SZVRS v Minister for Immigration

[2016] FCCA 1392

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVRS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1392

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether inconsistencies in the applicant’s evidence constituted a rejection, denial or undermining of the applicant’s claims – whether the Tribunal failed to comply with obligations under the Migration Act 1958 – whether the Tribunal failed to comply with the statutory scheme – whether the Tribunal misapplied the relevant legislation – real chance test – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2A), 424A, 424AA, 425, 476

Cases cited:
SZBYR & Anor v Minister for Immigration & Citizenship & Anor (2007) 235 ALR 609

SZSOG v Minister for Immigration & Border Protection [2014] FCA 1053

Applicant: SZVRS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3208 of 2014

Judgment of: Judge Street

Hearing date: 8 June 2016

Date of Last Submission: 12 July 2016

Delivered at: Sydney

Delivered on: 21 July 2016

REPRESENTATION

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

Solicitors for the First Respondent: Mr L Leerdam
DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $8,000.00.

3. Pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001, the name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3208 of 2014

SZVRS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of the decision of the Tribunal made on 23 October 2014 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country.  The applicant first arrived in Australia on 22 June 2012 on a work and holiday visa which was valid until 22 June 2013.  The applicant departed Australia on 18 April 2013 and arrived again in Australia on 12 May 2013.  The applicant applied for protection on 20 June 2013.

3. The applicant claimed to fear harm in Bangladesh from fanatical Muslims, including members of the Jamaat-e-Islami, Hefazat-e-Islam and the BNP due to his Hindu religion.  The applicant claimed that his family had been the subject of oppression by the mainstream community in Bangladesh for reasons of their Hindu religion.  The applicant also claimed that he was involved in promoting Hindu religion in his roles as publication secretary of the Sanatan Sango as well as being the joint secretary of the Hindu Buddhist Christian Unity Council.

4. The delegate found that he was satisfied that the authorities generally provide effective protection from Islamists and made reference to the applicant’s claim that when he returned to Bangladesh in April and May 2013 he was slapped and his Hindu temple was attacked. The delegate also referred to the applicant’s assertion that his last altercation with Islamists was in 2011 when they pushed him and threatened him while he was celebrating their religious festival. The delegate found that the applicant had not been systematically targeted by Islamists because of his adherence to the Hindu faith.

5. The delegate found that the applicant did not hold a significant religious profile in the Hindu community which would cause him to be singled out for individual attention. The Tribunal noted that the applicant’s work with the Hindu organisations occurred whilst he was at university.  It was in those circumstances, given the applicant’s profile, that the delegate did not accept that the applicant would attract individual attention from those Islamic organisations that he claimed to fear.

6. The Tribunal made reference to the applicant’s migration history and his delay in applying for protection. The delegate said that he considered that if the applicant was genuinely concerned for his safety and had experienced serious harm in Bangladesh, the applicant would have sought protection much sooner than he did. The delegate identified that he had the overall impression that the applicant wished to remain in Australia for economic reasons.

7. It was in those circumstances that the delegate found that whilst he accepted that there was religious discrimination in Bangladesh, he was not satisfied that the applicant faces a real chance of serious harm for reasons of his Hindu faith. The delegate found the applicant could return to Bangladesh where he would not face a real chance of being persecuted from Islamists for reason of his Hindu religion. The delegate was not satisfied that the applicant had a real chance of being persecuted for a refugee’s Convention reason and the delegate found that the applicant did not have a well-founded fear. The delegate also found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country, there was a real risk the non-citizen would be subjected to significant harm.

8. The applicant applied for review on 16 December 2013. By letter dated 25 August 2014, the applicant was invited to attend a hearing to take place on 9 October 2014 before the Tribunal. The applicant appeared on that date to give evidence and present arguments and was assisted at the hearing by an interpreter as well as being represented by his registered migration agent. Shortly before the hearing on 2 October 2014, the applicant’s legal representative provided a statutory declaration from the applicant and further photographic information.

9. The statutory declaration expanded upon the applicant’s activities in seeking to promote Hinduism and his organisation roles. The applicant maintained that he faced intimidation and harassment due to his activities with the religion and with the Hindu community through the organisations with which he was involved. The applicant expanded on the incident that occurred on 27 May 2013 when he was in the temple and his village was attacked by Islamic extremists. The applicant also asserted that he would continue his involvement in promoting the Hindu religion if he returned to Bangladesh and feared that he would not be able to obtain State protection.

