BFW16 v Minister for Immigration

[2018] FCCA 2371

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFW16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2371

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal’s decision was unreasonable – whether the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

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

Cases cited:

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 297 ALR 225

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90; (2015) 318 ALR 450
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549

Applicant: BFW16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1294 of 2016

Judgment of: Judge Nicholls

Hearing date: 13 March 2018

Date of Last Submission: 13 March 2018

Delivered at: Sydney

Delivered on: 30 August 2018

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie of Dobbie and Devine Immigration Lawyers

Counsel for the Respondents: Ms N Laing

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 24 May 2016 and amended on 22 September 2016 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1294 of 2016

BFW16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 May 2016 and amended on 22 September 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 May 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection 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”).  Also in evidence is the affidavit of Chloe Ryu, solicitor, made on 22 September 2016, annexing a transcript of the Tribunal hearing (“T”).

Background

1. The applicant is a citizen of Bangladesh (CB 32).  He arrived in Australia on 28 March 2013 as an “unauthorised maritime arrival” (CB 33).  He was taken into immigration detention and was interviewed by an officer of the Minister’s department on 11 April 2013 (“the entry interview”) (CB 1 to CB 18). He was ultimately granted a bridging visa and released from immigration detention on 22 May 2013 (CB 113.7).

2. The applicant applied for a protection visa on 1 July 2013 (CB 19 to CB 81). He had the assistance of a registered migration agent in making his application (CB 68).  He provided a Statutory Declaration dated 6 June 2013 in support of his application which set out his claims for protection (CB 82 to CB 85). 

3. The applicant attended an interview with the delegate on 3 November 2014 (CB 113.6).  Written submissions were provided by the applicant to the delegate by email on 10 November 2014 (CB 99 to CB 104).  The delegate refused the application for the visa on 20 November 2014 (CB 105 to CB 134).

4. The applicant applied to the Tribunal for review of the delegate’s decision on 10 December 2014 (CB 135 to CB 136). He attended a hearing before the Tribunal on 27 April 2016 (CB 151 to CB 154).  He provided written submissions to the Tribunal following the hearing on 9 May 2016 (CB 159 to CB 174).  The Tribunal affirmed the delegate’s decision on 12 May 2016 (CB 177 to CB 192).

5. The applicant claimed to fear harm on three bases.

6. One, because of his religious practice and dress.  The applicant claimed to have suffered threats and harassment because of his practice of Tabligh Jamaat (“TJ”).  Due to his conservative dress, he was mistakenly taken by members of the Awami League (“AL”) to be a follower of Jamaat-e-Islami (“JI”) (CB 82 to CB 85).

7. Two, that he was imputed to be opposed to the Bangladesh government, because of his religious practice and dress (CB 163).

8. Three, that his former brother-in-law threatened him over a dispute about a dowry, and custody over his sister’s children.  The brother-in-law was said to be “strongly backed” by the AL ([41] at CB 183).

9. The Tribunal accepted that the applicant was a follower of TJ and that he wore conservative dress.  It also accepted that his family had a custody and dowry dispute with his former brother-in-law in 2006 or 2007 ([44] at CB 183 to CB 184).

10. However, the Tribunal did not accept that the applicant had faced harassment or threats because of his religion, imputed political opinion, or for any other reason.

11. The Tribunal had significant concerns about the applicant’s credibility, particularly with regard to his account of why he left Bangladesh.  This was based on the applicant’s vague and inconsistent evidence as to the claimed events in Bangladesh ([45] at CB 184 to [48] at CB 186).

12. The Tribunal accepted those claims which it said had remained consistent over time.  However, the Tribunal found that while the applicant referred to the dowry and custody issues at the entry interview, he did not mention that he had been threatened by his former

    
    

    brother-in-law due to his association with JI, or that the brother-in-law was supported by the AL ([47] at dot point 3 at CB 185).

13. The Tribunal found that the applicant did not mention his troubles with his brother-in-law at the interview with the delegate until “directly asked” by the delegate (see further below) ([47] at dot point 3 at CB 185).

14. The Tribunal also found that the applicant’s claims were not supported by country information to which it had regard.  It could find no “independent information” to support the claim that followers of TJ faced a real risk of harm on religious or political grounds in Bangladesh.  Nor had the applicant provided any such information to the delegate or the Tribunal ([49] at CB 186 to [55] at CB 187).

