SZUDH v Minister for Immigration

[2016] FCCA 413

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUDH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 413

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether Tribunal considered a claim made – whether Tribunal breached s.424A of the Migration Act 1958 (Cth) – jurisdictional error found – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 424A, 424AA, 476

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26
SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3

Applicant: SZUDH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 838 of 2014

Judgment of: Judge Nicholls

Hearing date: 19 November 2015

Date of Last Submission: 19 November 2015

Delivered at: Sydney

Delivered on: 4 March 2016

REPRESENTATION

Solicitors for the Applicant: Mr M Jones of Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

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

2. A writ in the nature of certiorari issue quashing the decision of the second respondent made on 27 February 2014.

3. A writ in the nature of mandamus issue compelling the second respondent to reconsider the application according to law.

4. The first respondent to pay the applicant’s costs set in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 838 of 2014

SZUDH

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 28 March 2014 and amended on 5 November 2015, seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 27 February 2014, which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

2. Before the Court in evidence is bundle of relevant documents, filed by the Minister (“Court Book” – “CB”) and the affidavit of Winnie David, transcriptionist, made on 5 November 2015, annexing a copy of the transcript (“T”) of the hearing before the Tribunal, read without objection.

Background

1. The applicant is a citizen of India (CB 5). He arrived in Australia on 24 January 2008 on a student visa. This visa was cancelled in 2009. He applied for a protection visa on 22 October 2012, with the assistance of a registered migration agent (CB 1 to CB 44).

2. In his application, he claimed to fear harm because he was bisexual and “people think [he is] gay” because they had “heard” he was “having sex with men in Australia” (CB 10). He claimed to fear harm for his life, and that society would “throw him out” on return to India. Further, that his family would “force” him to marry a woman on return. He claimed that the authorities would not provide him with protection because of his sexuality (CB 11 to CB 12).

3. The applicant provided a statutory declaration and submissions from his representative to the Minister’s department on 7 March 2013 (CB 76 to CB 246). In his statutory declaration the applicant made further claims about his sexuality, and his sexual experiences with another man that had commenced in India when he was 16 years old ([4] at CB 245). He claimed that when he was 18 years old his family decided to find a girl for him to marry, he was afraid and ran away from home. He then came to Australia to study in Brisbane.

4. The applicant claimed that he started to have sexual relations with men in Australia “after a year” and he started to meet men through a “dating site”. He claimed that he asked one of these men (“Don”), with whom he had spent time over a five month period, to subsequently provide a statement in support of his application. However, Don refused. He also claimed that he found a girl in Australia so that his family would “stop finding girls” for him.

5. The applicant stated that he would not be able to rely on state protection, and that his family would think that he had “ruined their dignity”. He claimed that the Sikh community would kill him, that he would be forced into marriage, and that he could not relocate because he did not “have a good educational” background and would not be able to find employment in India.

6. The applicant attended an interview with the delegate on 11 March 2013 (CB 267). The applicant’s representative provided further documents to the delegate on 19 March 2013, with copies of text messages between the applicant and “Don” (CB 247 to CB 254).

7. The delegate refused the grant of the visa on 1 August 2013 (CB 255 to CB 291). The delegate did not find the applicant to be a “witness of truth”, finding that he had “provided significantly inconsistent and conflicting information in his written application and during the interview” (CB 277). The delegate did not accept that the applicant was homosexual or bisexual, found that he had delayed in making his application for protection, with specific reference to his attempts to have his student visa reinstated, and that in any event there was “adequate” state protection in India.

8. The applicant applied to the Tribunal for review of the delegate’s decision on 22 August 2013 (CB 292 to CB 298). He was again assisted by a registered migration agent (CB 295).

9. The applicant attended a hearing before the Tribunal on 10 December 2013 (CB 314). The applicant’s representative submitted a further statutory declaration on 17 December 2013 from a Mr Richard Thomas Bennett stating that he had “sexual activities” with the applicant (CB 322). The applicant’s representative provided a further statutory declaration from the applicant on 18 December 2013 (CB 325). The representative resubmitted the statutory declaration from Mr Bennett, further written submissions and further documents, including photographs, from the applicant on 20 December 2013 (CB 326 to CB 339).