10. By letter dated 1 October 2014, detailed submissions and country information were provided by the applicant’s registered migration agent. The letter summarising that information was 80 pages long, with detailed extracts of references to the country information concerning the growth of Islamic fundamentalism in Bangladesh, reports on persecution against religious minorities, particularly against Hindus, reports and statements on the volatile situation reported in independent sources as well as relevant country information in relation to persecution against Hindus in Bangladesh. The letter detailed the rising Islamic fundamentalism in Bangladesh and addressed persecution on the basis of religion in relation to the applicant’s actual and attributed religious belief, political opinion persecution and persecution for reasons of being a particular social group. The letter also addressed the issue of the real chance test of persecution as well as the meaning of serious harm and the evidentiary approach to the assessment of the applicant’s claims, the meaning of systematic discriminatory conduct and the meaning of well-founded fear.

11. These submissions also addressed State protection and why the applicant would not be able to obtain State protection. The submissions addressed whether Bangladesh had taken reasonable measures in the protection of its citizens, which include an appropriate criminal law and the provision of a reasonably effective and impartial police force and justice system.

12. The submissions also addressed the issues concerning internal relocation and the reasonableness analysis required in that regard. The submissions further addressed recent decisions, including RRT decisions, on violations against religious minorities in Bangladesh.  The submissions then addressed the issue of complementary protection and developed detailed reasons as to why it was alleged the applicant would face real and foreseeable personal risk of torture in Bangladesh for Convention reasons and further addressed claiming complementary protection under ICCPR.

13. It was submitted that the applicant should not be sent back to a country that had failed to ratify the Optional Protocol 1 of the ICCPR. It was submitted that Hindus face serious harm in Bangladesh and are entitled to complementary protection. It was submitted that the applicant was a Hindu with a specific profile. It was submitted that the applicant’s feared persecutors considered the applicant as an enemy due to the applicant’s religion and imputed political opinion, as summarised in those submissions.

14. On 7 October 2014, further material was submitted to the Tribunal by the applicant’s representatives. The material referred to in the submissions was identified by the Tribunal at para.22. The Tribunal made reference to the applicant’s claims and evidence and, in particular, his claimed harm in 2011 when the Gobinath temple in his district and the temple in his village were attacked and he organised a demonstration to protest against it.

15. The Tribunal expressed concerns in relation to the applicant’s credibility but referred to some circumstances that the applicant had advanced which were consistent over time and which the Tribunal was satisfied as true. The Tribunal specifically accepted the applicant’s pursuit of the Hindu religion by both him and his family and his attendance at university. However, the Tribunal found the applicant was not a credible witness and did not accept that the applicant had suffered the harm in his country that he claims for the reasons that he claims.

16. The Tribunal found the applicant’s testimony inconsistent and implausible amounting to a fabrication for reasons that the Tribunal developed.  The Tribunal found the applicant was not a witness of truth and was not targeted in Bangladesh in the manner he claimed or that the applicant faced the difficulties he claims or held the profile the applicant claims for the reasons he claims.

17. The Tribunal raised with the applicant specifically the alleged harm that he alleged he suffered on return to Bangladesh in 2013 and the inconsistent evidence given in that regard. Further, the Tribunal raised with the applicant information in accordance with s.424AA of the Migration Act 1958 and consistent with the applicant’s alleged events and that that may lead the Tribunal to find the applicant was not a credible witness.  It was in those circumstances the Tribunal did not accept the applicant as credible in his claims about the attack on his village in 2013.

18. The Tribunal also dealt with at length the 2011 incident raised by the applicant. The Tribunal raised with the applicant the inconsistent account that he had given to the department at the time of his first interview with the department as to what happened in 2011. The Tribunal raised with the applicant the inconsistency as to what he had said happened and the context in which the applicant alleged that he was pushed.  The Tribunal referred to the inconsistencies and identified that this may lead the Tribunal to find that the applicant was not a credible witness and that the Tribunal may not accept that the 2011 event happened and may not accept the applicant as a witness of truth.

19. The Tribunal referred to the fact that if the event in 2011 happened the Tribunal would have expected the applicant’s evidence to be consistent as to the details of the event between the time of the department’s interview and the giving of evidence before the Tribunal as to whether he was handing out pamphlets for the upcoming festival or actually at the festival at the time of the attack and whether he was slapped or pushed in the series of events and whether he was threatened through his father or directly.

20. The Tribunal also referred to the fact that the 2011 incident was not the subject of any expansion in the detailed statement dated 1 October 2014. The Tribunal found the inconsistencies led the Tribunal to find the applicant was not a credible witness as to his evidence that he was attacked or faced the difficulty claims in 2011. That finding further impacted on the Tribunal’s finding that he was not a credible witness.

