant's case in the final outcome. The Tribunal used all the information for a matter of reasoning and evaluation of the applicant's case for the protection visa. The tribunal 'misjudged' the claim and did not have a fresh look on to the claim.

9. In section "Analysis and Assessment" of the Tribunal's decision it is clearly evident that the tribunal was rather interested to discredit the applicant's claim than to have a proper and fair look into the reason of his 'well founded fear'. The tribunal was desperate to damage the applicant's credibility by unreasonably pursuing him on the aforementioned issue which was one of the information and or part of the information for which the Tribunal affirmed the primary decision.

1. A further affidavit sworn by the applicant on 16 May 2019 was filed that same day. By this affidavit, the applicant repeats various complaints raised by his grounds. In particular, the applicant broadly asserts the Tribunal demonstrated bias in its decision-making and, as a consequence, denied him procedural fairness and natural justice. I consider this assertion to constitute a further ground of review and will address it accordingly.

1. In this judicial review proceeding, the Court's task is to determine whether the Tribunal's decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s 474 of the Act; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.
2. The Court has also scrutinised the application, the materials before the Tribunal and the Tribunal's decision to identify any jurisdictional error, noting the Court's obligations towards litigants in person as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58]- [77], [100] and [112]-[113]. At hearing before me, the applicant was asked to explain the basis of each of his grounds, especially where they were unparticularised, and to indicate whether there was anything the Tribunal had done or not done throughout the review application process, including at the Tribunal hearing, which he considered unfair or unreasonable. The applicant stated he could not elaborate further in relation to any of the grounds, and did not avail himself of the opportunity to provide oral submissions.
3. I now turn to consider each of the grounds raised by the applicant.

Grounds 1 and 5 - denial of procedural fairness and natural justice

1. At the core of these two grounds is an allegation of a denial of procedural fairness and natural justice.
2. In relation to ground 1, Counsel for the Minister, Ms Maddocks, argues this ground is a bare assertion. At hearing before me, the applicant was invited to particularise this ground by way of, among other things, drawing my attention to anything in the review process or in the Tribunal's reasons which he considered to be unfair. By way of reply, the applicant simply stated he did not wish to elaborate on the ground and had nothing further to add. It has been held that lack of particularity may be a 'sufficient basis' to dismiss a ground: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]. In my view, the distinct absence of particulars in support of this ground is of concern. In the absence of any details or specific examples the applicant can point to, the Minister contends, and I agree, this ground should fail. There is nothing in the material before the Court which discloses any particular instance where the Tribunal has denied the applicant procedural fairness or natural justice. Indeed, the Minister highlights instances where procedural fairness was afforded to the applicant, including two invitations to attend hearings before the Tribunal and the Tribunal raising various concerns with the applicant at hearing. On that basis, jurisdictional error does not arise in relation to ground 1.
3. In relation to ground 5, the applicant asserts he was denied procedural fairness and natural justice because the Tribunal did not confirm if he understood the definitions of a refugee under the Refugees Convention and 'complementary protection' under s 36(2A) of the Act when reviewing the primary decision. Again, the applicant did not particularise this ground at hearing before me. The Minister argues the applicant was adequately informed of the relevant visa criteria under review, having received notification of the delegate's decision. This is particularly in circumstances where the applicant was represented by a migration agent throughout the review process. I agree with the Minister and find that no jurisdictional error arises in this regard. Accordingly, ground 5 must also fail.

Grounds 2, 3, 4, 6 and 7 - failure to discharge procedural fairness obligations pursuant to s 424A and s 424AA

1. Each of these five grounds advance claims the Tribunal failed to put certain information to the applicant pursuant to s 424A or s 424AA of the Act.
2. The Minister contends that no such failure arises because there was no adverse information that needed to be put to the applicant pursuant to those provisions. In that regard, the Minister relies upon SZBYR v Minister for Immigration and Multicultural Affairs (2007) 81 ALJR 1190; [2007] HCA 26 (SZBYR) at [18] which provides:

Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information"

