FEDERAL COURT OF AUSTRALIA

AAM15 v Minister for Immigration and Border Protection [2018] FCA 1143

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

The appeal

1    The appellants seek to appeal against the decision of the Federal Circuit Court dated 30 May 2017 dismissing their application for judicial review of a decision of the (then) Refugee Review Tribunal (Tribunal): AAM15 v Minister for Immigration [2017] FCCA 1612. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), to refuse to grant the appellants Protection (Class XA) visas pursuant to s 65 of the Migration Act 1958 (Cth) (Act).

Background

2    The three appellants are a husband (the first appellant), wife (the second appellant) and daughter (the third appellant) from Bangladesh. The first appellant first came to Australia in 1998. He applied for a protection visa on the basis that he was a member of the Jatio Party in Bangladesh. That application was refused.

3    The first appellant travelled back to Bangladesh in 2008, and then returned to Australia with the second and third appellants on 11 July 2013. The first appellant applied for a protection visa, listing the second and third appellants as members of his family unit, on 7 August 2013. The date of birth that the first appellant used on the 7 August 2013 application was different from that he had used in his earlier protection visa application.

4    The first appellant’s application for a protection visa was based on his claim that he was a high profile supporter of the Bangladesh National Party (BNP), and because of his membership of a particular social group that included BNP supporters who were pursuing justice for the murder of the first appellant’s son. The first appellant also claimed that he would face persecution if he returned to Bangladesh because he was involved in the SHUJON human rights organisation.

5    As a result of his involvement with the BNP while he was growing up, the first appellant claimed that he and his family were at risk of harm from the Awami League (AL). The first appellant claimed that the AL viewed him as a political threat to them.

6    The first appellant also claimed that his son was killed in a “pre-planned murder” in 2010 because of his work as a journalist reporting on political activities, that there had been an attempted abduction of the third appellant in 2011 and that the first appellant’s brickwork business had been attacked and set on fire by his enemies.

7    A delegate of the Minister refused the protection visa application on 20 March 2014 on the basis that the delegate did not consider the first appellant to be a credible witness and was not satisfied that the first appellant’s claims in relation to his political activities and his son’s murder, or the threats against his daughter, were truthful.

Tribunal proceedings

8    The appellants sought review of the delegate’s decision in the Tribunal on 7 April 2014. The appellants were represented by a firm of solicitors that employed migration agents at a hearing before the Tribunal on 19 November 2014. The appellants provided further documents subsequent to the hearing, including a statement from the third appellant. The Tribunal sent the appellants a letter on 10 December 2014 pursuant to s 424A of the Act inviting the appellants’ comments and responses to certain information (s 424A letter). The appellants responded on 31 December 2014 and provided a statutory declaration by the first appellant and further submissions.

9    The Tribunal affirmed the decision of the delegate not to grant the protection visas on 27 January 2015. The Tribunal noted that the second and third appellants had not made any claims of their own. The first appellant had made claims for them on their behalf.

10    The Tribunal had a number of concerns in relation to the first appellant’s evidence and credibility, which can be summarised as follows:

    The Tribunal was concerned that the first appellant had been untruthful about his intentions to come to Australia.

    The fact that the first appellant demonstrated a willingness to intentionally deceive the Australia government by obtaining a passport with a different date of birth, as he would not be granted a visa under the name and date of birth that he had previously used to apply, reflected poorly on his credibility.

    The Tribunal considered that the first appellant’s evidence in his previous application that he was persecuted by the AL because he was a member of the Jatio Party, was inconsistent with his current claims that he would be persecuted by the AL because he has always been involved with the BNP. It also reflected poorly on his credibility that he had lied under oath before a tribunal about his involvement with the Jatio Party in his earlier application.

    The Tribunal considered that if the first appellant did face dangers and difficulties as he claimed, he would not have voluntarily returned to Bangladesh after travelling to the United Kingdom (UK) and India in 2013. The Tribunal considered that if the events that the first appellant claimed had occurred actually had occurred, the first appellant would have sought asylum in the UK. This also cast doubt on the first appellant’s claims that he had been targeted and in hiding in 2012.