The Application to the Court

1. The grounds of the amended application are in the following terms:

   “Grounds of application

   1. The Second Respondent committed jurisdictional error by failing to comply with s425 or failed to conduct the review required by s414 of the Migration Act 1958.

   Particulars

   (A) The Tribunal failed to comply with s425 of the Migration Act 1958 (‘the Act’) or failed to conduct the review required by s414 of the Act:

   (i) Subsection 425 (1) of the Act required the Tribunal to invite the Applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (ii) The Applicant was asked questions by the Tribunal about visits by Awami League party members to his home that he claimed occurred numerous times, but approximately six to seven times when he was at home (‘the visits’).

   (iii) The Tribunal did not accept that the visits occurred because the Tribunal found the Applicant provided ‘vague evidence, lacking in detail’ at the hearing (CB184 at [46]). When one has regard to the transcript of the hearing, it is clear that the Applicant’s response was neither vague nor lacking in detail. Furthermore, the Tribunal discontinued the line of questioning; for example, transcript at Q118-Q127. In those circumstances, the hearing required under s425 had not been concluded. Furthermore, the Tribunal relied upon its view that the Applicant’s evidence was vague and lacking in detail to find that the visits were fabricated claims (CB184 at [46]). In these circumstances, by proceeding to a decision, without inviting the Applicant to a further hearing, the Tribunal committed jurisdictional error because it did not conduct the review required by s414 of the Act and or because it had proceeded to a decision without completing the hearing required by s425 of the Act.

   2. The decision of the Second Respondent is unreasonable

   Particulars:

   (A) The decision of the Second Respondent is unreasonable.

   (i) The particulars at Ground 1(A)(ii) and Ground 1(A)(iii) are repeated.

   (B) The decision of the Second Respondent is unreasonable.

   (i) The Tribunal found that the fact that the Applicant did not mention at an ‘entry interview’ that his

   
   

   brother-in-law had threatened him because of his practice or association with Tabligh Jamaat or his brother-in-law being involved with the Awami League, added to the finding that he was not targeted in Bangladesh.

   (a) That finding was unreasonable, as the entry interview was not an interview where the Applicant was required to present all claims relating to why he was seeking protection in Australia, but was conducted in order for him to show why he should not be removed from Australia. (CB1)

   3. The Second Respondent committed jurisdictional error by failing to comply with s424A of the Act

   Particulars:

   (A) The Second Respondent committed jurisdictional error by failing to comply with s424A of the Act:

   (i) The Tribunal’s decision records the following in relation to an interview that the Applicant had with a delegate of the First Respondent:

   (a) That the Applicant initially replied in the negative when first asked if he had any other problems in Bangladesh apart from the Awami League. (CB182 at [37]).

   (b) That the Applicant had to be prompted by the delegate in relation to his claims that he had been threatened by his brother-in-law. (CB186 at [47]). 

   (emphasis added)

   (ii) The Tribunal relied on the above information as a reason or a part of the reason for affirming the delegate’s decision, because it found that if the Applicant had been threatened by his brother-in-law as claimed, the Applicant would have raised the claims relating to his brother-in-law initially, that he would not have answered in the negative, and that he would not have needed prompting by the delegate in relation to those claims. (CB185-186 at [47])

   (iii) Section 424A of the Act required the Tribunal to give to the Applicant, in the way that the Tribunal considered appropriate in the circumstances, clear particulars of that information, and to ensure, as far as was reasonably practicable, that the Applicant understood why the information was relevant to the review. The Tribunal failed to comply with 424A of the Act. Nor did it utilize s424AA of the Act to alleviate the requirement to comply with s424A of the Act. The Tribunal’s failure to comply with s424A of the Act therefore constitutes jurisdictional error.”

   [Errors in original. Emphasis in original.]

2. At the final hearing before the Court, the applicant was legally represented.  The applicant advised that he did not press ground one of the amended application.  However, he confirmed that the particulars (“A(ii) and A(iii)”) to ground one were relevant to ground two.

3. Ground two asserts that the Tribunal’s decision was unreasonable.  There are two sets of particulars.  Part “A” refers to particulars set out in ground one.

4. The applicant’s written submissions sought to explain this assertion as follows.  The Tribunal made adverse credibility findings.  These, in part, were based on the finding that the applicant had provided “vague evidence, lacking in detail” ([46] at CB 184).

5. The applicant submitted that that was not the case.  Therefore, the Tribunal’s finding in this regard was unreasonable.  As this was one of the reasons why the Tribunal rejected the applicant’s claims of past harm in their entirety, the whole of the Tribunal’s decision is therefore said to be unreasonable.