"does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

1. The Minister submits the Tribunal was not obliged to provide a running commentary of its concerns to the applicant, particularly regarding inconsistencies or the absence of evidence. Again, there is nothing in the material before the Court which leads me to conclude that the Tribunal was required to put adverse information to the applicant for comment in this case. For example, the Tribunal was not required to put general country information to the applicant: s 424A(3)(a). Furthermore, as stated in SZBYR at [18], the Tribunal was not required to put to the applicant the inconsistencies in his evidence.
2. Specifically in relation to ground 2, the cases of NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744; (2005) 87 ALD 357; FCA 74 and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; [2001] FCA 919 do not assist the applicant as they concern the operation of s 424A(3)(b) of the Act and predate SZBYR.
3. Specifically in relation to ground 3, the Tribunal was not obliged to regard general country information in a manner that warranted its disclosure to the applicant for comment pursuant to ss 424A or 424AA. Nevertheless, it is apparent from the Tribunal's reasons at [22] that it discussed aspects of the DFAT Country Report - Bangladesh issued on 2 February 2018 (DFAT Report) with the applicant at hearing. A copy of the DFAT Report was filed by way of annexure to the Affidavit of Benjamin Peter James Wilson sworn on 13 May 2025. I infer that the Tribunal's reference to its discussion of aspects of the DFAT Report at hearing with the applicant is indicative of the Tribunal's cognisance of, and adherence to, its obligation under s 425 of the Act.
4. Specifically, in relation to ground 4, I agree with the Minister that this ground is misconceived. The Tribunal's decision did not turn on the issue of internal relocation within Bangladesh. On that basis, there was no requirement for that issue to be raised with the applicant nor addressed in its reasons. Put simply, the issue was not dispositive. Instead, the Tribunal's decision turned on matters of credibility which gave rise to its rejection of core elements of the applicant's claim for protection. Having rejected his claim to fear harm in his home area, any consideration of the matter of internal relocation was otiose.
5. Specifically in relation to ground 6, I agree with the Minister that the applicant's complaint fails at a factual level. In relation to the issue of delay in lodging his protection visa application, the Tribunal did not produce an extract from the delegate's decision in its reasons on this point. Instead, it relied upon information in the protection visa application detailing the applicant's migration history in order to ascertain that period of delay. On that basis, the procedural fairness obligations s 424A or s 424AA were not enlivened. Furthermore, the Tribunal's findings in relation to the delay at [52]-[53] of its reasons indicate that the credibility concern arose from the applicant's failure to seek protection at an earlier juncture because, on the applicant's own oral evidence at hearing, the Bangladeshi 'authorities were looking for him'. In that sense, there was no procedural fairness obligation pursuant to s 424A and s 424AA to raise the applicant's own evidence with him for further comment. Finally, while the Tribunal invoked s 424AA for the purpose of putting information to the applicant about his new claim of political activity in student organisations, it was not required to do so as this was not information for the purposes of s 424A(1). No error arises from the Tribunal's conduct in this regard: see Minister for Immigration and Border Protection v SZTJF (2015) 149 ALD 552; [2015] FCA 1052 at [31]- [32].
6. Specifically in relation to ground 7, there is nothing in the material before the Court which indicates the Tribunal being required to put information to the applicant pursuant to s 424A following either of the hearings. Again, in the absence of particulars this ground must fail.

1. By ground 6, the applicant further contends the Tribunal was 'quite influenced and biased by the primary decision given delegate'. The applicant elected not to particularise this ground when given the opportunity to do so at hearing. The Minister submits establishing actual bias needs to be clearly made or proven: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng). The Minister further contends that the evidentiary record does not reveal actual or apprehended bias.
2. There is nothing in the material before this Court indicative of the Tribunal having engaged in a manner that was not free from bias or apprehended bias. The Tribunal was entitled to be critical of the applicant's claims and there is nothing in its engagement with the material before it which suggests that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, any proper evaluation of those materials: see Jia Legeng. An open mind does not imply an empty one, and the Tribunal's methodical engagement with the material indicates no actual bias. The Minister submits, and I accept, there is no evidence the Tribunal held a pre-existing view so narrow that it could not properly evaluate the case. I am not satisfied actual bias has been established on the facts of this case.
3. Turning to the claim of apprehended bias, it is apposite at this juncture to set out the applicable test for establishing apprehended bias in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6]:

...a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

1. The test is an objective one of possibility, not probability. The fact-finding task performed by a Tribunal in protection visa matters may involve instances where robust challenges towards an applicant's credibility, especially in a hearing context, may lead an applicant to perceive, whether accurately or not, that the Tribunal was not open to persuasion. However, the material before the Court does not disclose any evidence of the Tribunal having not brought an impartial mind to its task so as to establish a reasonable apprehension of bias on its part. In the absence of any particulars articulating the nature of bias alleged or where the Tribunal did not bring an impartial mind to the decision-making task, I find that ground 6 must fail.
2. By way of ground 9, the applicant contends in the 'Analysis and Assessment' section of its decision, the Tribunal was 'interested to discredit' the applicant than fairly evaluate his claim of a well-founded fear. The applicant further alleges the Tribunal was 'desperate to damage' his credibility 'by unreasonably pursuing him on the aforementioned issue'. The difficulty with this contention is that there is no section in the Tribunal's reasons entitled 'Analysis and Assessment' and the applicant chose to not particularise this ground at hearing before me. It is therefore difficult to discern the precise nature of the complaint brought by the applicant in connection with the Tribunal's credibility assessment. Having reviewed the reasons as a whole, there is nothing which reveals the Tribunal having taken an inappropriate stance towards the applicant in its credibility assessment. The Tribunal's seven key credibility findings were rational and open to it on the available material. There is nothing in the reasons which suggests a 'desperate' motivation on the Tribunal's part to 'discredit the applicant' and, in the absence of transcript of the applicant's two hearings before the Tribunal indicating otherwise, I find that the allegation of bias, including apprehended bias, has not been made out. Accordingly, ground 9 must also fail.

Ground 8 - allegation of improper use of country information and failure to conduct a review de novo

1. By ground 8, when read at its highest and in the absence of particulars or submissions, the applicant appears to take issue with the Tribunal's use of country information and further asserts the Tribunal misjudged the applicant's claims for protection and thereby failed to take a 'fresh and independent view' of the claim.
2. The Minister submits, and I agree, the country information to which the Tribunal has regard and the weight to be attributed to such information is a factual matter for the Tribunal to determine: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]. I find that it was open to the Tribunal to make its findings based on the country information available to it. Therefore, this aspect of the ground must fail. Furthermore, there is nothing before me which suggests the Tribunal misapprehended, misunderstood or otherwise 'misjudged' the applicant's claim for protection. The Tribunal's reasons clearly detail the Tribunal's identification of and engagement with the applicant's claim for protection. It follows that the applicant's complaint that the Tribunal failed to take a fresh and independent view of his claim, or otherwise conduct a review de novo, has not been made out. Accordingly, this aspect of the ground must also fail. It follows that jurisdictional error does not arise.

Additional ground raised in the applicant's Affidavit sworn on 16 May 2019

1. By way of affidavit sworn on 16 May 2019, the applicant generally alleged the Tribunal breached procedural fairness and natural justice to which he was entitled. The applicant also reiterated his claim the Tribunal was biased in reaching its decision.
2. At hearing, Ms Maddocks acknowledged that the first aspect of this complaint closely resembles the allegations raised in ground 1. She submitted that it similarly amounts to a bare assertion and that without specific details or particulars, it is unclear how the applicant was denied procedural fairness. There is force in that submission.
3. The Minister submits, and I accept, the Tribunal acted appropriately, having invited the applicant to attend two hearings regarding the decision under review. During the hearings, the Tribunal put various submissions to the applicant, and there is no indication that its obligations under s 424A were not met.
4. The second aspect of this complaint mirrors the bias concerns raised in grounds six and nine. There is no evidence to suggest the Tribunal acted with bias or unfairly. The Minister submits, and I agree, that the allegations of bias have neither been clearly articulated nor substantiated. Further, the material before the Court does not disclose any evidence of the Tribunal having not brought an impartial mind to its task so as to establish a reasonable apprehension of bias on its part. Again, in the absence of any particulars articulating the nature of bias alleged, and based upon my review of the evidentiary material, this complaint does not disclose jurisdictional error on the part of the Tribunal.

Potential issues of concern identified by the Court

1. Cognisant of the Court's duty to assist unrepresented litigants, I drew the parties' attention to two potential issues in the Tribunal's decision that warranted some further consideration. The first issue related to whether the Tribunal had possibly misconstrued the degree of violence surrounding the Bangladeshi national elections in January 2014, as indicated in the DFAT Report, and if so, whether that infected the reasoning underpinning any of the Tribunal's credibility findings. The second issue related to whether the Tribunal's adverse credibility finding arising out of the applicant's delay had been properly formed and was not illogical or irrational taking into account the applicant's evidence and explanation for that delay.
2. Ms Maddocks properly acknowledged these two potential issues and requested additional time to address them by way of written submissions. I so ordered the filing and service of supplementary written submissions, first by the Minister followed by the applicant two weeks later. While the Minister filed fulsome submissions, the applicant did not avail himself of the opportunity. I now to turn to examine each of these potential issues.