    The Tribunal were not persuaded by the first appellant’s claim that he had delayed leaving Bangladesh so that his daughter’s education would not be hampered. If the dangers claimed by the first appellant existed, he would have sought every possible avenue to leave Bangladesh as soon as possible.

    The Tribunal did not accept the evidence about the attempted abduction of the third appellant in 2011. The first appellant had made no mention of this earlier – rather he had stated that he had not had any major problems from 2008 to 2012. This undermined the credibility of the first appellant’s later claims about the attempted abduction in 2011. The attempted abduction also was not mentioned in a letter of support provided by a high level BNP member.

    The Tribunal was not satisfied that the appellants were threatened because of the first appellant’s political activities. The statutory declaration provided by the second appellant concerning the time when the threats against the appellants commenced was inconsistent with the evidence of the first appellant at the hearing.

    The Tribunal had doubts about the evidence concerning the claim that the first appellant’s brickwork business in Bangladesh had been attacked and set on fire by his enemies on two occasions. The first appellant’s claims were inconsistent with a newspaper article provided to the Tribunal – further, the Tribunal had additional concerns about the genuineness of the article in circumstances where information available to the Tribunal indicated that forged and fraudulent documents were readily available in Bangladesh.

    The Tribunal considered that the appellants’ evidence in relation to their residential addresses and history in Bangladesh was inconsistent and unpersuasive. There were numerous inconsistencies about the family’s location at different times in the statutory declarations provided by the second and third appellants and the claims and evidence of the first appellant.

11    Accordingly, the Tribunal found that the first appellant did not meet the criteria in ss 36(2)(a) or (aa) of the Act because the Tribunal was not satisfied that the first appellant would be harmed if returned to Bangladesh. As the second and third appellants had not made any claims of their own, the Tribunal considered that there was even less chance of the first appellant’s family being harmed.

Federal Circuit Court proceedings

12    The appellants sought judicial review of the Tribunal’s decision in the Federal Circuit Court. Judgment was given by the Federal Circuit Court on 11 May 2015, however the appellants successfully appealed that decision in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452. The matter was remitted by the Federal Court to the Federal Circuit Court.

13    At the remitted hearing, the appellants sought to rely on two grounds of review (which were their original grounds in the first Federal Circuit Court proceeding):

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

Particulars

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

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

Particulars

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

(Errors in original.)

14    The primary Judge rejected ground 1 as the third appellant was provided with a meaningful opportunity to give evidence in relation to the first appellant’s claims that concerned her. The third appellant chose not to give evidence orally, even when offered an adjournment to a different day, but provided an additional written statement. Further, the primary Judge found that the Tribunal had considered that the claims involving the first appellant’s concerns for the third appellant and the Tribunal made findings in respect of that evidence which were open to it.

15    As to ground 2, the primary Judge found that there had been no breach of the obligation in either ss 424A or 424AA. The appellants had been sent a s 424A letter on 10 December 2014, to which the appellants responded on 31 December 2014. The s 424A letter raised the relevant information and drew the appellants’ attention to why it was relevant to the review of the Minister’s decision. Accordingly, the Tribunal had complied with s 424A. As the Tribunal had notified the appellants in writing, s 424AA was not engaged.

16    The Federal Circuit therefore dismissed the application for judicial review as no jurisdictional error on the part of the Tribunal had been established.

Grounds of appeal

17    In the present case before me, the appellants rely on seven grounds of appeal as follows:

1.    The Court below erred in finding that the Refugee Review Tribunal had failed to properly consider the Appellant’s claims under s36 (2) (a) and s36 (2) (aa) of the Migration Act 1958 (“The Act”).

2.    The Court below erred in finding that Tribunal failed to give natural justice opportunity to the Appellant’s daughter to provide her claims orally at the Tribunal. The Appellant’s daughter claimed that she would face sexual harassment from her persecutors and the Tribunal failed to provide natural justice opportunity to provide evidence orally to the Tribunal.

3.    The Tribunal failed to comply with s425 of the Migration Act 1958 in respect of the Third Appellant. The Tribunal failed to ask relevant questions from the Appellant’s daughter regarding her claim that she would face sexual harassment from her persecutors in Bangladesh.