10. The Tribunal affirmed the decision of the delegate to refuse the grant of a protection visa to the applicant on 27 February 2014 (CB 342 to CB 358).

11. The Tribunal considered the applicant’s migration history in Australia. It summarised the applicant’s application for review of the cancellation of his student visa before the Tribunal in May 2011 ([23] at CB 346), and noted information from the departmental “file note” in relation to his unsuccessful request for Ministerial intervention in March 2011 ([24] at CB 346 to CB 347). The Tribunal found that at no point during the previous review application or other dealings with the department prior to the making of the current application, did he claim to be homosexual or bisexual ([26] at CB 347). The Tribunal found that those claims would have been relevant to both the cancellation of his previous visa, and his application for Ministerial intervention ([26] at CB 347).

12. The Tribunal considered the applicant’s statements before the delegate and also a file note in relation to “a visit by the applicant” to the department on 26 March 2013 (see [30] at CB 350). In relation to this visit, where the file note records that he was “counselled” to talk with his girlfriend about the possibility of applying as a dependent of her student visa, the Tribunal noted that the applicant “confirmed” with him that he had discussed this with a departmental officer but was “a bit feared” of leaving Australia to apply for the visa ([40] at CB 352). It noted that he also confirmed that he had been in a relationship with his girlfriend since 2010, however that his relationship with her was “just ‘casual sex’, as he preferred men” ([42] at CB 352).

13. The Tribunal found that the applicant was “evasive” and “unconvincing”, and that he was not a “reliable or credible witness” ([57] at CB 356). The Tribunal found that his statements about his girlfriend were “inconsistent” (see [58] at CB 356, and [45] below).

14. The Tribunal found that the applicant’s claims to have engaged in homosexual activities and relationships in Australia “may” be true and had occurred at least since November 2013. In this regard it considered the evidence before it in relation to this, including photographs ([62] at CB 356 and [68] – [70] at CB 357). However, it found that he had engaged in these activities to strengthen his claim to protection, and therefore disregarded it pursuant to s.91R(3) of the Act ([64] at CB 357). It confirmed that on the applicant’s own evidence his family and the Indian community in India and Australia did not know of his homosexual activities in Australia ([65] at CB 357).

15. In relation to complementary protection, the Tribunal noted that s.91R(3) of the Act did not apply. It relied on its earlier finding that the applicant would not engage in homosexual activities in India to find that he would not face significant harm on return to India ([65] at CB 357 and [72] at CB 358).

Application Before the Court

1. The application before the Court, as amended on 5 November 2015, contains the following grounds:

   “1. The Tribunal failed to consider whether the Applicant's actions in Australia would bring him within the scope of s36(2)(aa) of the Migration Act.

   Particulars

   The Tribunal considered that the Applicant would not engage in same-sex activity if he returned to India. However, it failed to consider whether the Applicant's activities in Australia might become known in India giving rise to a real risk of serious harm to him.

   2. The Tribunal failed to comply with the requirements of the exhaustive statement of the natural justice hearing rule in Division 4 of Part 7 of the Migration Act 1958.

   Particulars

   The Tribunal's decision to affirm the decision under review was in part based on information concerning comments that the Applicant had made during an interview with the Minister's Department on 26 March 2013 (see para 30 of the Tribunal's decision). That information was not exempt from the operation of s424A of the Act. The Tribunal failed to give the information to the Applicant in the manner required by s424A or 424AA.”

Consideration

1. Ground one asserts that the Tribunal fell into legal error because, in considering the applicant’s claims against the criterion set out at s.36(2)(aa) of the Act, it failed to consider whether the applicant’s homosexual activities in Australia might become known in India and thereby give rise to a real risk of “serious harm”. In context, I understood this to be a reference to “significant” harm.

2. In submissions, the applicant relevantly referred to the following paragraphs of the Tribunal’s decision record ([64] at CB 357 and [70] at CB 357):

   “[64] In the circumstances, it is the view of the Tribunal that while it accepts the applicant's evidence that he has engaged in homosexual acts in Australia, he did so solely for the purpose of strengthening his claim to be a refugee within the meaning of the Convention and must be disregarded in determining whether he has a well-founded fear of being persecuted for one or more of the Convention reasons: s.91R(3) of the Act.