21. The Tribunal made further reference to the applicant’s evidence as to what he did after the alleged attack in 2011 and the inconsistencies in his evidence in that regard. It was in those circumstances the Tribunal found the applicant was not credible as to his claims of facing difficulty in 2011 as described either in the first interview or to the Tribunal and did not accept that the applicant was attacked, pushed, slapped or threatened, directly or indirectly, or had to go to a particular location to keep safe.

22. The Tribunal referred to further inconsistencies in the applicant’s evidence about inconsistencies in respect of his practice of Hinduism in Australia, as well as inconsistencies in respect of his actual involvement in organisations, as well as inconsistencies in the activities at the times that he claims involvement in a particular demonstration. The Tribunal found inconsistencies between the information provided in the applicant’s statutory declaration of October 2014 and what he had earlier told the Tribunal in relation to the incident in 2011 and 2013, as well as inconsistencies in relation to his profile.

23. It was in those circumstances that the Tribunal found that the applicant was not a credible, truthful or reliable witness.  The Tribunal was of the view that the applicant had fabricated his claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns, the Tribunal did not accept the applicant as a credible witness and was not satisfied on the evidence before it that the applicant was a truthful witness in relation to his claims.

24. It was in those circumstances that the Tribunal panel was not satisfied the applicant faced a real chance of persecution involving serious harm were he to return to Bangladesh in the reasonably foreseeable future. The Tribunal panel was not satisfied that the applicant had a well-founded fear of persecution for one or more of the Convention reasons. The Tribunal turned to the issue of complementary protection and found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there was a real risk he would suffer significant harm as defined in s.36(2A) of the Migration Act 1958.

25. It was in those circumstances that the Tribunal found that the applicant did not satisfy the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate.

26. The grounds of the application are as follows:

    1. The Tribunal failed to comply with the requirements of section 424A or 424AA of the Migration Act 1958 in conducting its review of the case.

    Particulars

    The Tribunal’s decision was based wholly or in part on information which the Applicant had provided to the Minister’s delegate orally. That information was not exempt from the requirements of s424A but the Tribunal failed to comply with either s424A or 424AA in respect of that information.

27. The transcript was tendered and Mr Jones, the solicitor for the applicant, referred to the credibility findings by the Tribunal and, in particular, the reference to the delegate’s decision which only reports the applicant claiming that he was slapped when he returned to Bangladesh in April and May 2013. Mr Jones referred to the Tribunal’s reasons in para.45 where the Tribunal identified the inconsistency in relation to the applicant’s evidence at the hearing that he had no aunts or uncles, which was inconsistent with the assertion that he fled violence and stayed at his aunt’s place.

28. The submissions advanced that the only source of the information that the applicant had fled to his aunt’s house was the delegate’s information and asserted that although the Tribunal referred to both pieces of information in passing in the transcript, it was submitted that he did not include them in the notification given in relation to s.424AA. It was submitted that the applicant was not given an opportunity to request further time to respond as required under s.424AA(1)(b)(iii) to (iv).

29. The submissions of Mr Jones also referred to the 2011 incident and the reasoning of the Tribunal at paras.47 to 49. I note that the information relied upon by the Tribunal for the inconsistencies in relation to the 2011 incident was again provided at the interview. Mr Jones submitted that although the incidents were referred to by the Tribunal at the hearing, they were not included in the notification given in relation to s.424AA. It was further submitted the Tribunal did not give the applicant an opportunity to request further time for response as required under s.424AA(1)(b)(iii) to (iv).

30. The submissions advanced that the Tribunal clearly considered the pieces of information to have undermined the applicant’s claims to be a person to whom Australia owed protection obligations and that it was, therefore, information of a kind falling within s.424A. The submissions advanced that by failing to comply with the provisions of the Act, the Tribunal had constructively failed to exercise its jurisdiction.

31. The Tribunal raised, in the course of its hearing, its credibility concerns with the applicant and at page 40 in the transcript commenced to raise concerns in relation to the applicant’s claims starting with the recent attacks in 2013 as well as the inconsistent information in relation to the death of a particular person as opposed to the protests asserted by the applicant and provided the applicant with an opportunity to respond and explained the significance of the inconsistency and also raised the 2011 incident and the inconsistencies at page 43 relevantly as follows:

    Q. I also want to talk to you about the incident you claimed happened in 2011. Your account that you've given today seems to differ from the account given at the department interview. I note you didn't refer to difficulties faced in 2011 in your statement. I'll just go through. You said in the department interview – you said today that in 2011 the incident took place when you were distributing the leaflets and people came and took the pamphlets and they threw them out. You say they were pamphlets for the organisation Sanatan Sangha promoting Hindu organisations.