The Tribunal's misstatement of an aspect of country information

1. At [22] of the Tribunal decision, the Tribunal set out extracts of the DFAT Report. Those extracts replicated paragraphs 3.59 - 3.62 of that report and are set out below (emphasis added):

Politically Motivated Violence (PMV)

3.59 Bangladesh is prone to high levels of politically motivated violence (PMV). PMV manifests regularly in the form of violent clashes between supporters of different factions of the same party (intra-party violence), supporters of rival parties (inter-party violence), and between party supporters and law enforcement agencies. Fatalities and serious injuries resulting from these clashes are common. PMV tends to peak during periods of heightened political unrest, including during elections, strikes, and blockades. It tends to be most prevalent outside Dhaka, particularly in northwest and southeast Bangladesh. According to Ain o Salish Kendra (ASK- a local NGO), 177 people died and more than 11,462 people were injured in 907 separate incidents of PMV in 2016, while 52 people died and 4816 people were injured in 364 incidents of PMV in 2017. In addition to those killed and injured in inter- and intra-party violence, these figures include those killed and injured in election-related violence, strikes, blockades, and clashes with law enforcement agencies.

3.60 The January 2014 national elections were the most violent in Bangladesh's history, with months of PMV (including all of the forms listed above) leaving hundreds dead and thousands injured across the country. The violence resurfaced in January 2015 after the government decided to confine BNP leader Khaleda Zia to her party office in Dhaka on the anniversary of the 2014 polls. Local government and council elections in April 2015, December 2015, and March 2016 were also marred by violence. DFAT assesses that violence is also highly likely to accompany the next national elections in late 2018 or early 2019.

3.61 In recent years, the frequency and level of intra-party violence has far outweighed that of inter-party violence, particularly between competing AL factions. In 2015, ASK documented 226 instances of AL intra-party violence (resulting in 33 deaths) and nine instances of intra-party violence involving all other parties (no deaths), as opposed to 30 instances in total of inter-party violence (25 of which were between the AL and BNP) resulting in seven deaths. In 2016, ASK documented 88 instances of AL intra-party violence (resulting in 17 deaths) and 44 instances of intra-party violence for all other parties (resulting in five deaths), compared with 18 instances of inter-party violence (13 of which were between the AL and BNP), resulting in four deaths. Similarly, in 2017 ASK documented 150 instances of AL intra-party violence (resulting in 29 deaths) and 92 instances of intra-party violence for all other parties (resulting in nine deaths), compared with 29 instances of inter-party violence (resulting in 11 deaths).

3.62 DFAT understands that intra-party violence between AL factions has been the most common form of PMV largely due to the party's complete control over state institutions in recent times. Competition between rival factions and candidates (including so-called 'rebels', who have contested local elections as independents) for lucrative contracts, tenders and appointments to senior party positions, has superseded ideological differences. This trend may shift in the lead-up to the next national elections should the BNP confirm its participation.