4.    The Tribunal member did not adequately consider the Appellant’s daughter’s claim under the Complementary Protection ground. The Tribunal failed to consider the Appellant’s claims cumulatively including the claim of sexual harassment. The Tribunal in its decision in para 51 noted that the applicant’s daughter submitted form D stating that she has no separate claim. It seems from the Tribunal decision that the Tribunal did not asses the applicant’s daughter’s claim, particularly regarding sexual harassment and assault claim. The applicant’s daughter provided a statement to the Tribunal providing specific reasons and claimed protection on her own based on her fear that she would face sexual harassment if she returned to Bangladesh. Since the applicant’s daughter raised a separate claim at the Tribunal’s stage, it has the duty to asses the claim. The Tribunal failed to assess that claim either under the complementary protection or under the Refugee convention reasons.

5    The Tribunal failed to disclose of any existence of Section 538 Certificate adverse to the applicant in light of the recent decision of the High Court in Singh.

6.    The Tribunal failed to consider the Appellant’s political activities in Australia under section 36 (2) (aa) of the Migration Act.

7.    The Tribunal failed to comply with s424(A) or s 424 (AA) of the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review. The Tribunal took into account information that had been given by the Appellant orally to the Minister’s Department in determining whether the Appellant was a truthful witness. That information was not put to the Appellant in accordance with s424 (A) ort 424 (AA) of the Act. The Tribunal noted in its decision record that the applicant applied for a protection visa in 1998 claiming his membership with the Jatio Party and raised concerns. However, the Tribunal failed to put that information under S424 (A) or 424 (AA) of the Act. Further, the Tribunal mentioned that the applicant previously obtained a false passport with a different date of birth. This is an information adverse to the applicant should have been put under section 424 (A) or 424 (AA).

(Errors in original.)

18    The first appellant indicated in his written submissions that ground 5 is no longer pressed and it was not argued at the oral hearing.

19    As concerns the remaining grounds of appeal, although not in identical terms, grounds 3 and 7 are materially similar to the grounds of review raised and the arguments made in submissions in the Federal Circuit Court. Grounds 1, 2, 4 and 6 were not argued in the Federal Circuit. Therefore, pursuant to the authorities of MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [14]-[15] and VAUX v Minister for Immigration and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], the appellants require leave to rely on the fresh grounds of appeal.

20    I also note that grounds 3 to 7 are not expressed in terms that identify error on the part of the primary Judge, as opposed to error on the part of the Tribunal.

21    In any event, the Minister has filed submissions capable of answering all of the grounds of appeal on a substantive level.

Consideration

Ground 1

22    By ground 1, the appellants appear complain that the Tribunal failed to properly consider the claims under ss 36(2)(a) and (aa) of the Act, being the criteria for a protection visa. However, it is clear from the record of the Tribunal’s decision at [53] that regard was had and reference made to the criteria in ss 36(2)(a) and (aa) and the relevant protection visa criteria were applied. The appellants have not identified any specific alleged error in the application of the criteria to the circumstances of their case. It would seem that ground 1 does nothing more than express the appellants’ dissatisfaction with the Tribunal’s findings in relation to those criteria.

23    The Minister indicated that ground 1 is directed to a finding in the earlier judgment of AAM15 v Minister for Immigration [2015] FCCA 1225. If this is the case, it has no relevance to this proceeding as it does not concern the decision that is being appealed. However, why the Minister makes this submission is unclear. The Minister submitted that this ground of appeal is clearly directed towards the earlier finding of the Federal Circuit Court Judge at AAM15 v Minister for Immigration [2015] FCCA 1225 at [9], which is not the subject of this appeal. In the paragraph referenced by the Minister, the Federal Circuit Court Judge held that relevant passages in the Tribunal’s reasons indicated that the Tribunal was not satisfied that criteria in ss 36(2)(a) or (aa) had been met. A similar statement was made by the primary Judge in [11] of the decision that is the subject of the appeal. As such, ground 1 could just as easily be directed to the finding of the primary Judge in the relevant decision, contrary to what the Minister has submitted. Notwithstanding this observation, as I stated earlier I consider that this ground fails to identify or particularise any error on the part of the primary Judge.

24    As this ground has no prospects of success, and is insufficiently particularised so as to identify any error either on the part of the primary Judge or the Tribunal, leave to rely on it should be refused.