6. The applicant’s written submissions (at [24]) advised that part “B” of the particulars to ground two was not pressed.

7. Before the Court however, the applicant directed attention to the Tribunal’s decision record at [46] (at CB 184):

   “Firstly, at the hearing before me the applicant provided vague evidence, lacking in detail as to the difficulties he faced while in his home village as a follower of Tabligh Jamaat when they threatened him at his home which led him to flee Bangladesh. While he has consistently stated to the Department and Tribunal that he was threatened in the bazaar, he also claimed he was subsequently threatened while at home. At the hearing before me he said on 6 to 7 occasions or more the Awami League followers came to his home and on those occasions he escaped through the back door. He said they came on other occasions to his home but he was not there. However despite being asked to provide detail of these particular 6 or 7 incidents and as to who came on each occasion, what exactly happened and what was said; his evidence was vague, general and lacking detail. His evidence as to these incidents was that they came to his home many times and when asked what happened he said they didn’t do any damage, just asked for the applicant, became angry and pushed the table and chairs. He said they belonged to the Awami League and he knew 4 of them, which he named as he saw them putting up posters. When asked for more detail and to describe the events individually he said 3 to 5 people came and asked where he was and when they couldn’t find him they pushed the furniture. When the Tribunal again raised with him that his evidence appeared vague; and asked him to describe when, where, what actually happened on each incident and who came on each occasion; he said they came at 1am or 2 am and that everybody in the country with a beard had problems and he became afraid...”

8. The applicant relied on the High Court’s decision in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 297 ALR 225 (“Li”) at [23] – [24] per French CJ, [63] – [76] per Hayne, Kiefel and Bell JJ and [88] – [100] and [111] – [112] per Gageler J. He asserted that the reasoning of the Tribunal in the current case, was unreasonable in the manner explained by the High Court in Li.

9. The applicant then directed attention to the Tribunal’s decision record at [43] (at CB 183), [45] (at CB 184), [47] (at CB 185 to CB 186), [48] (at CB 186), and [57] (at CB 188), to submit that these paragraphs contain all of the reasons, “cumulatively”, which led to the adverse credibility finding.

10. The proposition arising from this was said to be that it was unreasonable of the Tribunal to find that the applicant’s evidence was “vague”.

11. To make good that proposition, the applicant referred to various parts of the transcript of the Tribunal hearing (T13.15 to T16.2 and I note that “Q” represents the Tribunal member and “A(INT)” represents the applicant through the interpreter):

    “Q105: Okay. And this was the first time you were aware people were upset with you because of your dress?

    A (INT): This is the first time, yeah. This was the first time.

    Q106: Okay. And then what happened?

    A(INT): They came many times into my place and to my house.

    Q107: Okay. So came many times. Are we talking 10 times?

    A(INT):  Many times but I cannot remember.

    Q108: Well, was it one, five, 10?

    A(INT):  Yeah, because sometimes when they came probably I wasn’t in my home and probably my mother didn’t disclose this matter to me because I might become afraid of them.

    Q109: So how many times did they come when you were at home?

    A(INT): Six to seven, could be more than that but roughly six, seven or could be more.

    Q110     : And so you were in the house when they came?

    A(INT):  Yeah, I opened the back door and escape from the house and went into a jungle.

    Q111: So on six to seven times you knew they came to your house because you saw them and you escaped?

    A(INT):  Yes.

    Q112     : And what happened – what did they do in the house?

    A(INT):  They didn’t do any damage but they ask where is your son and they like pushed the table. What he is saying exactly they pushed the table, chair, this sort of thing, they were angry and they pushed the chair, tables but didn’t do any mentionable harm.

    Q113     : And did they make – sorry. How many were there? Is it a big group that came all the time or - - -

    A(INT):  Three to five people.

    Q114     : Do you need your pen? It’s gone. Thank you. Three to five people.

    A(INT):  Yeah.

    Q115     : Okay. And this was the – who were these people?

    A(INT): They belongs to Awami League, they’re activists of Awami League.

    Q116: You didn’t know who they were?

    A(INT): I know four of them, they used to put posters on walls for Awami League so sometimes might be one of them, one of them came but I’m not quite sure did they come four of them at a time or not, yeah.

    Q117     : And then what made you finally decide to leave Bangladesh?

