CVH17 v Minister for Immigration - Protection Visa Appeal Dismissed

Original Word Document (84.5 KB) Federal Court of Australia

CVH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 318

| Appeal from: | CVH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 769 |
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| File number(s): | NSD 842 of 2022 |
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| Judgment of: | YOUNAN J |
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| Date of judgment: | 26 March 2026 |
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| Catchwords: | MIGRATION – appeal from decision of the Federal Circuit and Family Court of Australia (Division 2) dismissing an application for judicial review – Administrative Appeals Tribunal affirmed decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) (Subclass 866) visa – grounds of appeal without merit – role of humanitarian considerations – appeal dismissed |
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| Legislation: | Migration Act 1958 (Cth) ss 36(2A), 424A, 425(1) |
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| Cases cited: | CVH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 769

SYBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 44 |
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| Date of hearing: | 19 March 2026 |
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| Counsel for the Appellant: | The appellant appeared in-person, assisted by an interpreter |
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| Counsel for the First Respondent: | A Sharma |
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| Counsel for the Second Respondent: | The second respondent filed a submitting notice, save as to costs |
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| Solicitor for the Respondents: | HWL Ebsworth Lawyers |
ORDERS

| | | NSD 842 of 2022 |
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| BETWEEN: | CVH17

Appellant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | YOUNAN J |
| DATE OF ORDER: | 26 MARCH 2026 |
THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal, as agreed or taxed.

3. The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YOUNAN J:

INTRODUCTION

Notice of appeal

1 By notice of appeal filed on 4 October 2022, the appellant seeks to appeal the decision of Judge Laing of the Federal Circuit and Family Court of Australia (Division 2) on 16 September 2022, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (as it then was): CVH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 769 (primary judgment or PJ). On 6 June 2017, the Tribunal affirmed the decision of a delegate of the first respondent (the Minister) refusing to grant the appellant a Protection (Class XA) (Subclass 866) visa (protection visa) (Tribunal decision).

2 The appellant is a citizen of Bangladesh, and arrived most recently in Australia on 3 November 2014 on a tourist visa. The appellant applied for a protection visa on 28 January 2015, which was refused by a delegate of the Minister on 30 July 2015.

Appearance

3 The appellant is a self-represented litigant. At previous hearings before the Tribunal and primary judge, the appellant had the assistance of an interpreter in the Bengali and English languages. That assistance was provided at the hearing of the appeal on 19 March 2026. However, the appellant was able to make submissions to the Court without interpreting assistance.

FACTUAL BACKGROUND

4 The factual background is conveniently summarised at paragraphs [2]-[7] of the primary judgment and in the Tribunal decision at paragraphs [1]-[4], [7]-[17].

GROUNDS OF APPEAL

5 The grounds of appeal are stated as follows:

Grounds of appeal

(1) The Hon. Federal Circuit Court judge made legal error in dismissing my application for judicial review without consideration.

(2) The Hon. Federal Circuit and Family Court of Australia Judge at paragraph -11: “The Tribunal conclude that there was no real chance of the applicant attracting adverse interest on account of his political activities or opinion” accepting AAT conclusion and made legal error.

(3) The Hon. Federal Circuit and Family Court of Australia Judge at paragraph - 18: “However, that provision did not require the Tribunal to put general country information to the applicant 9s424(3)(a) of the act). Nor did it require the Tribunal to put to the applicant inconsistences in his evidence.” made legal error.

(4) The Hon. Federal Circuit and Family Court of Australia Judge at paragraph - 31: “Crucial issues” regarding refugee criteria and complementary protection ” are not the crucial issues but the relevant country information and material held by the department not discussed and accordingly AAT made legal error.

6 In written submissions filed on 11 March 2026, the appellant also seeks that this Court consider his appeal from a “humane perspective”. The appellant submits that he has recently suffered medical issues in connection with vision in his left eye, and that if his appeal is not successful, he may lose his job and will not be able to get a new job because of his medical issues. This issue was not raised in the notice of appeal.

Ground 1 – Dismissal without consideration

7 The first ground of the notice of the appeal contends that the primary judge dismissed the appellant’s application for judicial review “without consideration” and thereby made a legal error.

8 Neither the notice of appeal, nor the appellant’s written submissions, particularised what the primary judge failed to consider. On that basis alone, it should be rejected.

9 The Minister contends that the primary judge considered, and made findings in respect of, each of the nine grounds of review. That is evidently so.

10 The first ground of appeal is rejected.

Ground 2 – Acceptance of the Tribunal’s conclusion

11 The second ground of the notice of the appeal is referable to paragraph [11] of the primary judgment, which states:

The Tribunal concluded that there was no real chance of the applicant attracting adverse interest on account of his political activities or opinion (at [66]). The Tribunal did not accept that the applicant faced a real chance of being targeted on political grounds and subjected to extortion or similar demands resulting in serious harm (at [67]). Nor did the Tribunal accept the applicant faced a real chance of significant harm for the reasons claimed (at [71]-[72][)].