   …

   [70] The Tribunal has accepted, partly on the basis of the statutory declaration from Mr Bennett, that the applicant has engaged in homosexual activities at least since November 2013. In the circumstances, the Tribunal accepts that the photographs provide some support for the applicant's claims that he has engaged in homosexual acts in Australia, however given that the photographs were produced for the purposes of the application on the advice of the applicant's representative, does not consider them to have any other probative value.”

3. The applicant’s ground is based on the proposition that, before the Tribunal, the applicant claimed that he was at risk of significant harm, in particular, A his family or members of the Sikh community would kill him, or force him into marriage with a woman (the applicant’s submission before the Court referred to the Tribunal’s decision record at [44] at CB 352 to CB 353). Further, that Indian friends in Australia knew about his homosexual activities in Australia (the applicant referred to the Tribunal’s decision record at [45] at CB 353).

4. The applicant’s argument before the Court was that a claim had been expressly made that he was at risk of significant harm because of this, and the Tribunal did not deal with it when it came to consider the applicant’s claims as against the complementary protection criteria.

5. The applicant specifically referred the Court to the Tribunal’s consideration of the complementary protection criterion ([71] at CB 357 to [72] at CB 358). The Tribunal’s analysis was that it accepted that the applicant had engaged in homosexual activities in Australia ([71] at CB 357 to CB 358). When it came to consider s.36(2)(aa) of the Act, it found that he could not engage in such activities if he were to return to India and therefore, on that basis, found there were no grounds to believe that there was a real risk he would suffer significant harm.

6. The Tribunal, however, did not consider whether he would face significant harm if the activities in Australia became known to his family and the Sikh community in India. It was this aspect of the applicant’s claim that he now says was not considered by the Tribunal.

7. The applicant relied generally on such authorities as NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, for the proposition that a failure to consider an aspect of his claims reveals jurisdictional error on the part of the Tribunal.

8. As stated above, in his submissions before the Court the applicant referred to what the Tribunal had set out at [45] (at CB 353):

   “After speaking to his representative, the applicant then told the Tribunal that the people in Australia with whom he had bisexual relationships knew he was bisexual. He said that 'Indian friends may have seen me, but no-one has said anything'. He said that his claims in the answers on his application form were 'mistakes'.”

9. His submissions to the Court were that he had told the Tribunal that there were people in Australia who knew that he had engaged in this conduct. However, what appears in the Tribunal’s analysis at [45] (at CB 357) is that there were friends in Australia who may have known about his conduct, not who did know.

10. The Minister submitted that, on a fair reading of the Tribunal’s decision record, the Tribunal’s analysis was that the applicant’s sexual conduct was not known to anyone in India and that there was no basis on the evidence to suggest that anyone would find out. The submission was also that there was no evidence that the applicant’s sexual partners in Australia, whom he said he had met through the internet, would tell anyone in India of the applicant’s activities.

11. It is the case that in considering an applicant’s claim as against the complementary protection criterion, the Tribunal is entitled to rely on findings of fact expressed elsewhere in its decision record (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [32]).

12. However, some care must be taken to disaggregate any such factual findings from findings that arise from, and are influenced by, the consideration relevant to the Refugees Convention. In the current case, as the Tribunal acknowledged, disregarding such conduct pursuant to s.91R(3) of the Act, does not mean it can be similarly disregarded for the purposes of the complementary protection criterion.

13. In the current case, the Tribunal’s analysis of the applicant’s circumstances as against the complementary protection criterion is to be found at [71] (at CB 357) to [72] (at CB 358) (see also in context of [70] at CB 357 at [20] above):

    “Complementary protection

    [71] As noted above, the Tribunal has accepted that the applicant has engaged in homosexual activities at least since November 2013, but that he is not entitled to protection under the Refugees Convention as he did so solely for the purpose of strengthening his claim to be a refugee within the meaning of the Convention. Section 91R of the Act, the application of which is explained above, does not apply however to the complementary protection provisions of the legislation.

    [72] The Tribunal has also found that the applicant would not engage in such activities in India were he to return to that country, and is satisfied that there are no grounds, substantial or otherwise, for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. The Tribunal is satisfied, therefore, that s.36(2)(aa) does not apply.”