    A(INT):  ….. (0:50:10) I mean, before I left the country there many peoples had been killed in the country and the situation was deteriorating. On and off there were hartals going on and students couldn’t attend school and people couldn’t do their job and they also broke their cars and other vehicles, running vehicles on the street were broken.

    Q118: Can you give more detail about these six to seven threats, more detail about the six to seven occasions when they came to your house?

    A: Six to seven.

    Q119     : Six to seven.

    A(INT):  Like three to five people used to come and ask to my mum where I was and they couldn’t find me and my mother became very anxious for me and they – I already told that they used to push chair, table, these sorts of things, yeah.

    Q120: Don’t you think you’re being a bit vague?

    A(INT):  The people of my neighbour they used to tell me that some people were looking for me. I mean, they came in search of me I was told by neighbours.

    Q121: Is that after you left?

    A: ….. (0:52:49).

    Q122: Okay. But it just seems to me you’re just – you fled Bangladesh in fear of persecution because of these six to seven visits, you just seem vague as to the detail that I might expect if it was true.

    A(INT):  I mean, for the problem I went to Dakha. Yeah, I face problem over there as well and I saw – I mean, I hear the news that everyday people wearing hat – Islamic hat and there are people ….. (0:54:08) they came under attack and they were killed.

    Q123: You went to Dahka. When did you go to Dahka?

    A(INT):  I went and I stayed roughly a month and it was in 2012.

    Q124: So I just need more detail as to these six to seven visits. Did they – can you tell me more, when, where, how, what, what was said?

    A(INT):  They used to come at the dead of the night, like one – you can say morning, yeah. 1.00 PM or 2.00 PM and then - - -

    Q125: 1.00 AM.

    A(INT):  1.00 AM, sorry, 1.00 AM and 2.00 AM, sorry.

    Q126: Okay.

    A(INT):  Everybody in the country, those have beard and those used to wear Islamic caps they have problems and I became very afraid.”

    [Errors in original]

12. The applicant submitted that he did supply “details”, and that his evidence was far from “vague and lacking in detail” as the Tribunal found.

13. To make good this proposition, the applicant said, in summary, he had told the Tribunal that “people came to his house” in the “dead of night” at “one or two in the morning”.  When he saw them, he “fled out the back” (presumably of his house).  The “people” then asked his mother as to his whereabouts, but she could not tell them.  They then “pushed” furniture around.  The applicant was able to identify four of these “people” as AL members because he had previously seen them “put up posters”.

14. The applicant submitted before the Court that the Tribunal’s decision was unreasonable, because it was difficult to see what else the applicant could have told the Tribunal, given that he had “fled out the back” of the house, and was not present when these “people” entered the house.

15. The applicant’s submissions before the Court were that there was a “clear inference” to be drawn from what his mother was asked (the whereabouts of the applicant), that these “people” would have asked him about his suspected involvement as a JI member.

1. The applicant’s argument before the Court was that it was “not sufficient” for the Tribunal to “cloak” its findings with the use of such words as “vague” or “lacking in detail”.  This is because there was “significant detail” given by the applicant at the hearing.

2. It is of relevance to note, as was made clear, in my respectful view, by the plurality in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”) (at [130] per Crennan and Bell JJ):

   “In the context of the Tribunal’s decision here, ‘illogicality or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s.65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”

3. Further, SZMDS at [78] per Heydon J:

   “The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.”

4. The applicant’s ground two is not made out.

5. First, before the Court, the applicant’s submissions took some liberty with what the applicant actually told the Tribunal at the hearing (as set out in the transcript of the hearing in evidence before the Court).  There is nothing in the part of the transcript relied on now by the applicant (see above), or for that matter, elsewhere in the transcript, to indicate that the applicant’s evidence to the Tribunal was that he was unable to provide further details to the Tribunal as to what occurred on the occasions of the claimed attendance of these “people” at his house, because he had “fled out the back door”.

6. Rather, that is the submission made now by the applicant to the Court. It was not a submission made to the Tribunal to explain the applicant’s lack of detail as to what occurred.  It is clear from the transcript of the Tribunal hearing that the Tribunal made plain its view to the applicant, that his account of these incidents was lacking in detail (see especially T15.14).

7. Second, before the Court, the applicant’s solicitor posited that it was “hard to see what else the Tribunal expected the applicant to say”.  However, that is not the relevant question.  The appropriate question, in light of the ground being prosecuted, is whether on what the applicant actually said at the Tribunal hearing, it was reasonably open to the Tribunal to find that his evidence was “vague” and “lacking in detail”.

