AVT16 v Minister for Immigration

[2017] FCCA 1984

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVT16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1984

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – show cause hearing – factors considered – no arguable cause raised by the grounds of the application – application dismissed.

Legislation:

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

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

Cases cited:

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZBYRv Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415

Applicant: AVT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 877 of 2016

Judgment of: Judge Nicholls

Hearing date: 2 August 2017

Date of Last Submission: 2 August 2017

Delivered at: Sydney

Delivered on: 2 August 2017

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Mr R White of Mills Oakley

ORDERS

1. The application made on 14 April 2016 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 877 of 2016

AVT16

Applicant

And

MINISTER FOR IMMIGRATION & 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 Act 1958 (Cth) (“the Act”) on 14 April 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 March 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a Protection (Class XA) visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and a second bundle of relevant documents also filed and tendered by the Minister (“the Supplementary Court Book” – “SCB”, “RE2”).

Before the Court

1. On 26 May 2016 various orders were made, by consent, by a Registrar of the Court for the progress of the matter. These included giving the applicant the opportunity to file any amended application and any further evidence by way of affidavit. The applicant has not filed any further evidence, nor has he filed an amended application.

2. The applicant appeared before a Registrar of the Court at a mention on 27 October 2016 and various orders were again made on that date, including that the matter be set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), and orders directing the applicant and the Minister to file written submissions. I note that the Minister has complied with the orders and filed written submissions on 26 July 2017. The applicant has not filed any written submissions.

Background

1. The following background is relevant. The applicant is a citizen of Bangladesh. He claimed to be of Bengali ethnicity and Sunni Muslim faith (CB 67). He arrived in Australia on 6 May 2013 as an “unauthorised maritime arrival” (CB 1 to CB 19 and CB 34). On 1 July 2013, he was interviewed on arrival (“the entry interview”) (CB 1 to CB 19). He applied for a protection visa on 5 September 2013 (CB 20 to CB 81). With his protection visa application the applicant provided a Statutory Declaration dated 15 August 2013 (CB 67 to CB 70).

2. The applicant claimed to fear harm on the basis of his involvement with the Bangladesh National Party (“BNP”), and threats to his life from the opposing Awami League (“AL”) due to his political opinion.

3. On 8 September 2014, the applicant attended an interview with the delegate. His representative (a registered migration agent) provided the delegate with post-interview submissions on 15 September 2014 (CB 91 to CB 98), which were expressly addressed by the delegate in her decision of 12 November 2014 (CB 100 to CB 118).

4. The delegate refused to grant a protection visa to the applicant. The delegate did not consider the applicant to be a credible witness. She found the applicant provided “vague” evidence about his involvement with the BNP (CB 108.6), and only gave “broad information about the main party policies” (CB 109.9). The delegate did not accept that the applicant was involved in the BNP “to the extent claimed” (CB 109.8), nor did the delegate accept that he was a person of interest to the AL (CB 110.4).

5. The applicant applied for review to the Tribunal on 21 November 2014 (CB 119 to CB 120). The applicant attended a hearing before the Tribunal on 4 March 2016 where he was assisted by an interpreter in the Bengali language (CB 126 to CB 138).

6. From the Tribunal decision record dated 22 March 2016, it is apparent that at the hearing before the Tribunal, the applicant provided four documents to the Tribunal ([52] at CB 153 to CB 154, see also the reproduced documents at SBC 2, CB 136, SCB 3 and CB 83).

7. In his written submissions of 26 July 2017, the Minister provides a comprehensive summary of the Tribunal’s decision at [11] – [23]. Except for parts of [16], [21] and [22] (which provide the Minister’s view of the Tribunal’s findings), I am satisfied that this is a fair representation of the Tribunal’s decision and for convenience, I adopt those paragraphs for the purposes of this judgment today:

   “[11] On 22 March 2016, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Protection visa (CB 143-161).

   [12] The Tribunal accepted that the applicant was a young man from Bangladesh of Bengali ethnicity and the Sunni Muslim faith who left Bangladesh in 2008 and travelled to Malaysia where he worked for five years before returning to Bangladesh in January 2013. It also accepted that he returned to Malaysia in February 2013, from which he travelled to Indonesia and travelled by boat to Australia where he arrived on 6 May 2013 (CB 144, [1]).