Grounds 2, 3 and 4

25    Grounds 2 to 4 all concern the claims that the third appellant would be subjected to sexual harassment if she returned to Bangladesh. It is convenient to consider these claims together.

26    Ground 2 is concerned with whether the third appellant received natural justice in the Tribunal, and whether the Tribunal afforded the third appellant an opportunity to present oral evidence in support of her claims. The natural justice obligations of the Tribunal in these circumstances are prescribed by the Act, and specifically referred to by s 425 of the Act and ground of appeal 3. Section 425 provides:

Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present argument 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 consent to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applied 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.

27    The appellants’ specific complaint in ground 2 in respect of s 425 concerns the absence of relevant questions by the Tribunal of the third appellant regarding her claim that she would face sexual harassment. The Minister submits that this is an assertion that the Tribunal failed to inquire into certain matters pursuant to s 425 of the Act. In particular, it appears that:

    Prior to the hearing before the Tribunal the third appellant provided a statutory declaration in which she gave evidence about an attempted abduction, allegedly by the first appellant’s political opponents. She stated further her fear that she would be subject to sexual assault “to take revenge against my father”.

    After the hearing on 19 November 2014, the third appellant provided a further statutory declaration in which she gave evidence that she feared she would be “abducted by my father’s political and business enemies and may face sexual violence”.

28    At [9] of the Tribunal’s statement of decision and reasons, the Tribunal stated:

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

(Emphasis added.)

29    It is apparent from this paragraph that the third appellant was given a meaningful opportunity to give oral evidence, but declined this opportunity and elected to give a further written statutory declaration. The Tribunal stated at [9] that it had regard to the third appellant’s further statement.

30    The Tribunal was not by s 425 of the Act obliged to ask any particular questions of the third appellant in relation to her stated case. The Tribunal has no general duty to inquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [24], [52]-[53]) but a duty to make certain inquiries could possible arise in some circumstances: SZIAI at [20]-[23], [25].

31    However I also note that, in written submissions, the appellants referred to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 and sought to rely on the a passage from that case that supported the appellants’ contention in written submissions that:

… thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceed to make the decision without making the enquiry.

32    In this respect it appears that the appellants further contend that, rather than the Tribunal breaching a duty to inquire, the decision of the Tribunal not to make inquiries resulted in legal unreasonableness.

33    Contrary to the submission of the appellants, the quoted passage does not appear in Yusuf – it does, however, appear in the judgment of Kenny J in Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [63]. Arguments and authorities concerning an unreasonable failure to inquire were addressed by the plurality in SZIAI at [20]-[25]. The High Court left the issue open but stated at [20] and [25]:

20.    The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.

…

25.    Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case …

(Footnotes omitted.)

See also Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [23].

34    In circumstances where the appellants were given a meaningful opportunity to make submissions, including prior to and after the hearing, I am not satisfied that any further inquiry was required of the Tribunal such that the absence of specific questions concerning the possibility of sexual harassment of the third appellant constituted unreasonableness on the part of the Tribunal.

35    Ground 4 similarly concerns the third appellant’s claims but is set out somewhat differently. The complaint with respect to this ground of appeal is that the third appellant had separate claims in her own right because of her fears upon returning to Bangladesh. The Minister submitted that the third appellant was only involved as a member of the first appellant’s family and that, even if the third appellant did have a separate claim in her own right, she was nonetheless given the opportunity to take a meaningful part in the hearing and every opportunity to give additional evidence as a separate claimant. In my view the submission of the Minister accurately summarises the position in respect of this ground of appeal, and I consider it has not merit.

Ground 6

36    In ground 6, the first appellant alleges that the Tribunal did not have regard to his political activities in Australia.

37    The first appellant submitted that his political activities in Australia could not be disregarded under s 91(R)(3) of the Act when assessing the complementary protection criteria. The failure to take those activities into consideration resulted in the Tribunal failing to properly consider the first appellant’s claims under ss 36(2)(a) and (aa) of the Act.

