Aam15 v Minister for Immigration

[2017] FCCA 1612

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAM15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1612

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal failed to consider or deal with a claim – whether the Tribunal failed to comply with s.424AA and s.424A – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 424A, 425, 476

Cases cited:
AAM15 & Ors v Minister for Immigration & Anor [2015] FCCA 1225
AAM15 v Minister for Immigration and Border Protection [2015] FCA 804
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156 Mazher v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992
Htun v Minister for Immigration and Multicultural Affairs[2001] HCA 1802 (2001) 194 ALR 244
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46

First Applicant:	AAM15
Second Applicant:	AAN15

Third Applicant:	AAP15
First Respondent:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 439 of 2015

Judgment of: Judge Nicholls

Hearing date: 30 May 2017

Date of Last Submission: 30 May 2017

Delivered at: Sydney

Delivered on: 30 May 2017

REPRESENTATION

Applicants:	First Applicant in person and on behalf of the Second and Third Applicants
Solicitors for the Respondent:	Ms Blake of Clayton Utz

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 24 February 2015 is dismissed.

3. The first and second applicants pay the first respondent’s costs set in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 439 of 2015

AAM15

First Applicant

AAN15

Second Applicant

AAP15

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”) on 24 February 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 27 January 2015 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection (Class XA) visas to the applicants. This application was prepared on behalf of the applicant by a solicitor (Mr M Jones, solicitor, with Parish Patience Immigration Lawyers).

2. The application was the subject of previous judicial review proceedings which became the subject of an appeal to the Federal Court. That is, the application was heard by another judge of this Court, and then on appeal by a justice of the Federal Court who then decided to return the matter back to this Court and, ultimately, for the first time now, it is before me (see AAM15 & Ors v Minister for Immigration & Anor [2015] FCCA 1225 (“AAM15”) and AAM15  - disp2v Minister for Immigration and Border Protection [2015] FCA 804).

3. In evidence before the Court is a bundle of relevant documents, filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”) and the affidavit of Winnie David of Legal Transcripts Pty Ltd, affirmed on 31 March 2015, which annexes a transcript (“T”) of the applicant’s hearing before the Tribunal. 

4. The applicants are husband (the first applicant), wife (the second applicant), and their daughter (the third applicant). The applicants are all citizens of Bangladesh.  They applied for protection visas on 7 August 2013.  The second and third applicants applied as members of the first applicant’s family unit and initially did not submit any of their own claims for protection (CB 1 to CB 80). 

5. The first applicant claimed to fear harm on the basis of his political opinion in that he had been an active supporter of the Bangladesh Nationalist Party (“the BNP”). He claimed to fear harm from members of the opposing Awami League political party (“AL”).

6. Initially, the first applicant left Bangladesh and came to Australia in 1998.  He then returned to Bangladesh in 2008 after a failed attempt at seeking asylum in Australia.  I note that on the first occasion, he provided different personal details in his application to that which he provided on the second occasion.

7. The first applicant claimed to have commenced a business and to have been a substantial “financial contributor” to the BNP in Bangladesh [in Jessore]. He stated that because of his wealth and contribution to the BNP that he feared for himself and his family, and that they would be targeted by the AL.  Subsequently, the first applicant claimed that his son, who had been working as a journalist, was killed in a “pre-planned murder” as a result of reporting on certain political activities (CB 7). 

8. The first applicant also claimed that members of the AL believed him to be a “potential [political] opponent” due to his “popularity working with the people”.  He claimed to be an elected member of a human rights advocacy group, and as mentioned above, a financial contributor to the BNP. He claimed that he began to receive “threatening calls and faced intimidation”.  He said threatening calls were made to him, and involved the abduction of his daughter.  He said it was at that time that he decided to leave Bangladesh and come to Australia. 

9. In his application for a protection visa, the first applicant summarised his claims, essentially, as follows (CB 12):

   “a. because of pursuing justice for the murder of my only son;

   b.  because of active political support to the BNP;

   c. because my political opponents consider me as a potential candidate to contest in the next election due to my popularity with people, my financial contribution and wealth, and my association with national BNP leaders such as [name].

   d. because of my activities with the disadvantaged in helping them to address the human rights abuses and violations they faced and suffered through Jessore human rights body.”

   [Errors in the original.]