14. I agree with the applicant that his claim before the Tribunal was that he feared harm on return to India because he was a homosexual, and that he feared harm from his family and the Sikh community in India.

15. Within this context, amongst other matters, he claimed to have engaged in homosexual conduct in Australia. An element, or integer of his claim, was that he would face harm in India if his family, or the Sikh community in India, found out that he had engaged in this activity in Australia.

16. At its highest, the Minister’s case now is that there was no basis on the evidence presented to say that anyone in India would find out about that activity.

17. There may be some general merit in that argument. However, in my view, it does not answer the specific complaint in the applicant’s ground, and in light of the Tribunal’s analysis. Such an “analysis” now by the Minister may have been available to the Tribunal to have so reasoned. However, it is trite to say that attention must be focused on what the Tribunal has, on a fair reading, actually done, not what it could have done.

18. The Tribunal’s relevant complementary protection analysis (at [70] at CB 357) was that it accepted that the applicant had engaged in homosexual activities in Australia. The applicant was not entitled to protection under the Refugees Convention pursuant to the application of s.91R(3) of the Act. However, s.91R(3) of the Act did not apply to the complementary protection criterion.

19. At [72] (at CB 358) the Tribunal’s analysis was that it relied on an earlier expressed finding that the applicant would not engage in homosexual activities if he were to return to India. The Tribunal then expressed its conclusion that there were no grounds for believing the applicant would face significant harm on return.

20. As set out above, it was, at least, a part of the applicant’s claim to fear significant harm that he feared such harm from his family and the Sikh community if they were to become aware of his homosexual activities in Australia. On a fair reading, I cannot see that the Tribunal addressed this aspect of the applicant’s claim when it considered complementary protection at [71] (at CB 357) to [72] (at CB 358).

21. Nor can I see that it made any reference to this aspect of the applicant’s fear in the earlier part of its analysis that could be said to have been relied upon in the complementary protection analysis.

22. At its highest, the Tribunal stated (at [71] at CB 357) that it accepted “[a]s noted above” that the applicant had engaged in homosexual activities in Australia. However, the disposition of that matter with reference to it statement “[a]s noted above” relied upon the application of s.91R(3) of the Act.

1. The matter of the knowledge in India of the applicant’s activities is dealt with by the Tribunal at [65] (at CB 357). While the Tribunal noted the applicant’s latest evidence there that no one in India, “or in the Indian community in Australia”, was aware of his conduct, that observation of his evidence was plainly made in the context of the Refugees Convention consideration, and in support of its conclusion that this conduct was to be disregarded for the purposes of s.91R(3) of the Act. This does not, therefore, relate to complementary protection.

2. There is nothing at [71] (at CB 357) to [72] (at CB 358) to say the Tribunal considered the matter of what was known, or not known, in India, under the complementary protection criterion, nor can its earlier analysis and findings of facts be seen to be a part of, or can be fairly read to have been imported into, the complementary protection analysis.

3. I agree with the applicant that the Tribunal failed to consider this aspect of his claims as against the complementary protection criterion. Ground one is made out. In the absence of anything to argue against the exercise of the Court’s discretion, this is sufficient to grant the relief the applicant seeks. I will make the appropriate order.

4. Although not necessary, given my finding above, I have set out below my consideration in relation to ground two, which asserts a breach of s.424A of the Act.

5. The applicant’s ground directs attention to the Tribunal’s decision record at the following parts:

   1)At [58] (at CB 356):

   “The Tribunal found his responses to questions about his relationship with the woman with whom he has lived for some three and a half years to be inconsistent. In essence, his evidence about this relationship is that it was one involving 'casual sex' only, yet he said to the Tribunal as he had to the Department that she fully supported him financially for all his day to day living expenses including food and accommodation. Given this, and noting that he confirmed to the Tribunal that he discussed with his case officer at the Department the prospect of being added to her subclass 457 visa as her dependent, the Tribunal is satisfied that he sought to diminish the importance of this relationship in his evidence at the hearing solely for the purpose of enhancing his claimed bisexuality. Undoubtedly, relationships such as that claimed by the applicant exist, however for the reasons explained below the Tribunal considers that the applicant's purpose in engaging in the claimed homosexual activities was to produce evidence to support his protection claims.”