12 The appellant contends the primary judge accepted the Tribunal’s conclusion(s) and thereby made a legal error. The appellant does not indicate how the Tribunal erred in reaching those conclusions.

13 Furthermore, the appellant does not demonstrate that the primary judge adopted those specific findings, let alone made an error in doing so. Paragraph [11] of the primary judgment is not a finding. It is a summary of the conclusions reached by the Tribunal at paragraphs [66]-[67] and [71]-[72] of its decision. There is no error in that summary, which accurately reflects those findings. The primary judge specifically addressed the grounds of review, none of which takes issue expressly with the findings of the Tribunal recited at paragraph [11] of the primary judgment.

14 In written submissions, the appellant makes claims in respect of the political climate in Bangladesh. Whilst not expressly stated to be in respect of any of the grounds of appeal, the submissions appear directed towards the Tribunal’s conclusion as articulated at paragraph [11] of the primary judgment.

15 The appellant contends, in written submissions, that “[t]hey did not believe I was really in trouble in Bangladesh”. The appellant submits that whilst prior to 5 August 2024, the government of Sheikh Hasina was considered “a very good government”, after 5 August 2024, it became evident “how dangerous the Sheikh Hasina’s [g]overnment was”. In support of this proposition, the appellant provided a screenshot of two video news reports by ABC News, titled “Bangladesh’s ‘Iron Lady’ flees country in helicopter | ABC News”, and “Bangladeshi Prime Minister Sheikh Hasina has resigned and fled country | ABC News”. The appellant further contends that whilst it is “good for [him]” that the Bangladesh Nationalist Party has “[come] to power”, as he claims to be a member of this party, he is “still afraid to go to Bangladesh because if terrors in Bangladesh aimed at someone for a specific reason, they do it anyway”.

16 Even if the Court were to take those submissions at face value, they do not demonstrate that the Tribunal made any error in concluding that the appellant did not face a real chance of significant harm in Bangladesh on account of his political activities or opinion.

17 At the hearing of the appeal, the appellant submitted that the Tribunal considered his matter “in [general]”. The appellant explained that the Tribunal did not consider his personal claims, which he put to the Tribunal. I drew the appellant’s attention to the Tribunal’s finding (at [72]) that the real risks were those faced by the population generally, and not by the appellant personally. The appellant indicated that he disagreed with this conclusion. As I explained to the appellant, disagreement does not amount to error that this Court can correct on appeal.

18 The second ground of appeal is without merit.

Ground 3 – Section 424A of the Migration Act 1958 (Cth)

19 The third ground of appeal takes issue with paragraph [18] of the primary judgment, which states:

However, that provision did not require the Tribunal to put general country information to the applicant (s 424(3)(a) of the Act). Nor did it require the Tribunal to put to the applicant inconsistencies in his evidence: SZBYR & Anor v Minister for Immigration and Citizenship [2007] HCA 26; 96 ALD 1 (SZBYR) at [18].

20 The appellant contends that the primary judge made a “legal error”. The appellant has not identified that error.

21 As submitted by the Minister, paragraph [18] of the primary judgment addresses the appellant’s second ground of review in the primary proceeding. That ground of review was stated by the appellant as follows (PJ [13(2)]):

The tribunal in its decision made and signed on 6 June 2017 relied upon country information and inconsistences in the appellant’s claims set out in the protection visa application and the claims made before the Tribunal as part of the reasons 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) 110 FCR 27 (24 July 2001).

22 The primary judge held that the appellant’s second ground of review appeared to invoke s 424A of the Migration Act (PJ [17]). The primary judge considered whether the Tribunal complied with the requirements of that provision. At the time of the Tribunal decision, s 424A of the Migration Act relevantly provided:

424A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

….

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

23 The primary judge rejected the second ground of review for the following reasons:

(1) Section 424A of the Migration Act did not require the Tribunal to put general country information, or inconsistencies in the appellant’s evidence, to the appellant (PJ [18]).

(2) The Tribunal’s decision did not appear to have turned on inconsistent statements made by the appellant. Instead, the Tribunal’s concern was in relation to the appellant’s credibility, and the “limitations in the detail, context and substantiation” of the appellant’s claims, which were discussed with the appellant at the hearing before the Tribunal (PJ [20]).

(3) At the hearing before the primary judge, the appellant drew the Court’s attention to paragraph [48] of the Tribunal’s decision, which referred to his delay in leaving Bangladesh as conduct appearing “inconsistent with that of a person who is at risk of being prosecuted on trumped-up charges” (PJ [21]). The primary judge held that the Tribunal’s conclusion in this regard was not “information” for the purposes of s 424A of the Migration Act (PJ [21]). Further, for the purposes of s 425 of the Migration Act, the appellant was on notice from the delegate’s decision that his delay in leaving Bangladesh was in issue, and this was discussed with him at the Tribunal hearing (PJ [21]).