    You said then you informed the organisation Sanatan Sangha who said they would talk to the people and then the people came to the shop and they threatened you through your son. They threatened you through your father. You said they didn't threaten you directly but they slapped you when they were handing out the pamphlets. Then you said after that your father told you to keep safe and the police did nothing.

    A. WITNESS: I have one question. That time they go to my father and threaten my father.

    INTERPRETER: They went to father and threaten to my father about me that they would see me.

    Q. You think if that had happened that you would have outlined it in your statement attached to your protection visa.

    INTERPRETER: Sorry?

    Q. You think if that had happened, a threat to your life you would have claimed it in your statement. Just let me finish. You didn't also refer to it in your recent statement either. Let me read what you said. You said, “It happened in January 2011. We celebrated our religious festival and me and my father play a leading role. On that festival some people that went there and they wanted to stop us continuing with the festival. After three or four days they went to the shop and asked why we reported it to the police as we had and they threatened my father. The very same day they threatened me verbally that they will not allow me to live. Did they physically harm you? Yes, they pushed me and after that event my father did not feel it was safe for me and would not allow me to live in the village so I left for Chittagong”. The different versions may lead me to find you're not credible as to these claims. What do you say?

    A. INTERPRETER: But I say the truth.

    Q. You also said in your department interview that you weren't harmed from January 2011 to June 2012 and that's because you were not allowed to go back to the village. The man said, “So you were not harmed? No, because I did not go back to the village”. You said in the department interview that after the event in January 2011 your father would not allow you to go back to the village and you did not go back to the village and that is why you were not harmed. That's inconsistent with what you've said today and we went over it quite in detail. You said you went back and forth, had 15 to 20 days and then you went back and forth and you also said to me at the beginning of the hearing that you lived in your village until you left for Australia in June 2012. Anything you want to say?

    A. INTERPRETER: I didn't live at home continuously.

    Q. You didn't talk about before informing the organisation Sanatan Sangha about the event - Sanatan Sangha about the 2011 event.

    A. INTERPRETER: He didn't report?

    Q. No.

    A. INTERPRETER: I didn't understand.

    Q. You said today that in the event of 2011, once they took the pamphlets you went and spoke to Sanatan Sangha and they said we'll go and talk to them, but it's not what you said before. You said today that you were public officer of Sanatan Sangha until you left in June 2012.

    A. INTERPRETER: Sorry?

    Q. You were publications officer at Sanatan Shangha from 2009 until you came to Australia in 2011. I question whether this is true because you said in your recent statement that in June 2011 you were promoted to joint secretary.

    A. INTERPRETER: Hindu (indistinct).

    Q. What are you saying, it was in the-

    A. WITNESS: Hindu council--

    A. INTERPRETER: Not in Sanatan Sangha but the Unity Council.

    Q. But that's not what your recent statement says. You also said - I asked you today what you did and you said in your statement that with Sanatan Sangha it was religious, yet you said in your recent statement that you also highlighted the incidents against Hindu's in Bangladesh which you didn't say today.

    A. INTERPRETER: He didn't say before?

    Q. Didn't say today.

    A. INTERPRETER: We used to make (indistinct), distribute leaflet and they used to come.

    Q. You also were asked at the department interview as to your involvement in these organisations. You said at the department interview that you were joint secretary of the Unity and you acquired that in July 2009 and you last acted in that position in December 2010. You were asked the following, “After December 2010 did you have any involvement with the Unity Group or Sanatan Sangha? Yes, my name is still there”. Then he said, “In practical terms did you have any further participation with the group”. You said you last acted in the position as joint secretary in December 2010 and after that was there any involvement in either group? “In practical terms” - I'm reading from the department interview.

    “In practical terms did you have any further participation with the group Sanatan Sangha”? You said you last acted in the position as joint secretary in December 2010. “After that did you have any involvement with either of the two groups? My name was there but I was away, I was in Chittagong”. So you were saying that you hadn't had any practical involvement after December 2010, because you claimed in the department interview you had to leave and live in Chittagong from January 2011. Yep go on?

    A. INTERPRETER: The incident took place in 2009, 10, 11 but after the incident of 2011 I stayed in Chittagong.

    Q. After the incident of 2011 you stayed in Chittagong?

    A. INTERPRETER: Sorry, sorry, I made a mistake. I - I travelled between Chittagong and home.

    Q. The other thing is it seems to me you've exaggerated or you're not credible - I'm suggesting to you you're not credible as to this wide ranging involvement as a Hindu supporter and activist. I raise with you my credibility concerns and I also expect that if you feared return because you were preventing Hindu's from converting to Islam through your religious work and that's one of your main fears that you would have raised it in your initial statement.