   2)At [30] (at CB 350):

   “The departmental file also contains a note of a visit by the applicant to the Department on 26 March 2013 which reads:

   Client presented to his scheduled appointment. He stated that he is well and his situation has not changed. He keeps communicating with his family back home. Client informed that he had his intrview for his PV application and had provided the supporting documents on his case. He stated that he is optimistic about his case.

   I counselled to be prepared for the next step if his visa is refused, he will need funds to lodge an RRT review if need it. He stated that his girlfriend is working and she and his family would be able to provide financial support. His girlfriend works in Uthopia restaurant in Moorooka. He stated that is quite a busy restaurant.

   He stated that his relationship is strong. I counselled to talk to his partner/ girlfriend to see the possibility to apply for a dependant on her 457 visa as this would be a better option for him as he would be able to work and study. I counselled him that any application he will need to apply from offshore as he is subject to the s48 bar.”

6. The applicant’s argument was as follows. The Tribunal concluded that the applicant was not a truthful witness. What appears at [58] (at CB 356) were the Tribunal’s “observations” about the applicant’s evidence.

7. That part of [58] (at CB 356) was said by the applicant before the Court to “derive” from a file note on the department’s file relating to a “visit” made by the applicant to the department on 26 March 2013 (see [30] at CB 350). This was after he had been interviewed by the delegate, but before the delegate made her decision. This file note is not reproduced in the Court Book and is not in evidence before the Court.

8. The applicant directed attention to the following part of the transcript of the hearing (T15, l.14 to T16, l.10):

   “Q. As well as what we've already discussed that you're telling you have been living with your girlfriend for more than three years. (BACKGROUND INTERPRETER OR SOMETHING) She believes she's in a relationship with you. Your family believes she's in a relationship with you. (BACKGROUND INTERPRETER OR SOMETHING). She talks to your family when they call; she supports you financially; (BACKGROUND INTERPRETER OR SOMETHING) and you've spoken to immigration about the possibility of applying to be a dependent on her 457 visa. (BACKGROUND INTERPRETER OR SOMETHING) Is that right? All of those things are correct? (BACKGROUND INTERPRETER OR SOMETHING)

   A. WITNESS: There are ..(not transcribable)..

   A. INTERPRETER: The case officer was asking me on which visa is your girlfriend, that yeah. When I told him that my girlfriend is on 457 visa, the ..(not transcribable).. told me that, ‘What am I not applying for the partner visa?’ Just out of curiously, I, I've started ..(not transcribable)..the process. And she explained that what is the processes for the visa. Member, I just said, ‘Thank you.’  ..(not transcribable).. and finished the conversation.

   Q. Okay.

   A. INTERPRETER: When I spoke to them ..(not transcribable).. no knowledge because I knew what I had done..(not transcribable)..applied for the - applied my, my file, my ..(not transcribable)..submitted for the bisexual.

   Q. Right, okay. When you were interviewed by the department just a couple of weeks before that, so you were interviewed at immigration about your bridging visa on 26 March, that's when you talked to case officer about the bridging visa. Your protection visa interview was only two weeks before that on 11 March. Is that right?

   A. WITNESS: Yes.

   Q. You also discussed your relationship with your girlfriend with the - during the protection visa interview.

   A. INTERPRETER: At the interview?

   Q. Yes.

   A. INTERPRETER: Yep.

   Q. Yes, okay. And according to - again, according to the case officer's decision record which you've given a copy of to the Tribunal, okay? She says you added - you told her that you'd been financially supported by your girlfriend during the last three years. She asked you how you were occupying yourself during the day and you said you were ‘Just sitting at home thinking about how to get a visa.’ You then told her that you'd met your girlfriend in February 2010 and that you'd been in an ongoing relationship including a sexual relationship since July 2010. Now is all of that correct?

   A. INTERPRETER: I'm just agreeing with casual sex with her, but my affection is more towards men, than her.”

9. The applicant’s submission was that some of this information appeared in the delegate’s decision record. However, the matter of his being included in the visa application of a woman with whom he had lived, as her dependent, did not appear in the delegate’s decision record.