10. The first applicant was invited to, and attended, an interview with the Minister’s delegate on 17 March 2014 (CB 196).  Subsequently, by letter dated 20 March 2014, and sent by express post to their authorised representatives, the applicants were notified of the delegate’s decision to refuse the protection visas (CB 197 to CB 214). The delegate found that the first applicant was “not a credible witness” (CB 209.1).  The delegate was not satisfied, amongst other things, that the first applicant was a supporter of the BNP, that he was attacked by supporters of the AL, or that he was a member of a human rights advocacy group as he had claimed. The delegate also found that there was no evidence on which he could conclude that the first applicant’s “son’s murder” had been premediated, or that AL supporters threatened to kill his daughter. 

11. On this basis, the delegate could not be satisfied that the first applicant met either of the relevant criteria for the grant of a protection visa (that is, s.36(2)(a) and s.36(2)(aa) of the Act), and the application for a protection visa was refused. As a consequence, the applications for visas made by the second and third applicants were also refused.

12. The applicants applied for review to the Tribunal on 7 April 2014 (CB 215 to CB 217). This was acknowledged by the Tribunal by letter dated 10 April 2014 and sent to the applicants’ “authorised recipient” (CB 218 to CB 220). The applicants were all invited to attend a hearing before the Tribunal scheduled for 19 November 2014 (CB 223 to CB 224).

13. The applicants were represented before the Tribunal by a firm of solicitors that had registered migration agents in its employ.  It is also the same firm that prepared the application to the Court.  In a “Response to Hearing Invitation” form, sent by the applicants through their representative to the Tribunal, all three applicants indicated they would each take part in the Tribunal hearing (CB 225 to CB 227). This was confirmed in subsequent correspondence and further documents were sent to the Tribunal (CB 228 to CB 238).  The Tribunal’s records indicate that all three applicants attended at the hearing (CB 239). 

14. Following the hearing, the applicants provided further documents to the Tribunal, and relevantly, this correspondence included a written “Statement” from the third applicant, that is, the first and second applicant’s daughter (CB 276 to CB 280).  The Tribunal then sent the applicants a letter on 10 December 2014, sent by email to their authorised representative, inviting their comments or responses to certain information (“the s.424A letter”) (CB 281 to CB 310).

15. The s.424A letter included the particulars of nine pieces of information. The applicants were given the opportunity to comment on or respond to this information. For reasons which will become clear, particulars 7 and 9 are of importance. They are as follows (see CB 284.9 and CB 285.5):

    “7.       At the departmental interview on 17 March 2014 you did not refer to being in hiding in Bangladesh.

    …

    “9.       At the departmental interview on 17 March 2014 you stated that when your daughter came under attack, you decided to leave the country.”

16. The applicants responded to this invitation on 31 December 2014 by providing the Tribunal with a “Statutory Declaration” made by the first applicant, and further submissions regarding what the applicants said was relevant country information. This was sent to the Tribunal by email by their authorised representatives (CB 313 to CB 320). 

17. The Tribunal subsequently affirmed the delegate’s decision. The applicants were notified by letter dated 27 January 2015, sent by email to their authorised representatives on the same date (CB 321 to CB 341).

18. In its decision record, the Tribunal noted that the second and third applicants had not submitted any claims of their own ([4] at CB 325), and that while claims were made on behalf of the third applicant, those were claims initially raised by her father. I will return to that below. Paragraphs 9 (at CB 326 to CB 327) and [10] (at CB 327) of the Tribunal’s decision record, deal with what the Tribunal said occurred at the hearing, and relevant to its s.424A letter:

    “[9] At the end of the hearing the Tribunal stated that it had no specific questions for the wife applicant and the daughter applicant (other than those which had already been put to the wife applicant) who had not made any claims of their own. The applicant stated that he wanted the Tribunal to take evidence from his daughter about the emotional trauma she suffered and her depression. The Tribunal stated that it was willing to call them back for oral evidence on another day or so to allow further time to provide a written statement if they wished to do so. The applicant stated that they would like to provide a written statement. The Tribunal explained this to the wife applicant and daughter applicant who agreed. The Tribunal stated that it would adjourn but was not anticipating a further hearing. The Tribunal asked if there was anything they wanted to say to the Tribunal. The daughter applicant stated that she would provide a written statement and had nothing further to add at the hearing. The wife applicant stated that she just wanted to request the Tribunal to allow them to live in peace. The Tribunal subsequently received a statement from the daughter applicant dated 2 December 2014 to which the Tribunal has had regard and the Tribunal did not find it necessary to call the applicants back for a further hearing.