    A. INTERPRETER: My initial statements are made by myself.

    Q. Well yes, you're the one fearing return. You'd know why you were fearing return. You were also asked at the department interview as to the 2013 events why you were threatened and pushed and slapped. Sorry let me repeat that. You were also asked in the department interview why you'd been threatened, pushed and slapped over the preceding years, in 2013 and 2011. You said that because you were Hindu and because of the assets you had, such as land and property.

    A. INTERPRETER: Because of?

    Q. Assets, land and property. I may expect that if you feared return because of involvement in the organisations and because they thought you were stopping people converting through your religious work you would have said it then. You've added all these claims in your recent stat. dec., in your recent evidence but particularly as to what happened in 2011 and when the Gopinath Temple was attacked and you were one of the persons who helped organise the demonstration, but none of this was mentioned in your statement, initial statement.

    A. INTERPRETER: At that time I couldn't try I had done in an organised way.

    Q. Sorry?

    A. INTERPRETER: I couldn't try them in an organised way.

    Q. You arrived in June 2012, you went back to Bangladesh in 2013, so why did it take you over a year to apply for protection if you fled in fear in June 2012?

    A. INTERPRETER: I was looking for regular (indistinct) but I couldn't manage and by myself I was collecting that information from the internet and that's why it took some - took me time.

    Q. I suggest to you that if you left Bangladesh in fear in 2012 you'd apply sooner than you did?

    A. INTERPRETER: I went back in 2013 with - I had the understanding that I'll be staying there (indistinct) doing but what happened on the 27th that led me to come back.

    Q. I've also got issues as to whether you are as actively concerned or involved in the Hindu cause in Bangladesh as you claim or the organisations as you claim. I asked you about whether you were aware of any of the attacks prior to when you went back in 2013 and you didn't talk to me about what happened in March 2013, which is one of the biggest events to happen to Hindus for some years.

    A. INTERPRETER: Sorry?

    Q. All right, so I asked you were you aware of riots or attacks by Jamaat-e-lslami on a grand scale before you went back in 2013 and you weren't. You just said there were random incidents. Whereas as I've pointed out to you after Delwar Hossain was sentenced to death there was an outpouring by Jamaat-e-lslami against Hindus over that period. I expect if you were concerned or involved you'd know about that.

    A. INTERPRETER: I can't stay anymore.

    Q. All right, I'm finished . I've got one last. You said that you became joint secretary of the Unity Council in the beginning of 2011 although you've said previously that was December 2011.

    A. INTERPRETER: Became first involved?

    Q. No, the Unity - yes.

    A. INTERPRETER: I became joint secretary in 2011.

    Q. What happens now is that - would you like time to comment or we can get an interpreter on the phone or I can give you time to respond in writing?

    WITNESS: Writing.

    Q. You're going to put it in writing .

    WITNESS: But there is some--

    Q. Yes, I've got that information. Basically what I'm saying to you is that I accept you're a Hindu and Hindus face discrimination, but I have difficulty accepting for the reasons that you are as high profile or involved in the organisations or involved in religious issues as you claim.

    A. INTERPRETER: When I joined this organisations then I started do activities.

    Q. They are my issues. I've put to you my issues. I have difficulty accepting the credibility of what's happened to you, although I accept you're Hindu. Lastly your father remained - I mean even if I were to accept you were involved in the local temple, your father continues to live in the same home he's lived for many years, continues to work in the village and hasn't faced the difficulties.

    A. INTERPRETER: My father is just engaged in business and main activities are being done by me. The type of religious activities that is being observed in our home is done by my father and it is understood that after my father I take these activities. My father is not that much educated to have the type of activities I am having as an educated man.

    Q. Is there anything more you want to say or you're happy to put it in writing?

    A. INTERPRETER: In writing.

    Q. How long do you want?

    A. WITNESS: Twentieth of October - on Monday.

    Q. Yes sure, close of business 20 October. Thank you interpreter you can go I think they can hear. Don't give me more country information.

    A. REPRESENTATIVE: I know Madam but I think one of the issues that's not raised there, that is about his political opinions--

    Q. But that's because he's hindered--

    A. REPRESENTATIVE: Into the political (indistinct).

    Q. That's as a result of his Hindu activism?

    A. REPRESENTATIVE: Yes and his persecutors from their perspective his opinions against Jamaat and the other (indistinct) that's one of the issue I think need to be--

    Q. But I think that's related more to whether I accept he's as active as he is, is it not? It's not just by being a Hindu, is that what you're saying?