24 The primary judge was correct in concluding that the Tribunal was not required to put “general country information” to the appellant in reliance on s 424A(3)(a) of the Migration Act. I take the reference to “general country information” to be information that is not specifically about the appellant.

25 The primary judge was also correct in concluding that the Tribunal was not required to put to the appellant inconsistencies in his evidence, in reliance on SYBYR v Minister for Immigration and Citizenship [2007] HCA 26 at 18. Disbelief as to the appellant’s evidence (viz., that he was at risk of persecution) arising from inconsistencies therein (viz., the delay in leaving Bangladesh) does not constitute “information” within the meaning of s 424A(1)(a) of the Migration Act. The meaning of “information” in the context of s 424A is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistences or the absence of evidence: SYBYR at [18]. It does not denote the Tribunal’s assessment of the evidence.

26 Furthermore, as the primary judge noted (PJ [21]), the Tribunal put this perceived inconsistency to the appellant at the hearing. The Tribunal provided the appellant with an opportunity to respond to this issue. The appellant indicated that he had nothing further to add.

27 This ground of appeal is without merit.

Ground 4 – “Crucial issues”

28 There appear to be two aspects to this ground of appeal. The first is that the primary judge incorrectly identified the “crucial issues” referred to in the appellant’s fifth ground of review in the primary proceeding. The second is that those issues were not discussed (by the Tribunal) with the appellant.

29 The appellant has not provided further particulars of this ground of appeal beyond what is stated in the notice of appeal:

The Hon. Federal Circuit and Family Court of Australia Judge at paragraph - 31: “Crucial issues” regarding refugee criteria and complementary protection” are not the crucial issues but the relevant country information and material held by the department not discussed and accordingly AAT made legal error.

30 Critically, the appellant does not identify what he says are the “crucial issues” that were overlooked.

31 Paragraph [31] of the primary judgment addresses the appellant’s fifth ground of review in the primary proceeding. That paragraph states:

Ground 5 contended that the Tribunal failed to confirm that the applicant understood the “crucial issues”. This appeared to be by reference to the definitions under the Act regarding the refugee criterion and complementary protection.

32 Ground 5 of the appellant’s application for review stated (PJ [13(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. (Please refer to the attached transcript)

33 At the time of the hearing before the Tribunal, s 425(1) of the Migration Act provided that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

34 The primary judge ultimately concluded that no breach of s 425 of the Migration Act occurred in the circumstances, for two reasons (PJ [33]):

(1) The appellant was on notice from the decision of the Minister’s delegate refusing the appellant’s application for a protection visa, that his ability to meet the refugee and complementary protection criteria was in issue (PJ [32]).

(2) In addition, the Tribunal explained the refugee and complementary protection criteria to the appellant at the commencement of the hearing, and the appellant indicated that he had understood (PJ [32]).

35 There is no discernible error in the primary judge’s conclusion. The appellant did not identify any “crucial issues” in the fifth ground of review before the primary judge, beyond the internal reference to the convention definition of refugee and the “definition” of (significant harm for the purposes of) complementary protection under s 36(2A) of the Migration Act. It was a rational inference for the primary judge to construe the reference to “ that crucial issues[sic]” as a reference to the aforementioned issues identified in the ground of review.

36 Moreover, as stated above, the appellant does not in this proceeding identify what he claims to be the “crucial issues”. The reference to “the relevant country information and material held by the department” does not identify those issues. Nor does it permit the Court to assess whether the information in question was discussed with the appellant.

37 To the extent that the appellant relies on material held by the Department, I note that the Tribunal was under no obligation to give to the appellant information that the appellant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department: s 424A(3)(ba) of the Migration Act. The appellant does not identify any such (oral) information.

38 There is no merit in this ground of appeal.

Humanitarian considerations

39 As outlined above, and on a beneficial interpretation, the appellant raised a new ground of appeal in his written submissions. The appellant asks that the Court consider the “application” from a “humane perspective”.

40 In his written submissions, the appellant outlines his work as a chef in Australia, and purported medical issues in relation to his eyesight. The appellant also raised his concern that his employment may cease if he is not successful on this appeal, and he may not be able to find other employment. While not in the form of evidence, the Minister did not take issue with these concerns.

41 While sympathy may be expressed for the appellant’s situation, to the extent that the new ground of appeal goes beyond the identification of error in the primary judge’s decision, it is beyond the remit of this Court on appeal from that decision. The appellant’s concerns in that regard, while no doubt genuinely felt, cannot be a reason to quash the decision, which remedy the appellant seeks.

42 To the extent that the appellant raises a new ground of appeal, I would withhold leave on the basis of its futility. To the extent that it is simply an appeal to the humanity of the Court, it bears reminding that the Court does not have a residual discretion to grant the appellant relief on that basis.

CONCLUSION

43 For the above reasons, all four grounds of appeal are rejected.

44 The appeal should be dismissed. The Court has not been furnished with any reason why the appellant should not pay the costs of the appeal, which the Minister seeks.

| I certify that the preceding forty-four (4 4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Younan. |
Associate:

Dated:    26 March 2026

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