    [10] Following the hearing on 24 November 2014 the Tribunal sent a letter pursuant to s.424A of the Act the applicants inviting them to comment on, or respond to, certain information. This attached a copy of the DFAT Country Report Bangladesh dated 20 October 2014 which had been discussed at the hearing. The Tribunal became aware that the applicant’s representative did not receive this letter. Therefore a further letter was sent on 10 December 2014. The applicant’s representative requested an extension of time to respond until 2 January 2014 which was granted. On 31 December 2014 the Tribunal received a further statutory declaration from the applicant in response to the s.424A letter. The Tribunal also received further country information in relation to the persecution of political opposition members and supporters in Bangladesh.”

19. The Tribunal had a “number of concerns in relation to the [first] applicant’s evidence and credibility”. The Tribunal considered the claims for protection in this light ([13] at CB 327 to [35] at CB 333).  The Tribunal explained that this included its consideration of the Statutory Declarations and statements provided by the second and third applicants, and although their statements were generally consistent with the first applicant’s claims, they did not overcome the Tribunal’s concerns which were “so numerous and significant” (CB [34] at CB 333).  

20. The Tribunal found that the applicants were not “credible witnesses” ([39] at CB 335). It considered that as the first applicant did not have a high political profile, it did not accept, in the circumstances, that there was a real chance of him being harmed due his political activities or opinion if he were to return to Bangladesh.  The Tribunal did not accept that the first applicant or his family had been targeted for reason of his political activities ([36] at CB 333 to [43] at CB 336 and [51] at CB 338).  The Tribunal also found that there was no evidence to suggest that the first applicant would be harmed due to his involvement with the human rights advocacy group, and rejected his claim to fear harm on that basis ([44] at CB 336). 

21. The Tribunal also found that the first applicant’s oral evidence at the hearing was inconsistent with a Statutory Declaration he had provided regarding the claimed murder of his son.  The first applicant had stated to the Tribunal that he had not filed a complaint to the police in Bangladesh as he had previously claimed. The Tribunal considered this, and in all the circumstances, it was not satisfied that there was a real chance of harm to the first applicant as a result of the claimed murder of his son ([45] at CB 336 to [50] at CB 338). 

22. The Tribunal was not satisfied that the first applicant would be harmed if he were to return to Bangladesh for any of the reasons that he had claimed.  Further, the Tribunal noted that although the second and third applicants had not pressed separate claims of their own, their fear of harm appeared to be as a result of the first applicant’s claimed political activities in Bangladesh. The Tribunal found that since it was not satisfied there was a real chance of harm to the first applicant, there was ([51] at CB 338.3) “…even less chance of the [first] applicant’s family being harmed”. The Tribunal affirmed the delegate’s decision essentially on this basis. 

23. The grounds of the application to the Court are in the following terms:

    “1. The Tribunal failed to comply with s 425 of the Migration Act 1958 (‘the Act’) in respect of the Third Applicant.

    Particulars

    The Third Applicant was not given an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    2. The Tribunal failed to comply with s 424A of 424AA or the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review.

    Particulars

    The Tribunal took into account information that had been given by the Applicant orally to the Minister’s Department in determining whether the Applicant was a truthful witness. That information was not put to the Applicant in accordance with s 424A or 424AA of the Act.”

    [Errors in the original.]

24. Ground one asserts a failure to comply with s.425 of the Act. Ground two asserts a failure to comply with s.424A or s.424AA of the Act. As mentioned earlier, this application was prepared by the applicants’ former solicitors. The affidavit annexing the transcript of the Tribunal hearing had also been prepared, on their behalf, by their former solicitors.

25. When the matter was called today the first applicant appeared in person.  He was assisted by an interpreter in the Bengali language.  The Minister was represented by a solicitor.  Both parties have filed written submissions.  The first applicant confirmed that he would speak on his own behalf and for his wife and daughter.

26. The first applicant complained that the Tribunal did not believe anything that he or his family said.  As I sought to explain to the first applicant, there is no obligation on the Tribunal to believe anything, or indeed, everything that an applicant says to it. 