10. In all, therefore, the applicant’s ground asserts legal error because the Tribunal relied on certain information that it considered would be a part of the reason for affirming the delegate’s decision and thereby enlivened the obligation in s.424A(1) of the Act. That information did not fall within any of the exceptions set out in s.424A(3) of the Act. Nor did the Tribunal properly employ the mechanism available to it pursuant to s.424AA of the Act to discharge its obligation under s.424A(1) of the Act.

11. The Minister’s response was that the relevant information was that the applicant discussed with the departmental case officer the prospect of being added to the woman’s (said to be his “girlfriend”) 457 visa application.

12. The Minister directed attention to a part of the transcript of the Tribunal hearing preceding that part relied on by the applicant (above at [48]) (T14, l.34 – T15, l.13):

    “Q. And you spoke to the case officer there about being added to your girlfriend's 457 visa as her partner. That's what the immigration case notes say, do you remember that?

    A. INTERPRETER: The 457 about me, yes, Mr Member.

    Q. So your girlfriend is on a 457 visa.

    A. INTERPRETER: Yes, Mr Member.

    Q. So you talked to the case officer about whether you could be added to that visa as a dependent.

    A. INTERPRETER: Actually I just normally speak with the officer because the officer told me, first of all, that this is - he had - the officer told me that she said ‘What is your girlfriend doing now?’ I told her that my girlfriend on a 457 visa; after that she said, ‘So why you don't apply for the, for the, for the partner visa?’ So that's why I just ask her frankly, ‘Like normally what is the, what is the process for that?’ I told her I, ‘I don't need to go back India.’ So it's - that's the main point, because after that she - then she said, ‘You have to go back India, then apply for a, for that visa, so that's why I'm a bit feared (as said) to go back India.

    Q. [Mr Applicant], it seems to me that you're asking me to believe the story that you're telling to me and to accept you as a credible person when you're telling me that you're quite prepared to continue to mislead all these other people in your life; that you're prepared to, if necessary, to make another application to immigration on the basis of a relationship with this girlfriend that you've been living with for three years, and that you depend upon, so you're telling me that in all of those other areas you will say whatever you need to say to advance your case, but on the other hand you're saying to me that I should accept your evidence about your homosexuality. Okay? You can understand why I have difficulty with that, I presume. Can you understand that?

    A. INTERPRETER: I do ..(not transcribable)..”

13. The Minister relied on the Full Court judgment in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 (“SZTGV”), particularly at [20] – [24] for the proposition that information can be given to the Tribunal by an applicant for the purposes of the review and thereby fall within the exception in s.424A(3)(b) of the Act, in circumstances where (SZTGV at [24]):

    “It is apparent from the various approaches taken to s 424A(3)(b) that the question is ultimately one of fact. Consistent with the reasoning of Heerey J in VWBF and SZCJD, there is nothing in the text of s 424A(3)(b) which supports any distinction between information proffered by an applicant to the Tribunal of the applicant’s own volition or elicited from an applicant by the answering of the Tribunal’s questions. In either case, the applicant may have given information to the Tribunal. Despite this, not every answer by an applicant to a question from the Tribunal will involve the applicant giving information to the Tribunal. The nature of the information, of the question asked by the Tribunal and the applicant’s answer will all be relevant to determining whether s 424A(3)(b) is engaged.”

14. I agree with the Minister that in the current case the information in question is that the applicant discussed with his case officer at the Minister’s department the prospect of being added to a woman’s, who he described as his girlfriend, 457 visa application as her dependent. Plainly, that is what the Tribunal stated at [58] of its decision record (at CB 356). The applicant did not satisfactorily establish that there was any other information in this context that it could be said was considered by the Tribunal it to be a part of the reason for affirming the delegate’s decision.

15. The applicant did not satisfactorily distinguish the current circumstances from what was in SZTGV. On this basis, I apply what was held there to this ground. Ground two is, therefore, not made out.

Conclusion

1. In any event, what is set out above in relation to ground one is sufficient to justify the granting of the relief the applicant seeks. There is no reason not to make the orders sought by him. I will make the orders accordingly.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 4 March 2016