8. Any plain reading of the transcript reveals that the finding that the evidence was “vague” was reasonably open to the Tribunal.  It is to be remembered that a central part of the applicant’s claims to fear harm was that he feared harm because of his religious beliefs and practices and the resulting imputed political opinion.

9. He claimed that he had faced difficulties for these reasons in his home village, and had been threatened at his home.

10. The part of the transcript of the Tribunal hearing now relied on by the applicant reveals that he was unable, even in a general sense, to recall how many times these “people” came to his house.  Even when prompted, his answers appear to be a guess as to the number of times they came to his house. This is in circumstances where, it must be remembered, that these incidents were the very basis that the applicant said he feared harm and therefore left Bangladesh.

11. Nor, when pressed, was the applicant able to provide details about these incidents.  Instead of providing any details about what happened, the applicant’s non-responsive answer was that he had asked his mother, but she had only told him about one occasion. Presumably, this was the occasion where the applicant claimed that the furniture in the house was “pushed” around.  The Tribunal squarely put to the applicant that his evidence was vague (see T15.14 and [43] below).  That view was reasonably open to the Tribunal, given the state of the applicant’s evidence to it.

12. The rational basis underpinning the Tribunal’s reasoning in this regard can be summarised, and exemplified, by what the Tribunal squarely put to the applicant at the hearing as follows (T15.13):

    “Q122: Okay. But it just seems to me you’re just – you fled Bangladesh in fear of persecution because of these six to seven visits, you just seem vague as to the detail that I might expect if it was true.”

13. Even when this was put to him, the applicant continued to prevaricate with the following non-responsive answer (T15.16):

    “A (INT):   I mean, for the problem I went to Dakha. Yeah, I face problem over there as well and I saw – I mean, I hear the news that everyday people wearing hat – Islamic hat and there are people ….. (0:54:08) they came under attack and they were killed.”

    [Errors in original.]

14. The Tribunal’s reasoning in this regard was not unreasonable.  Why the applicant sought to make such an assertion before the Court, in the circumstances, and in light of the transcript of the Tribunal hearing, was never satisfactorily explained before the Court. The applicant’s ground two is not made out.

15. Ground three of the amended application asserts that the Tribunal failed to comply with s.424A of the Act.

16. The particulars assert that in its decision record, the Tribunal made reference to what had occurred at the applicant’s interview with the delegate. It relied on this “information”, but did not comply with s.424A of the Act in relation to it, nor did it utilise s.424AA of the Act to discharge its obligation in this regard.

17. Before the Court, the applicant identified the relevant “information” as follows.  At the interview with the delegate, the applicant was asked if he had any other problems in Bangladesh apart from his problems with the AL.  At first he replied in the negative.  Further, he had to be prompted by the delegate in relation to his claims involving the threats from his brother-in-law.

18. However, in submissions before the Court, the complaint appeared to centre only on the “negative” answer given by the applicant to the question of whether he had problems in Bangladesh aside from his problems with the AL.  Although I note that the references to the claims regarding the brother-in-law can be understood as being contextual.

19. The applicant’s ground directs attention to the third dot point at [47] (at CB 185 to CB 186):

    “…Also, at the Department interview after describing the difficulties he faced  by members of the Awami League, he was asked apart from those groups whether he faced any trouble from anyone else in Bangladesh and he said no. He only mentioned the difficulties he faced from his brother-in-law when directly asked, then described in detail the dispute with his sister over the dowry and their child and then mentioned that he was targeted by him because of his recent practice of Tabligh and as his brother-in-law is associated with the Awami League. The Tribunal is of the view if the applicant’s brother-in-law had threatened him with death either directly or indirectly as is his claim because of his association with Tabligh or because of the difficulty with his sister or he feared return because of his brother-in-law for any reason that he would have raised that without being prompted. This adds to the finding that the applicant was not targeted in Bangladesh by his brother-in-law or through his family either before or after he left Bangladesh, directly or indirectly. It adds to the finding that he is not credible as to facing the difficulties he claims in Bangladesh and the reasons he departed.”

    [Emphasis added – and see [63] below.]

20. This appeared to be a reference by the Tribunal to part of the delegate’s decision record as follows (CB 118.7):

    “The applicant was asked whether he had other problems apart from the Awami League. He initially responded in the negative. He was then asked about his brother-in-law. The applicant responded that he had problems with his brother-in-law.”