38    The Minister submitted that the first appellant had provided no evidence of his political activities in Australia, other than simply that he had become a member of the BNP’s Australian branch while living in Australia between 1998 and 2008. The Minister therefore submitted that the first appellant did not advance any claim in relation to his political activities in Australia and that ground 6 would fail, even if leave to rely on it were granted, because the Tribunal found that no complementary protections were owed to the appellants. In this respect, the Minister contended that the Tribunal’s finding that the first appellant was a member of the BNP, but that he was not a high-profile member, was of particular relevance.

39    The appellant disagreed with this, stating that he submitted a letter from the Member Secretary date 11 November 2014 which stated that the first appellant had been working with the BNP since his arrival in Australia in 2013.

40    I do not accept that the Tribunal failed to consider the first appellant’s political activities in Australia, as he alleges. At [37] the Tribunal found:

The applicant has provided letters of support from Ad Shahid Md Iqbal Hossain, BNP, Mayor, Monirampur, Bangladesh and Mohammad Rashedul Hauq, Member Secretary, Bangladesh Jatiotabadi Dal Australia (BNP) dated 11 November 2014 and photographs in newspaper articles of him involved with a BNP group. The support letters both refer to the applicant’s active involvement with the BNP although the Tribunal finds it concerning that the letter from BNP Australia refers only to his involvement since July 2013 without any reference to his claimed involvement in 1998-2008. The Tribunal is willing to accept that the applicant is currently a supporter of the BNP and has been actively involved in BNP activities. However, the Tribunal considers that the applicant has exaggerated his role and it is not satisfied that he has the type of political profile that would place him at risk of harm if he was to return to Bangladesh.

(Emphasis added.)

41    As this paragraph demonstrates, the Tribunal took into consideration that the first appellant was an active supporter of the BNP in Australia, however it also considered that he exaggerated his role and would not be at risk if he returned to Bangladesh.

42    Ground 6, in my view, has no merit.

Ground 7

43    The substance of ground 7 concerns the alleged failure of the Tribunal to comply with ss 424A and 424AA, by not putting to the first appellant information that the first appellant had given to a delegate at an oral interview.

Section 424A

44    Section 424A of the Act requires that the Tribunal give an applicant clear particulars of certain adverse information and invite the applicant to comment on that information. The section provides:

Information and invitation given in writing by Tribunal

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

(a)    give the applicant, in the way 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 reasons, 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 commend on or respond to it.

(2)    The information and invitation must be given 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, not 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 commend on or respond to the information, under section 424AA.

(3)    This section does 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).

45    On 10 December 2014, the Tribunal sent a s 424A letter to the appellants with the subject: “INVITATION TO COMMENT ON OR RESPOND TO INFORMATION …”. Relevantly, the Tribunal set out in this letter two pieces of information that it said the first appellant had provided at his Departmental interview, and gave explanations as to why the information was relevant to the review as follows:

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

The information above is relevant to the review because at the Tribunal hearing Mr … stated that he was in hiding in Bangladesh and was only able to return temporarily and irregularly to his home and business for fear of being harmed by the Awami League. If this was true the Tribunal may expect that you would have referred to this in the Departmental interview.

If the Tribunal relied on this information in making its decision it would find that Mr … was not in hiding in Bangladesh and was not of adverse interest to the Awami League. This would lead the Tribunal to find that Mr … is not a credible witness, has not been truthful in his evidence, is not being targeted by the Awami League and you are not owed protection obligations as claimed.

...

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

The information above is relevant to the review because it appears to be inconsistent with your evidence to the Tribunal that your daughter was attacked in around April 2011 but you did not decide to leave Bangladesh until after you returned from the UK in April 2013.

If the Tribunal relied on this information in making its decision it would find that you have not been truthful about your reasons for leaving Bangladesh. This would lead the Tribunal to find that you are not a credible witness, there was no attempted abduction of your daughter in 2011 and you are not owed protection obligations as claimed.

(Original emphasis.)

46    It is not clear from the appellants’ grounds of appeal, nor from their oral or written submissions, what information the first appellant claims he gave to the delegate orally that was relied on by the Tribunal but that was not put to him for comment or response. The first appellant has not identified any such information with particularity. However, it is clear that, in the s 424A letter, the Tribunal provided particulars of the two pieces of information given at the oral Departmental interview, identified above, on which it intended to rely. The Tribunal further gave clear statements as to the relevance of that information to the review of the delegate’s decision, and the effect of the Tribunal relying on those two pieces of information. The appellants responded to the letter on 31 December 2014.