    A. REPRESENTATIVE: Both I think because as - because one of the – you know why--

    Q. Can you understand what we're saying?

    WITNESS: Yeah.

    Q . All right, if you don't - yep.

    A. REPRESENTATIVE: Why Jamaat and you know supporters who have been in the attack are Hindus is - they think that they are - that they support (indistinct) some kind of I mean--

    Q. Supports of Awami.

    A. REPRESENTATIVE: (Indistinct), so that's important political opinion and his - I mean with his activities and apart from that as having their own temple I think he has provided this - that photo of--

    Q. But I think that would fall within Hindus generally and then it comes down to whether I accept whether he's as active as he claims to be. I mean whatever the motivation of Jamaat-e-lslami, I'm not sure the information indicates – got to look more whether Hindus generally face serious or significant harm, a real chance or real risk of serious or significant harm for a political opinion or because of their religion or for anything related to the Hinduism.

    A. REPRESENTATIVE: Yes, that's true but in his case the adverse profile of you know the aggravated fear he will face is because they're having their own temple, that is one of the - and also he is the only son of that family which involved in Hindu activities. And having a temple--

1. The Court raised with counsel for the first respondent the observation made by the Tribunal, “Don’t give me more country information,” at the end of the purported compliance with s.424AA and whether this goes either to an issue of non-compliance with s.424AA or an issue in relation to s.425 of the Migration Act 1958 and whether the applicant had a genuine hearing.

2. Section 424A provides as follows:

   Information and invitation given in writing by Tribunal

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

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

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

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

   (2)  The information and invitation must be given to the applicant:

   (a)  except where paragraph (b) applies--by one of the methods specified in section 441A; or

   (b)  if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

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

   (3)  This section does not apply to information:

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

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

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

   (c)  that is non-disclosable information.

   (4)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

3. Section 424AA provides as follows:

   Information and invitation given orally by Tribunal while applicant appearing

   (1)  If an applicant is appearing before the Tribunal because of an invitation under section 425:

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

   (b)  if the Tribunal does so--the Tribunal must:

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

   (ii)  orally invite the applicant to comment on or respond to the information; and

   (iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)  if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   (2)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

4. Section 425 provides as follows:

   Tribunal must invite applicant to appear

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)  Subsection (1) does not apply if:

   (a)  the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

   (b)  the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)  subsection 424C(1) or (2) applies to the applicant.

   (3)  If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

5. As a result of the Court raising its concern in respect of the statement that appears in the transcript by the Tribunal member, the Court made further directions and received further written submissions from the parties. The first respondent submitted that the information identified by the applicant was information going to the assessment of the applicant’s credibility and it was not information that enlivened any obligation under s.424A of the Act.

6. The respondent submitted that the information, being the applicant’s evidence that he was slapped, did not independently and of itself undermine, deny or reject the applicant’s refugee claims. The respondent submitted that it was apparent that the focus of the Tribunal’s reasons was on the inconsistencies between the applicant’s evidence and previous information provided at the oral interview and the inconsistencies with his statement.

7. The first respondent submitted that it was open to the Tribunal as a matter of credibility to view the applicant’s evidence provided at the oral interview as significantly different from the evidence provided at the hearing that he was beaten by a stick on his back two or three times.  The Tribunal went on to rely upon that inconsistency in relation to making adverse findings in respect of the credibility of the applicant.

8. The first respondent also submitted that the alleged information in relation to the inconsistency concerning the applicant staying at his aunt’s place and the evidence given to the Tribunal that he had no aunts or uncles, again was a matter going to the credibility of the applicant and did not enliven any obligation under s.424AA.

9. The first respondent also referred to the applicant’s evidence concerning him not returning to his village after the event in January 2011 which it submitted did not independently and of itself undermine, deny or reject the applicant’s refugee claims.  The first respondent submitted that the inconsistencies between the applicant’s oral evidence to the delegate and the evidence at the hearing in relation to what the applicant claimed occurred following the incident in 2011 was what the Tribunal relied upon in making the credibility findings.

10. Accordingly, the first respondents maintained there was no information enlivening any obligation under s.424A.

11. In the supplementary submissions advanced by the first respondent, the first respondent further developed the reasons why it was significant that the information identified by the solicitor for the applicant did not enliven any obligation under s.424A. The first respondent submitted that SZBYR & Anor v Minister for Immigration & Citizenship & Anor (2007) 235 ALR 609 established that the distinction between two types of material for the purpose of the concept of information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review in s.424A of the Act.