27. I sought to explain to the first applicant the relevant extent of the Tribunal’s obligations in that regard.  Simply, the Tribunal’s disbelief of much of what the applicants said was probative of the material that was before it.  The Tribunal’s findings of fact, which included findings on its assessment of the evidence and claims put before it, were all findings that were reasonably open to it to make on what was before it.  In the circumstances, that complaint made by the applicant today does not reveal jurisdictional error on the part of the Tribunal.  The one additional complaint pressed by the applicant today relates to ground one. 

28. The first applicant had filed written submissions in these proceedings. When these were drawn to his attention, he explained that they had been drafted by a “friend” in Bangladesh, whom I understood may have been a lawyer. The first applicant himself was unable to explain what had been written on the applicants’ behalf in those submissions. 

29. Ground one asserts that the Tribunal failed to comply with s.425 of the Act in relation to the third applicant. That is, the first and second applicants’ daughter. In short, the assertion is that she was not given the opportunity to give her evidence and present arguments in relation to the review.

30. Before the Court today, the first applicant pressed that his daughter should have been asked questions by the Tribunal at the hearing specifically about her fear of harm.

31. Pursuant to s.425 of the Act, the Tribunal was obliged to invite all of the applicants to a hearing, including the third applicant, so as to give them the opportunity to give evidence and present arguments in relation to the issues in the review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156). It is the case that such an invitation and the opportunity to give that evidence, must be a meaningful opportunity, not some “hollow shell” (see Mazher v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31] and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 at [33]).

32. The particulars to the ground do not describe what issues the third applicant was prevented from advancing at the hearing. However, the applicants’ written submissions state that the third applicant had claimed that she faced sexual harassment if she were to return to Bangladesh. The Tribunal was said to have failed, in breach of s.425 of the Act, to ask her relevant questions about this alleged sexual harassment.

1. The applicants’ written submissions, particularly with reference to various Court authorities, also seek to expand the scope of ground one to include a complaint that the Tribunal failed to consider this claim, and failed to fulfil its duty to “inquire” about it. 

2. None of these iterations of the applicants’ grounds are made out on the evidence before the Court.  The relevant parts of the evidence are as follows. 

3. First, as set out above, the third applicant, applied as a member of the first applicant’s family.  She herself did not, at that time, advance claims on her own behalf.  The first applicant’s claims, essentially, were that he, and for that matter, the second applicant, feared harm from his political opponents in Bangladesh and for reason of his political activities in Bangladesh.

4. Second, however, as part of his claims, the first applicant did state in a Statutory Declaration, his fears for his daughter.  A part of the Statutory Declaration made on 4 February 2014 and reproduced at Court Book page 122 reads, in part, as follows:

   “After I returned, I started receiving threatening calls to abduct my daughter.”

   The first applicant also states (at CB 122.6):

   “I particularly feared that my daughter may become a victim of this political vendetta.”

5. Third, in a Statutory Declaration made on 13 November 2014 (CB 231 to CB 232), the third applicant stated:

   “The Awami League supporters used to vilify and demonise me using filthy word and warn that they would abduct me and do anything.  They used to tease me with vulgar words.  In April 2011, I was fortunate to escape from an accident which we believed carried out by my father’s political opponents.”

   Later, in another document provided to the Tribunal on 3 December 2014, the applicant stated ([9] at CB 279):

   “…if we go back to our country again we will be victimise [sic] or could be killed by father’s political opponents.  I fear I will be abducted by my father’s political and business enemies and may face sexual violence.”

6. Fourth, pursuant to s.425 of the Act, the Tribunal invited all of the applicants to a hearing. The third applicant also attended at that hearing.

7. Fifth and importantly, having regard to the transcript of the Tribunal hearing, which the applicants, through their former solicitors, have put before the Court, the following passages are important (T32 at line 31 to T33 at line 11):

   “[Member]: I didn’t have any other questions for you. I don’t have any questions specifically for your wife and daughter, but I will ask them if there’s anything that they want to say to the Tribunal. Is there any particular evidence that you wanted me to take from your wife and daughter?”

   [Interpreter]: So he said that after the result from the RRT, his daughter has become very depressed, so he has had to consult a psychologist, and he would like you to speak to his daughter, because she could tell you about the trauma that she has been through, and she – he believes that she – an innocent child has the right to live a safe and peaceful life. However, he did mention that since the result of the RRT was … (not transcribable) .. – I think he’s made some mistake there, could I clarify that?