   [13] The Tribunal also expressly considered and accurately summarised the applicant’s claims in his statutory declaration (CB 144, [2]-[3]) and extracted parts of his statutory declaration in its decision (CB 147-148, [22]). It also considered and summarised: the applicant’s evidence at his entry interview conducted on 1 July 2013 (CB 146-147, [20]-[21]); his oral evidence at the delegate’s interview held on 8 September 2014 (CB 148-149, [23]-[28]); the contents of his post-interview submission (CB 149, [29]-[31]) and his oral evidence at the Tribunal hearing (CB 149-155, [32]-[57]). As noted above in paragraph 10, the Tribunal also expressly considered the applicant’s supporting documents.

   [14] The Tribunal accepted specific aspects of the applicant’s claims relating to his personal circumstances and past living arrangements, travel and employment (CB 156, [62]). Despite being expressly mindful that he was a young man who appeared before the Tribunal without representation, the Tribunal found the applicant had not told the truth about the reasons he left Bangladesh in 2008 or 2013 (CB 156, [63]) and concluded that he was not a credible witness (CB 159, [75]). The Tribunal identified a number of reasons to support its adverse credibility findings (CB 156-159, [63]-[74]). It found the applicant’s claims that he was targeted by the AL in 2013 after returning from five years in Malaysia was ‘highly improbable’, particularly as he told the Tribunal he was not involved in any BNP activity when he returned to Bangladesh and was not involved in the BNP when he returned to Malaysia. It found his claim that he still had a profile as a BNP supporter because of his work for them prior to leaving for Malaysia in 2008 was ‘far-fetched and lacking plausibility’. It also relied on DFAT information that indicated supporters or members of political parties in Bangladesh were not at risk of being arrested or living in fear of political violence on a
   day-to-day basis (CB 156, [63]-[64]).

   [15] The Tribunal found the applicant’s evidence about his involvement in the BNP student wing (the Chhatra Dal) was ‘vague and unconvincing’ and that he variously referred to being vice president, secretary and media spokesperson. It also found he was ‘unable to provide any meaningful details’ about the BNP, such as its boycott of the 2014 elections (CB 157, [65]). The Tribunal was ‘troubled’ the applicant said in his oral evidence that the BNP party flag was blue when it was actually red and green and found that it ‘strains credulity’ that a spokesperson for the BNP who participated in protests and processions was unable to identify the colour of the BNP party flag. The Tribunal found the reason the applicant did not involve himself in politics when he returned to Bangladesh in 2013 was because he was not a politically active person and did not accept he had any genuine interest in the BNP or was ever politically active in support of the BNP (CB 157, [66]).

   [16] Whilst the Tribunal noted the applicant had claimed at the hearing that he was on posters and magazines produced by the BNP, it found he had not produced any documentary evidence to corroborate the claims. The Tribunal expressly considered the various documents the applicant had provided in support of his claims (CB 157, [67]; CB 159, [73], [74]) but identified various deficiencies with some of his documents and found they did not assist his case. For example, the Tribunal noted there were two letters with BNP in their letterhead that stated the applicant was involved in the BNP but found one was dated 7 August 2013 (after the applicant left Bangladesh) and one misspelt the BNP as ‘Bangladesh Natoinal party’ (sic). It also noted there was no explanation for why the letter from the doctor purporting to corroborate the applicant’s knife injury was not provided earlier or why it was written in English back in 2007. The Tribunal noted country information about the prevalence of documentary fraud in Bangladesh and found the applicant’s supporting documents did not overcome its credibility concerns and gave them no weight (CB 157, [67])…

   [17] Whilst noting country information that indicated the political environment in Bangladesh was volatile and often violent, the Tribunal was not satisfied the applicant was ever actively involved in the BNP as he had claimed (CB 157-158, [68]-[69]). The Tribunal was also concerned that the applicant raised a new claim at the Tribunal hearing that people threatened his parents at his family home. It found the applicant’s evidence about this claim was ‘vague and unconvincing’ given that his family remained living in his home village in Bangladesh and the applicant did not raise this claim in his statutory declaration or (as he conceded at the hearing) at his interview with the delegate (CB 158, [70]).

   [18]The Tribunal preferred the applicant’s evidence at the hearing that his parents were not members of the BNP or actively involved in the BNP. It found that even if it accepted his claim at the hearing that his brother attended some processions (which it did not), it was not satisfied this would result in the applicant facing serious or significant harm for reasons relating to his family members’ support of the BNP (CB 158-159, [71]).