12. The two different types of material advanced refers to claims material that directly and in its terms constitute or contains a rejection, denial or undermining of the applicant’s claims to meet the relevant visa criteria and, secondly, creditability material to which it was submitted the obligations under s.424A do not apply where that material would not, if believed, directly and in its terms contain a rejection, denial or undermining of the applicant’s claims to meet the relevant visa criteria. It was submitted that the information instead only harms the applicant’s case because of doubts and inconsistencies with other evidence or the absence of evidence.

13. The first respondent drew attention to the foundation for the making of this distinction in SZBRY supra at [17], relevantly: 

    The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of section 424A(1)(a) is to be determined in advance - and independently - of the Tribunal’s particular reasoning on the facts of the case.

14. The first respondent submitted that the result of what was said by the High Court of Australia meant that the evidence in question to enliven an obligation under s.424A must be information that would be, in the Tribunal’s view, information that would to undermine a claim or claims for protection such that it would become a reason for affirming the decision under review. It was submitted conversely that if the evidence in question merely produced inconsistencies or a doubt which may or could result in the applicant being disbelieved, those doubts or inconsistencies did not enliven any obligation under s.424A, because otherwise, if they did, s.424A “would, in effect, oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process”.

15. Reference was also made by the first respondent to what was said in SZSOG v Minister for Immigration & Border Protection [2014] FCA 1053 at 29 as follows:

    [29] It was open to the Tribunal to accept or not accept both accounts. It chose to evaluate the evidence of each spouse on the issue based on the fact that their accounts were not consistent. When it came to evaluate whether it would accept the evidence of each spouse, it considered whether there were inconsistencies or gaps between their various accounts for the purpose of deciding whether, and to what extent, it could accept the respective account. The lack of consistency between the accounts did not entail that, on the present facts, either account contained a rejection, denial or undermining of the other. The Tribunal could have found that the accounts either were sufficiently consistent or corroborative or, as it did, lacked consistency or corroboration of each other. But, that conclusion was an evaluation by the Tribunal of the effect of the evidence of two witnesses that, in itself, was neutral as to the veracity or reliability of the other spouse’s evidence. Neither spouse had said that the subject matter of the evidence of the other had not occurred so as to deny or reject or undermine the other’s account.

16. The first respondent noted that the Tribunal relied on the fact that the applicant had provided inconsistent evidence as to whether he was handing out pamphlets for an upcoming festival or at the festival when the incident in 2011 occurred, whether he was slapped or pushed in this series of events and whether he was threatened through his father or directly. 

17. I accept the first respondent’s submission that the Tribunal considered that the evidence provided by the applicant to the delegate orally at the interview went to the applicant’s credibility because of the inconsistency with the evidence provided at the hearing, given the Tribunal using information in this way is not evidence that supports the information enlivening an obligation under s.424A. Further, I accept that to the extent that the Tribunal purported to embark upon complying with s.424AA, that does not determine whether the information is, in fact, of a kind that enlivens the obligation.

18. I accept the first respondent’s submissions that the information identified as provided by the applicant to the delegate was not information in its terms that constituted or contained a rejection, denial or undermining of the applicant’s claims to meet the various criteria. I accept the first respondent’s submission that no obligation under s.424A was enlivened in relation to the information relied upon by the solicitor for the applicant.

19. In these circumstances, there was no breach of the requirements of s.424A and no jurisdictional error for the claim alleged in ground 1 of the application.

20. It was further submitted by the first respondent that even if an obligation under s.424A was engaged, the transcript supports compliance with s.424AA by the Tribunal. The concern that the Court raised in that regard was whether the reference to “don’t give me more country information” should be taken to be a retraction of the purported compliance with s.424AA(1)(b). It is of relevance that at this hearing the applicant was represented. It is also of relevance that the statement made in the present case in relation to “don’t give me more country information” was after the provision of an opportunity being given to the applicant to respond in writing on or before 20 October 2014. It is also relevant in the context of this case that the observation was made in circumstances where very lengthy country information had been provided in submissions by the legal representative on behalf of the applicant.

21. There was no complaint raised by the applicant’s representative in reference to the proposition “don’t give me more country information” and no issue was raised with that in the balance of the hearing or in the written submissions provided on 21 October 2014 that enclosed a further statutory declaration by the applicant in which he purported to explain that the temple was a private temple owned by his family but was not a private place of worship, but was built on the applicant’s forefather’s property to spread Hinduism. The applicant explained that locals came, as well as from neighbouring villages, to use the temple in worship.