   [Member]: Do you mean the decision of the delegate? Okay, we don’t have any time left today for me to take evidence from your daughter. What I will do is I will adjourn the hearing for today. If you would like me to take oral evidence from her, then I will call you back for another day. Alternatively, if you would like to – I’m happy to give time for you to provide a written statement from her. What would you like to do?

   [First applicant]: Would like to go for the written submission.

   [Member]: Okay.

   [First applicant]: I think we already - - -

   [Member]: You’ve provided a statement from her, I know, I’ve got that. But it seems like there’s extra evidence that he wants provided, so I will – that’s fine. I will adjourn the hearing for today, with the view to not holding a further hearing, but keeping the option open. What I might do is just ask your wife and daughter to come back in at this stage.”

8. The applicant’s wife, the second applicant, and daughter, the third applicant, were recalled and the following exchanged occurred (T33 at line 15 to line 29):

   “[Member]: Please have a seat.  I’ve just been explaining to [the first applicant] that we don’t have any more time for the hearing today.  I’ve finished taking his evidence, and I didn’t have any further questions for him.  He stated that he in particular wanted me to take evidence from [the third applicant].  I said that I’m happy to adjourn the hearing to another day, or alternatively to give you time to provide a further written statement of any evidence that you want to.  At this stage, he stated that he would like to provide a written statement. Is there anything – so what I will do is adjourn the hearing, but not with the expectation that there will be a further hearing.

   Is there anything either of you wanted to say to me?

   [Interpreter]: Okay, so [the third applicant] said that as you have stated that there isn’t much time today, and as her father has agreed to submit a further written submission, that’s what she agrees to as well.

9. I note, for the sake of completeness, that the Tribunal also asked the second applicant, the first applicant’s wife, if there was anything further she wanted to say. 

10. On the evidence that is before the Court, the third applicant was provided with a meaningful opportunity to give evidence in relation to that aspect of the first applicant’s claims that related to her. That is, the claim of abduction and harassment.  She chose not to take up the offer to give oral evidence, and she agreed that she would provide a written statement. 

11. In the circumstances, I cannot see that she was denied a meaningful opportunity to give her evidence.  The Tribunal offered her that opportunity by offering to adjourn the hearing. Both the first and third applicant declined that offer, and provided a written statement which, on the evidence, the Tribunal did consider. 

12. It is important to note that the aspect of the family’s claim relating to the third applicant, that is, her claim of fear of sexual harassment and abduction, was said, in the materials that they had provided to the Tribunal, to arise because of the father’s claimed political involvement and activities. This was a claim that the Tribunal comprehensively rejected. It gave reasons for this.  As the ground is expressed, it is not made out. 

13. The applicants’ written submissions make reference to a number of authorities. I note the reference to the High Court’s judgment in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (“SZIAI”). It appears what the submissions seek to argue is that the Tribunal’s duty to inquire was engaged, and that the Tribunal failed to fulfil this particular obligation.  It would appear that the complaint, as expressed in the written submissions, is that the Tribunal should have fulfilled its duty to inquire of the third applicant at the hearing by asking her questions about the sexual harassment claim. 

14. However, I cannot see that the circumstances of the case present the exceptional circumstances that enliven any obligation to inquire, as that was explained in SZIAI.  There is no general duty on the Tribunal to make inquiries (Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992). It is for the applicants to provide the information and the evidence to make out their claims. However, as the High Court recognised in SZIAI (at [25]), there may be some circumstances where there is a duty to inquire. This is not such a case.

15. In any event, on the evidence that is before the Court, the third applicant was given the opportunity return on another date or to make a written statement.  Following her father’s election, she endorsed his election not to pursue another opportunity for a further oral hearing.  I cannot see how, in the circumstances, the Tribunal was compelled to ask questions of the third applicant at the hearing when both the first and the third applicant agreed that their preferred choice was the written statement. 

16. The applicants’ written submissions also make reference to such authorities as Htun v Minister for Immigration and Multicultural Affairs [2001] HCA 1802; (2001) 194 ALR 244 (“Htun”). The submissions appear to raise the complaint that the Tribunal failed to consider the third applicant’s claim of sexual harassment and abduction.