   [19] The Tribunal did not accept as credible the applicant’s claims that he was targeted by extortionists associated with the AL because he was involved in the BNP. Nor was it prepared to accept that the applicant’s store was targeted by criminals because they perceived he had a lot of money or for any other reason (CB 159, [72]). Whilst noting the untranslated Bengali document (at SCB 2) that indicated the applicant complained to police, the Tribunal remained troubled by the late production of this document and that the applicant’s statement of claims did not mention he reported threats against him to the authorities (CB 159, [73]). It found the untranslated Bengali document did not assist the applicant’s case. Whilst the Tribunal obtained a simultaneous translation of the document at the hearing from the interpreter, it noted the applicant did not provide any formal translation of the document and that it could have been fraudulently manufactured. It gave the document ‘no weight’ (CB 159, [74]).

   [20] The Tribunal did not accept the applicant was a credible witness or had been truthful about his reasons for leaving Bangladesh in 2008 and 2013. It did not accept that he was involved in the BNP or targeted by the AL or suffered any of the past harm he claimed he experienced (CB 159-160, [75]). Although the Tribunal considered it was ‘possible’ that the applicant and his family ‘considered themselves’ to be supporters of the BNP and the applicant may have had some exposure to BNP youth groups when he was studying, the Tribunal did not accept that he held any position within the BNP or that his family members were past or current BNP activists (CB 160, [76]). Nor did it accept that the applicant was of any adverse interest to members of the AL or to the authorities because of his political involvement in the BNP or that he was perceived as having money after he returned to Malaysia or because of his family’s claimed involvement in the BNP or any combination of the above In addition, it did not accept that the applicant’s shop was ever targeted or that he received demands for money or was threatened on 28 January 2013 or assaulted on 11 February 2013 (CB 160, [77]). Given its credibility concerns, the Tribunal was not satisfied there was a real chance that the applicant would face serious harm for the reasons he claimed (CB 160, [78]).

   [21]Although not expressly claimed by the applicant, the Tribunal considered whether he faced harm on his return to Bangladesh as a failed asylum seeker but found the country information (discussed with the applicant at the hearing) indicated returned asylum seekers to Bangladesh did not face a real chance of serious harm or significant harm (CB 160, [79]). For these reasons, and after considering his claims individually and cumulatively, the Tribunal did not accept the applicant faced a real chance of serious harm (CB 161, [80])…

   [22] Having rejected his claims of past harm in their entirety and considering its previous factual findings, the Tribunal was also not satisfied there were substantial grounds for believing he would suffer significant harm (CB 161, [81])…

   [23] For these reasons, the Tribunal was not satisfied the applicant met the criteria for the grant of a Protection visa in either s 36(2)(a) or s 36(2)(aa) of the Act (CB 161, [82]-[83]).”

   [Footnotes omitted.] [Errors in the original.]

8. The applicant’s grounds of review are as follows:

   “1. The Tribunal failed to assess my harm on the basis of my support to the BNP.

   2. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

   3. The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League Party as an independent claim.

   4. The Tribunal failed to assess the escalating political violence in Bangladesh since 2012.”

9. As set out above, this matter was set down for a show cause hearing pursuant to Rule 44.12 of the FCC Rules. At the hearing, the applicant appeared in person. He was assisted by an interpreter in the Bengali language. A senior solicitor appeared for the Minister.

10. The issue for the Court today is whether the grounds of the application raise a legally arguable case for the relief that the applicant seeks. From what is noted on his application, the relief the applicant seeks is an order that the Tribunal’s decision be quashed, and that his case be returned to the Tribunal for reconsideration according to the law.

11. In the circumstances, if the Court cannot be satisfied that an arguable case is raised against the Minister, the application will be dismissed. Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219), or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

12. Before the Court in explanation of his case, the applicant submitted that the Tribunal “didn’t look at [his evidence] properly” and “did not give him justice.” He submitted that in relation to “what happened to [him] in [his] country”, he gave “all [his] evidence”, but the Tribunal did not believe him.

13. As I sought to explain to the applicant, on its own, the Tribunal’s disbelief of his claims, or parts of his claims, is not a basis upon which to assert legal error on the part of the Tribunal.  No legal error arises in circumstances, as in the current case, where the Tribunal has made findings of fact which are comprehensive of the applicant’s claims, and this includes findings of fact about the credibility of the applicant’s claims, in circumstances where those findings are reasonably open to the Tribunal on what is before it.

14. In that light, none of the applicant’s grounds present any arguable case for the relief that the applicant seeks.  As the Minister’s solicitor submitted, what the applicant put orally to the Court was, in effect, a plea for the Court to engage in impermissible merits review. The applicant’s grounds similarly, and variously, fail to articulate any arguable case in law. 