22. The applicant referred to the practice of Hindus changing to become Muslim to avoid discrimination and harm, and the applicant’s responsibility as an only child to encourage and promote Hinduism and discourage Hindus from becoming Muslim. The applicant’s statutory declaration maintained that he would continue his activities of discouraging Hindus not to change religion, and that he maintained that in that regard he was not an ordinary Hindu and feared that he be targeted because of his activities and opinion in discouraging Hindus to convert to Islam.

23. The first respondent submitted that the comment in relation to “don’t give me further country information” was referrable to the context of having provided the purported two particulars of information that the Tribunal may consider would be the reasonable part of the reason for affirming the decision under review in relation to its impact on the Tribunal’s assessment of credibility of the applicant and in the context of the invitation of the applicant. It was submitted that in the context of that credibility concern, further country information on its face would not have been relevant and that the observation was to that extent of guidance rather than any non-compliance with the obligations under s.424AA.

24. I have taken into account the applicant’s further written submissions as follows:

    1. These submissions are filed pursuant to leave granted by the Court on 8 June 2016 in reply to the submissions filed by the First Respondent on 22 June 2016.

    Compliance with 424AA(1)(b) and/or or the issue raised by SZTGV v Minister for Immigration & Border Protection & Anor [2015) FCAFC 3 at [11]

    2. It is submitted that the Respondent's analysis of the key phrase in SZBYR at [17] (cited in SZTGV at [11]) to the effect that ss424AA and 424A apply to information which “contain[s] in [its] terms, a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations”, is too narrow. Recent cases have applied SZBYR more broadly.

    3. At the hearing the Applicant referred to SZVGQ,1 which the Respondent submits was wrongly decided. The Applicant rejects that submission and submits that it is entirely consistent with the interpretation given in by North J in SZVJY,2 also referred to by the Applicant at the hearing.

    4. In both of those cases, the undermining effect of the information arises from its context, as information which undermines the applicant's claims by bringing his credibility into question.

    5. In respect of the matter currently before the Court, it is submitted that the information given by the Applicant at the interview with the delegate, which is not excluded from the operation of s424A because it was given orally, was information that, in context, the Tribunal considered would have an undermining effect of the Applicant's credibility and was therefore information that the Tribunal considered would be part of the reason for affirming the decision under review.

    Whether the Applicant had a genuine hearing

    6. The Court raised the question whether the following exchange at the Tribunal hearing could have resulted in the Applicant not being given a genuine hearing (T 47.42-49):

    Q. Is there anything more you want to say or you're happy to put it in writing?

    A. INTERPRETER: In writing.

    Q. How long do you want?

    A. WITNESS: Twentieth of October - on Monday.

    Q. Yes sure, close of business 20 October. Thank you interpreter you can go I think they can hear. Don't give me more country information.

    [emphasis added]

    7. An applicant's right to a hearing under Part 7 of the Act is circumscribed only by the limitations listed in s425(2).

    8. The Respondent's submissions on this point cover a wide range of issues that are not really relevant to this question. Nothing in the authorities referred to by the Respondents suggests that the Tribunal can limit the scope of what an applicant may wish to raise as evidence in support of his or her claims for protection. The hearing is the central element of the review process.3 In addition, s423 of the Act gives an applicant an absolute right to give to the Tribunal written arguments relating to the issues arising in relation to the decision under review.

    9. As a final argument, the Respondent notes that the applicant was represented before the Tribunal and showed no intention to provide further country information or to take issue with the Tribunal's statement. The Tribunal however is not a Court, and the role of a representative, even a legally trained one, is not the same as it would be in a Court. The Tribunal's procedures are highly schematic, as set out in the “exhaustive statement of the natural justice hearing rule” of which s425 is a part. Submissions previously made in respect of observations made in SAAP are relevant to this point also.

25. I find that there was no information that enlivened any obligation under s.424A and accordingly no error as alleged in ground 1 is made out.

26. Further, I accept the first respondent’s submission that even if there was an obligation enlivened under s.424A in respect of the information identified by the solicitor for the applicant, the Tribunal complied with its obligation under s.424AA.

27. I find that the Tribunal did not limit the scope of what the applicant may wish to raise. I find that the observation made in relation to “don’t give me more country information” was not taken as an instruction that detracted from the opportunity given to the applicant consistent with the requirements of s.424AA.

28. Further, given that the applicant was represented by his migration agent, I accept the first respondent’s submission that in the circumstances of the present case the applicant had a genuine hearing and that there is no breach of s.425 of the Migration Act 1958.

29. The application is dismissed.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 July 2016