17. It is the case that a failure to consider a claim expressly made or clearly arising from the circumstances presented, or a failure to deal with a substantial, clearly articulated argument relying upon established facts, may reveal jurisdictional error (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, Htun and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1).

18. However, on the evidence that is before the Court, the Tribunal plainly considered the claim that specifically involved the third applicant’s circumstances and claimed fears. I note in this regard the Minister’s submissions refer to particular paragraphs of the Tribunal’s consideration.  I would add to those paragraphs, [18] (at CB 328 to CB 329), [20] (at CB 329) to [22] (at CB 329 to CB 330).

19. It is to be remembered that the claimed abduction and/or sexual harassment of the third applicant was raised by the first applicant in the context of the fears that he had for his family as a result of his own political activities, and a fear from his political opponents. This included the third applicant. 

20. The third applicant made statements in support of, or in corroboration of, the claim of sexual harassment.  On the evidence, the Tribunal considered this claim as it was made, and made findings reasonably open to it, which were dispositive of this aspect of the applicants’ claims as they arose and developed in the review. 

21. The applicants’ written submissions also appear to complain that the Tribunal did not “adequately consider” the claims involving the third applicant under the complementary protection criterion. In all the circumstances, this can only be seen as a complaint that the Tribunal did not accept that this aspect of the applicants’ claims led to a real risk of harm. That is, the applicants seek to challenge that conclusion, and the factual findings that informed that conclusion.

22. The Tribunal’s findings of fact were reasonably open to it, and were reasonably available on the material that was before it.  In all, no jurisdictional error is revealed by ground one as it is pleaded or as it is explained in written submissions, or in light of the first applicant’s oral submissions today. 

23. Ground two asserts a breach of s.424A and s.424AA of the Act. The ground refers to “information” given by the first applicant to the delegate orally at an interview. The ground itself does not identify that “information”, other than that the Tribunal relied on this “information” to find adversely to the first applicant’s credit.

24. Pursuant to s.424A(1) of the Act the Tribunal is required to put to an applicant, in writing, information that it considers “would be the reason or a part of the reason” for affirming the delegate’s decision. There are, of course, a number of exceptions to this obligation, as set out in s.424A(3) of the Act. It is the case that what an applicant says orally to the delegate at an interview does not fall within any of those exceptions.

25. On the evidence that is before the Court, I agree with the Minister that there are two such pieces of “information” to which the Tribunal refers in its decision record, which may be said to arise from, or relate to, what the first applicant is reported to have told the delegate orally at a hearing.

26. The first piece of information is the first applicant’s evidence about when the third applicant was attacked (at [21] at CB 329). The second is the first applicant’s evidence about when he went into hiding (at [30] at CB 332). 

27. The difficulty for the applicants today is that, on the evidence, both these pieces of “information” were specifically raised in the Tribunal’s s.424A letter. That letter is in evidence before the Court (CB 282 to CB 286). One of the particulars referred to earlier, particular 9, where the Tribunal specifically drew the first applicant’s attention to “information” regarding the attack on the third applicant is as follows ([9] at CB 285):

    “9.    At the departmental interview on 17 March 2014 you stated that when your daughter came under attack you decided to leave the country.” 

28. The first applicant’s attention was drawn to that “information”, and the Tribunal explained why it was relevant to the review.  Similarly, at particular 7, the Tribunal’s letter stated ([7] at CB 284): 

    “7.    At the departmental interview on 17 March 2014 you did not refer to being in hiding in Bangladesh.” 

29. It is difficult to see the basis for the applicants’ ground. The reference in the applicants’ written submissions to the Court, again, merely restate what is in the ground, and then assert that the “information” was not put to the applicants, in accordance with s.424 of the Act. I read that as s.424A or s.424AA of the Act. As I said, I can only agree with the Minister that that assertion is not made out in light of the evidence.

30. There was no breach of s.424A of the Act. Section 424AA of the Act is a section that is a facility, or a mechanism, by which any obligation in s.424A(1) may be otherwise discharged by the Tribunal, by putting the relevant “information” to the applicants orally at a hearing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46). The Tribunal elected not to do that, but to write to the applicants. Section 424AA of the Act was not engaged. In all, ground two is not made out.

31. There is no jurisdictional error in the Tribunal’s decision. The application to the Court should be dismissed.  I will make that order. 

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 10 July 2017