15. Ground one asserts that the Tribunal failed to assess the applicant’s claims to fear harm on the basis of the applicant’s support for the BNP. 

16. It must be said that in light of the evidence before the Court, this ground has no merit whatsoever. It certainly does not raise an arguable case for the relief the applicant seeks.  Any plain, let alone fair, reading of the Tribunal’s decision record reveals the Tribunal comprehensively dealt with this claim made by the applicant, and each aspect of the claim as was presented to it.

17. In the circumstances, the applicant either does not understand or, with respect, refuses to accept, that the Tribunal found that the applicant’s claims and evidence in this regard, were not credible.  The Tribunal found he did not have any genuine interest in the BNP, or had ever been politically active, including in support of the BNP.  The Tribunal’s conclusion, and the various findings that informed that conclusion, were reasonably open to the Tribunal on what was before it.

1. No arguable case is raised by ground one. In spite of the applicant’s request to the Court to provide him with “justice” today, the Court cannot intervene to change the findings of fact made by the Tribunal in the circumstances that I have described.  No arguable case is raised by ground one. 

2. Ground two asserts that the Tribunal failed to consider all of the aspects of the applicant’s claims.  It is the case that any such failure on the part of the Tribunal may reveal jurisdictional error (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE (No 2)”) and ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (“Applicant WAEE”)). 

3. In the current case, the applicant’s ground does not identify what aspects of his claims the Tribunal failed to consider. Nor did the applicant identify any such omission before the Court.  In the circumstances, ground two can only be seen as an assertion that the Tribunal did not accept the applicant’s claims. This is to be distinguished from an assertion that it did not consider those claims.  In short, the applicant’s ground seeks impermissible merits review from the Court. 

4. On the evidence before the Court, the Tribunal considered all of the aspects of the applicant’s claims to fear harm. Its conclusion that the claims were not credible and did not satisfy either of the criteria for the grant of the protection visa (that is, s.36(2)(a) and s.36(2)(aa) of the Act), is not indicative of a failure to consider the applicant’s claims. No arguable case is raised in ground two.

5. Ground three asserts that the Tribunal failed to consider the applicant’s claim “on the basis of [his] political opinion against the Awami League Party as an independent claim”. 

6. The difficulty for the applicant now is that, on the evidence before the Court, I cannot see that the applicant either expressly, or, for that matter impliedly, advanced a claim that he feared harm because he had an anti-AL political opinion, separate from his being targeted by the AL because of his involvement with the BNP.  In short, the harm that he feared from the AL, on any fair reading of his claims, was because of his claimed support for the BNP and the fact that the AL were the political opponents of the BNP.  

7. In the circumstances, it was reasonably open to the Tribunal on what was before it, to proceed on the basis that the applicant’s claimed fear of harm from the AL was because of the applicant’s own, and the applicant’s family’s claimed political support for, and the subsequent involvement with, activities of the BNP.  Ground three ignores, or with respect, fails to understand, that it was reasonably open to the Tribunal, in the circumstances presented, to find as facts, that the applicant never had a genuine interest in, or was not politically involved, or active, with the BNP.  Again, in the circumstances, the Tribunal gave cogent reasons for its disbelief of the applicant’s evidence and the applicant’s claims. 

8. As the Minister submits, the Tribunal is not obliged to consider a claim that is not expressly made, or does not clearly arise, on the material that is before it (NABE and Applicant WAEE).  Further, I cannot see that there was any argument of substance advanced by the applicant that was not considered by the Tribunal (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389). Again, the applicant appears not to understand the difference between the Tribunal not considering a claim, and not accepting a claim. In all, there is no arguable case in relation to ground three.

9. Ground four asserts that the Tribunal “failed to assess the escalating political violence in Bangladesh since 2012”. 

10. Any plain reading of the Tribunal’s decision record reveals that the Tribunal did not fail to consider this claim. In its decision record, at [68] (at CB 157 to CB 158), the Tribunal specifically acknowledged that the political environment in Bangladesh was “volatile and often violent”.  At [68] (at CB 157 to CB 158) and [69] (at CB 158), the Tribunal expressly considered country information in relation to that matter. 

11. The ground again appears to ignore the Tribunal’s critical and central finding, that the applicant was not credible in his claims of political involvement with the BNP, and, therefore, his claimed involvement in the political environment of Bangladesh. 