47    The first appellant provided an additional written declaration, and further submissions.

48    With respect to this information, the Tribunal discharged its obligations pursuant to s 424A(1). No other relevant information from the oral interview has been identified by the appellant. The primary Judge, therefore, was not in error in concluding that the Tribunal had complied with s 424A(1) in this respect.

Section 424AA

49    Section 424AA provides:

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).

50    As the primary Judge correctly noted at [62] of the primary judgment, s 424AA is an alternative mechanism for the Tribunal to bring “information” to the attention of an applicant. In respect of information set out by the Tribunal in its s 424A letter, it is clear that the Tribunal elected, as it was entitled to do pursuant to s 424A(2A), to put information to the appellants in a letter rather than put the relevant information to the appellants orally at a hearing.

51    It follows that, in relation to the matters raised in the s 424A letter, s 424AA was not engaged. There was no error in the primary Judge’s approach to the allegations regarding s 424AA of the Act.

52    However in ground 7, the appellants also contend that the Tribunal did not put to the first appellant information that:

    the first appellant had applied for a visa in 1998, claiming to be a member of the Jatio Party and not the BNP, as he now claims; and

    the first appellant had previously obtained a false passport with a different date of birth.

53    The alleged failure on the part of the Tribunal to bring these two pieces of information to the first appellant’s attention was not an aspect of the relevant ground of review before the Federal Circuit Court.

54    This information was not put to the appellants in the Tribunal’s s 424A letter. However the Minister submits that, in respect of this information, the Tribunal has complied with s 424AA because it raised these issues with the first appellant at the oral hearing. This appears to be the case. In its reasons for decision the Tribunal stated:

15.    Furthermore, the Tribunal does not consider that the applicant has been truthful about his plans to come to Australia. He stated that his current passport has a false date of birth. The passport (which was produced at the hearing was issued on 28 March 2011 and contains stamps which show that he subsequently used it to travel to the UK, Thailand, Malaysia and India. The Tribunal asked whether he intended to travel to Australia at the time that he obtained his passport but he stated that he did not. When the Tribunal queried why then he had obtained a passport with a false date of birth he then changed his evidence and stated that he was not planning on applying but it was in the back of his mind that ultimately he would like to go to Australia if he could not live in Bangladesh. The Tribunal did not find this persuasive and it appears to the Tribunal that the applicant has planned to return to Australia since at least 2011 and this was why he obtained a passport with a false date of birth and then travelled to a number of countries using that passport.

16.    Second, as discussed with the applicant at the hearing, the applicant’s previous protection visa application significantly undermines his current claims He stated at the hearing that he was a supporter of the BNP at that time but was advised by his representative not to refer to that but instead to claim that he was a member of the Jatio Party. When the Tribunal questioned why he would be advised to claim this he stated that he did not know. He stated that he had given evidence under oath to the Tribunal (differently constituted) that he was a supporter of the Jatio Party but this was not true and he had lied up until that point so hTe did not know what else to do. The Tribunal considers that this evidence significantly undermines the applicant’s current claims. The Tribunal cannot see any credible reason why the applicant would claim to be persecuted by the Awami League because he was a member of the Jatio Party if in fact he was being persecuted by the Awami League because he was a member of the BNP. His evidence that his previous protection visa application was lodged in 1998 on the basis of his membership to [sic] the Jatio Party suggests that he was not a supporter of the BNP at that time, contrary to his current claims that he and his family have always been supporters of the BNP and he has been involved since his childhood.

(Emphasis added.)

55    This extract indicates that these issues were raised by the Tribunal with the appellants at the hearing in accordance with s 424AA, and to that extent the relevant information was put by the Tribunal to the appellants at that time. It further appears that the first appellant did comment on the information referable to his false passport and his alleged membership of the Jatio Party. I am not satisfied that the Tribunal failed to comply with the requirements of s 424AA in relation to this information.

56    It follows that ground 7 has no merit.

Conclusion

57    The appropriate order is that the appeal be dismissed, with costs.

Associate:

Dated:    3 August 2018