21. The applicant’s argument before the Court was that the applicant’s answer to the delegate’s question as to whether he had had any other difficulties was not an “absence of information”. Rather, it was said to be a “positive response in the negative to a question put to him”.  That is, “no” was a positive answer to the question.

22. The applicant argued that this was relied upon by the Tribunal in finding adversely to the applicant’s credit, and therefore can be said to be a reason, or a part of the reason, for affirming the delegate’s decision.

23. The Minister submitted that the applicant’s argument was similar, if not identical, to what was argued, and rejected by the Full Court, in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90; (2015) 318 ALR 450 (“SZTGV”).  The Minister drew attention to SZTGV at [102] and [103]:

    “[102] It is apparent therefore that the Tribunal’s process of reasoning involved (a) a consideration of what had not been said at the compliance interview; (b) the assertion of a forensic principle that if the applicant’s version were true then he would have mentioned it at that time; and (c) a deduction that because it was not mentioned at that time the account was false. The absence of any reference to the Jat Sikh woman or his bisexuality was to be seen as a matter from which one could reason to the falsity of his account.

    [103] The applicant’s argument was that this matter was ‘information’ which was required to be disclosed to the applicant within the meaning of s 424A. However, for the reasons we have already given, an absence of evidence is not information within s 424A: SZBYR at [18]. It follows that proposed appeal ground one cannot succeed.”

24. The applicant argued that what the Tribunal relied on was not an “absence of information” (“evidence”), but was a positive answer to a question.

25. The applicant also argued that in SZTGV, the applicant in that case initially made no claim to fear harm because he was gay.  The applicant in that case raised it for the first time before the Tribunal.  In these circumstances, the Tribunal (in SZTGV) reasoned that initially (that is, prior to the conduct of the review by the Tribunal), there was an “absence of information” that the applicant claimed to be gay.

26. In short, the applicant argued that the current case was different.  This was not a situation of an “absence of information”, but a “positive response in the negative” to a question posed by the delegate.  That is, the delegate prompted the response to his question.

27. I do not agree with the applicant’s submission.  Neither of the first and second sentences of what appears in the delegate’s decision (as extracted above at [51]), however the applicant seeks to characterise it now, is in its terms, a rejection, denial or undermining of the applicant’s claims to fear harm (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609 (“SZBYR”) at [17]).

28. At its highest, the two sentences are, at best, neutral.  It is difficult to see how the delegate’s question could be said to be an undermining of the applicant’s claims.  Further, the “negative” response from the applicant, even if seen as “positive”, is still neutral.

29. As was explained in SZBYR, this is not “information” for the purposes of s.424A of the Act.

30. The third and fourth sentences as extracted above (at [51]) are also not “information” for the purposes of s.424A of the Act. The third sentence is simply a question from the delegate, similar in character to the first sentence. The fourth sentence, if accepted, would not be a rejection, denial or undermining of the applicant’s claims (SZBYR at [17)]).

31. The applicant’s argument, in great part, confused what was relevantly recorded in the delegate’s decision record, with the Tribunal’s view of what the delegate had reported of his discussion with the applicant at the interview.  The Tribunal’s reasoning was clear.  The applicant only raised the matter of his brother-in-law when prompted by the delegate.  The Tribunal found that if he feared harm from his brother-in-law, he would have raised it without prompting, particularly given that this was one of the three central bases for his claim to fear harm, and as to the reason why he left Bangladesh.

32. Any plain, let alone a fair reading of [47] (at CB 185 to CB 186) reveals that the focus of the Tribunal’s reasoning was its “view” that the applicant had to be prompted to raise the matter involving his brother-in-law. If the applicant’s fear of his brother-in-law was genuine, given the subsequently claimed threat to his life, he would have raised it without prompting.

33. The Tribunal’s “view” of the evidence before it, its subjective appraisal of the evidence, is not “information” for the purposes of s.424A(1) of the Act (SZBYR at [18]).

34. In all, the findings were made in light of the Tribunal’s evaluation of the evidence before it. The Tribunal’s evaluation of the material before it, is not “information” for the purposes of s.424A(1) of the Act. The High Court in SZBYR (at [18]) agreed with what the majority of the Full Federal Court said inVAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549 in that regard.

35. The applicant’s ground three is not made out.

Conclusion

1. Neither of the grounds of the amended application that were pressed before the Court are made out.  The application as amended should be dismissed.  I will make the appropriate order.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 30 August 2018