12. As the Minister submits, in this light, it was not necessary for the Tribunal to further consider, and to make a finding, on general political violence in Bangladesh and its likely impact on the applicant’s circumstances on return to Bangladesh.   The factual premise on which the applicant’s claims arose was rejected by the Tribunal.  In those circumstances, the Tribunal was not required to then go on and consider the situation generally in Bangladesh.  Again, no arguable case arises in ground four.

13. None of the applicant’s grounds raise an arguable case for the relief that the applicant seeks. 

14. It is the case that at a show cause hearing the applicant is confined, pursuant to r.44.13 of the FCC Rules, to the grounds of the application. However, I did consider whether it was appropriate in the interests of justice that this rule should be waived pursuant to r.1.06 of the FCC Rules.

    However, it is clear that the applicant has come to this Court in the expectation of the Court reviewing the merits of his claims to fear harm in Bangladesh. As I sought to explain to the applicant, the law does not permit the Court to review the merits of his claims.  Even if the Court formed a view that the applicant was telling the truth about his claims, the Court is not permitted to intervene to change the factual findings made by the Tribunal, including its findings as to the credibility of the applicant’s claims, in circumstances where the Tribunal’s findings were comprehensive of the applicant’s claims and were reasonably open to it from what was before it. 

15. In this case, the Tribunal gave comprehensive and cogent reasons for its disbelief of the applicant’s claims.

16. Further, I cannot see, on the material before the Court, that there is any indication that the Tribunal failed to adopt fair procedures in the conduct of the review as is required by the Act. The applicant was invited to a hearing pursuant to s.425 of the Act. The applicant has not provided any transcript of the Tribunal hearing to the Court, despite opportunity to do so. Therefore, the only evidence that is available to the Court is the Tribunal’s references to what occurred at the hearing which are set out in its decision record. On that evidence, I am satisfied that the issues in the review, and in particular, the issues that were not “live” issues as a result of the delegate’s decision, were aired at the Tribunal hearing (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).

17. In short, the applicant was given a fair opportunity to give his evidence and address the issues that, ultimately, were dispositive of the review.  In any event, after the delegate’s decision, the applicant would have been squarely on notice that his credibility was a central matter in the review and that the credibility of his claims was squarely at issue. 

18. For the sake of completeness, I also cannot see that there has been any breach of the Tribunal’s obligations pursuant to s.424A of the Act.

19. As was held in SZBYRv Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”) (at [17]), the application of s.424A(1) of the Act is to be determined in advance, and independently, of the Tribunal’s published reasons. There is no evidence before the Court to indicate any breach of s.424A(1) of the Act by the Tribunal.

20. To the extent that the decision record can inform what is “information” for the purposes of s.424A(1) of the Act, [with reference to the Tribunal’s “consideration” as required by s.424A(1) of the Act and see Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [24]] then the Tribunal decision clearly shows that the Tribunal relied on country information, the applicant’s evidence to it, documents that the applicant gave in support of his claims, and written claims made by the applicant, both in connection to his application for the visa, and the application for review to the Tribunal. However, all of that information is exempt from the obligation set out in s.424A(1) of the Act pursuant to s.424A(3) of the Act.

21. The Tribunal’s references to what was said by the applicant at the arrival interview do not fall within any of the exceptions to s.424A(1) of the Act. However, the Tribunal’s references to this, was for the purpose of setting out the applicant’s claims (“Evidence provided to the Department”) ([20] at CB 146 to CB 147 to [21] at CB 147). When regard is had to the Tribunal’s subsequent analysis, it cannot be said this was “information” which the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision. Further, there is nothing in the terms of this material (at [20] at CB 146 to CB 147 to [21] at CB 147) that would constitute in its terms, a rejection, denial or undermining of the applicant’s claims to fear harm (SZBYR at [17]). On this basis, s.424A(1) of the Act is not enlivened.

22. In its assessment of the claims and evidence before it, the Tribunal made reference to what the applicant said at the interview with the delegate (see [70] at CB 158). However, even if some obligation pursuant to s.424A(1) of the Act was enlivened, this was put orally to the applicant at the hearing. On the evidence, the Tribunal complied with s.424AA of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).

23. In any event, I cannot see that anything that was said at [70] (at CB 158) was, in its terms, a rejection, denial or an undermining of the applicant’s claims to fear harm. Therefore, this was not information for the purposes of s.424A(1) of the Act (SZBYR).

24. In short therefore, I cannot see that there is any reason to dispense with r.44.13 of the FCC Rules in this case. In all, the application is to be dismissed pursuant to r.44.12 of the FCC Rules. I will make that order.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  21 August 2017