1. However, at [50] and [55] of its decision, the Tribunal erroneously states the DFAT Report provides that 'hundreds of thousands' were killed and injured in the lead up to the Bangladeshi national elections in January 2014. That report makes clear that only hundreds were killed and thousands were injured rather than hundreds of thousands were collectively injured and killed. That said, the Tribunal's reasons make clear that the Tribunal understood that these national elections had been the 'most violent in Bangladeshi history'.
2. The Minister accepts the Tribunal had misstated the information contained within the DFAT Report at [50] and [55] of its reasons. However, it was further submitted that whether I drew an inference that the Tribunal's references to 'hundreds of thousands' of deaths and injuries in the lead up to the January 2014 elections at [50] and [55] are typographical errors, loose language or a misunderstanding on part of the Tribunal as to the actual number of people that were killed and injured, the Tribunal's findings that 'the applicant did not provide an account of political involvement and activity in the lead up to the January 2014 elections that appeared consistent with independent information'[23] and that the applicant was 'underplaying ... problems encountered in political activity during this period'[24] remained open to it. That is, the actual number of people killed and injured was immaterial (as was the Tribunal's misstatement as such), and it was the inconsistency and underplaying of the existence and trend in situation in the lead up to the January 2014 elections that was central to the reasoning of the Tribunal in this regard.
3. Having read the Tribunal's reasons as a whole, I am of the view that the Tribunal's misstatement, while unfortunate, does not give rise to an error of a type which infects the reasoning underpinning its adverse credibility findings. The misstatement appears in the context of the Tribunal's decision in two instances where adverse credibility findings are reached; the first relates to the delay in the lodgment of the protection visa application (between [46] and [43] of the reasons with the error at [50]), and the second relates to the Tribunal's doubts about the applicant's claimed political activity in Bangladesh in the lead-up to the 2014 national elections (between [54] and [55] of the reasons with the error at [55]). For the reasons that follow, the misstatement does not materially bear upon the reasoning underpinning these two adverse credibility findings.
4. In relation to the Tribunal's concern with the applicant's delay in the lodgment of his protection visa application, the Tribunal's misstatement is subsumed in a broader more general finding about the 'tumultuous nature of politics in Bangladesh' in the years leading up to the 2014 national election and into 2015. That broader characterisation of Bangladeshi politics accords with the country information before the Tribunal, including the DFAT Report, despite the misstatement about the number of persons injured and killed in the lead up to the 2014 national elections. In any case, and perhaps most importantly, the adverse credibility finding did not rely upon the country information but stemmed from the Tribunal's inability to accept why the applicant had not applied for protection at an earlier juncture given his claims that 'the authorities were looking for him' and the situation in Bangladesh was 'significantly worsening' following the 2014 national elections. Accordingly, the Tribunal reasons are rendered neither illogical nor irrational as a result of the misstatement and thereby do not disclose error.
5. In relation to the Tribunal's concern with the applicant's evidence about the nature and scope of his political activities in Bangladesh in the lead-up to the 2014 national elections, I do not accept that the adverse credibility finding stemmed from any unfavourable impression formed as a result of the applicant's failure to persuade the Tribunal of a sufficient degree of knowledge of the nature and extent of politically motivated violence during that period. Rather, the Tribunal's concern arose from the applicant's own evidence, including his statement at hearing that he had not encountered any significant difficulty in the lead-up to those elections. In the Tribunal's view, that evidence gave rise to doubt about the nature and scope of his claimed political involvement prior to leaving Bangladesh.
6. While I acknowledge the Tribunal's misstatement concerning the number of persons killed and injured in the lead-up to the national elections in 2014 might suggest a failure to comprehend the scale of politically motivated violence in Bangladesh at that time, it is nevertheless clear from its reasons that the Tribunal properly understood the January 2014 national elections to have been the most violent in Bangladesh's history. On that basis, it was open to the Tribunal, on the material before it, to reasonably form the view that the applicant's account of political activity - limited to 'issues such as police stopping protesters and attacks with batons', which he regarded as 'not overly problematic' - did not accord with the available country information.
7. It was that discordance, rather than any misunderstanding of casualty figures, which formed the basis of the credibility concern identified at [54]-[55] of the Tribunal's reasons. In my view, it was open to the Tribunal to rely on that inconsistency in reaching an adverse credibility finding. The Tribunal's misstatement about casualty figures was immaterial to the fact-finding approach it adopted. Accordingly, no jurisdictional error is disclosed in this aspect of the Tribunal's reasoning.

The Tribunal's adverse credibility finding in relation to the delay in protection visa application lodgment

1. The Minister submits that the Tribunal's reasons at [46]-[53] are 'not a model of clarity'.[25] Nevertheless, the Minister contends that no jurisdictional error arises from the Tribunal's findings in that regard. Having considered the Tribunal's reasons as a whole, and without an eye keenly attuned to the perception of error, it was open to the Tribunal to find the applicant's delay in applying for a protection visa, coupled with his arrival in Australia with an original intention to return to Bangladesh, adverse to his credibility. Specifically, the Tribunal found this conduct inconsistent with the applicant's claim that the Bangladeshi authorities were actively seeking him in 2015 while he remained in Bangladesh. That is a logical and intelligible basis upon which to rest an adverse credibility finding. It cannot be said that the Tribunal's decision was affected by extreme illogicality or irrationality: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30(5)]; see also CJC16 v Minister for Immigration & Anor [2020] FCCA 325 at [89]- [91] per Judge Kelly. Accordingly, no jurisdictional error is disclosed in this aspect of the Tribunal's reasoning.
2. Furthermore, the Minister submits, and I agree, the Tribunal did not treat the existence of the delay as the end of its enquiry. Rather, it went on to consider the genuineness of the explanation for the delay put forward by the applicant: Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 at [10] per Wilcox, Einfeld and Tamberlin JJ. The Tribunal was not satisfied with the applicant's explanation as to why he had not applied for protection earlier, particularly in light of his claim that the authorities were already looking for him prior to his departure from Bangladesh in 2015. The Tribunal did not accept that the applicant's belief that the situation in Bangladesh might improve after his departure adequately explained the delay. That conclusion was open to the Tribunal on the evidence and country information before it, and for the reasons it gave. No jurisdictional error is disclosed in this respect.

1. For the above reasons, the application before this Court is dismissed.
2. Finally, as a consequence of:

(a) changes to Ministerial portfolio arrangements, the name of the first respondent is to be amended to 'Minister for Immigration and Citizenship'; and

(b) the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to 'Administrative Review Tribunal'.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[25] Minister's submissions filed 14 May 2025 at [22].