BFW16 v Minister for Home Affairs

Application to the FCC 7 It is not necessary to set out the lengthy grounds of review before the FCC. It is sufficient to acknowledge that the appellant raised before that Court the ground upon which he now relies, being an allegation that the Tribunal committed a jurisdictional error by failing to comply with s 424A of the Act. Before that Court he alleged that the Tribunal had failed to provide "information" to him about its concern that he did not, without prompting, identify any fear of harm from his brother-in-law as appears in the extract of the Tribunal's reasons identified above. 8 Before the FCC the appellant argued that his answer to the delegate's question as to whether he had any other difficulties was not an "absence of information". Rather, it was said to be a "positive response in the negative to a question put to him". It is said that this was relied upon by the Tribunal in finding adversely to his credit and can, therefore, be said to be a reason, or part of the reason, for affirming the delegate's decision. His argument that his negative response was, in fact, a positive response to the negative question posed by the delegate was an attempt to avoid the consequences of the decision in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 (SZBYR) and SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90, [102]-[103] (SZTGV), to the effect that an absence of information is not "information" within s 424A. 9 The learned primary judge rejected the appellant's submission. His Honour found that, regardless of how the delegate's decision is characterised, none of it was, in its terms, a rejection, denial or undermining of the appellant's claims to fear harm (SZBYR [17]). His Honour considered the two sentences in the Tribunal's reasons as being, at best, neutral. That being so, it was not "information" for the purposes of s 424A. The primary judge found that the appellant's argument, in great part, confused what was relevantly recorded in the delegate's decision with the Tribunal's view of what the delegate had reported of his discussions with the appellant at the interview. In this respect the Tribunal's reasoning was identified as being clear: that the appellant only raised the matter of his brother-in-law when prompted by the delegate; and if he feared harm from his brother-in-law he would have raised it without prompting, particularly as it had been advanced as one of the three central bases for his claim to fear harm and as to why he left Bangladesh. His Honour said at [63]-[64]: 63. Any plain, let alone a fair reading of [47] (at CB 185 to CB 186) reveals that the focus of the Tribunal's reasoning was its "view" that the applicant had to be prompted to raise the matter involving his brother-in-law. If the applicant's fear of his brother-in-law was genuine, given the subsequently claimed threat to his life, he would have raised it without prompting. 64. The Tribunal's "view" of the evidence before it, its subjective appraisal of the evidence, is not "information" for the purposes of s.424A(1) of the Act (SZBYR at [18]). 10 It followed that the Court below considered the Tribunal's evaluation of the evidence relating to some questions and answers from the Departmental interview as falling outside of the expression "information" as it is used for the purposes of s 424A(1). 11 As a result the application for review was dismissed.

Appeal to this Court 12 Before this Court the appellant submits that his response to the delegate's question was not neutral and, in terms, undermined his case because it was an admission that he had no other problems in Bangladesh and there was no other reason why he feared returning there. This, so he submits, undermined his claims of threats from his brother-in-law as a reason he feared returning. It was argued that this was quite a different thing from making no claim at an earlier stage and then raising it subsequently, as was the case in SZTGV. 13 The Minister submits that the "information" in question was the appellant's response to the question posed to him by the delegate and that was not something that, on its terms, was a rejection, denial or undermining of his claims. He submits that the Tribunal's reasons makes it clear that it relied upon the following chain of reasoning: (a) a consideration of what had been said earlier in the protection interview; (b) the "view" that, if his claims were true, he would have raised them earlier without being directly prompted; and (c) a deduction that because it was not raised without prompting, the account was false.

Consideration 14 For present purposes attention needs to be directed to s 424A(1) of the Act which provides: (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. 15 There is no need to analyse the authorities which have considered the operation of s 424A in recent years. That has been recently done by Gleeson J in BVE16 v Minister for Immigration and Border Protection [2018] FCA 922. I am grateful for her Honour's analysis and I am able to summarise, albeit without citation of all of the relevant authorities, some of the relevant principles which her Honour identified: (a) The statutory criterion does not operate upon "the reasoning process of the Tribunal" or its published reasons: SZBYR [17]. (b) The "reason" for affirming a decision under review is dependent upon the statutory criteria for making the decision the first place. Consideration needs to be given to the ultimate determination being, in this case, whether the appellant was a person to whom Australia owed protection obligations under the Convention: SZBYR [17]. (c) Individual pieces of evidence which, of themselves, are a mere step in the evaluative process are unlikely to constitute "the reason, or part of a reason, for affirming a decision under review". Such pieces of evidence do not contain, in their terms, a rejection, denial or undermining of the applicant's claim to be persons to whom Australia owes protection obligations: SZBYR [17]. (d) The Tribunal's mere disbelief of an applicant's evidence arising from inconsistencies or implausibilities is most unlikely to be capable of being characterised as "information": SZBYR [18]. (e) Similarly, even if the evaluative view of the applicant's evidence showed it was insufficient to establish a Convention nexus, it is difficult to see how that insufficiency in the mind of the Tribunal constitutes "information": SZBYR [18]. (f) The Tribunal's subjective evaluative appraisals, being thought processes or determinations, are not information: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at 555. (g) Similarly, identified gaps in the evidence before the Tribunal, or defects or lack of detail or specificity in evidence is not "information" for the purposes of s 424A. Further, conclusions arrived at by the Tribunal in its evaluative task of weighing up the evidence by reference to such defects or gaps is not information: SZBYR [18]. (h) The contextual elements of s 424A show that the concept of "information" is directed towards evidentiary material or documentation which adversely affects the claim in a significant and substantial manner, in the sense of it being the reason, or part of the reason, for its conclusion. Generally, the Court must assess the information in the context of its "dispositive relevance" to the claims being advanced: MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 (MZXBQ), [27]. (i) Necessarily, the above considerations point inexorably to the conclusion that material going merely to credibility is not within the section. The lack of credibility does not involve a rejection, denial or undermining of the applicant's claim: MZXBQ [29]. (j) The "dispositive relevance" of information must reach the level that it "would", not "could" or "might", be the reason or part of the reason for affirming the decision under review: Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507, [25]. 16 In BVE16 her Honour then considered a potential line of cases which were suggestive that matters going only to credibility could be within the scope of "information" for the purposes of s 424A. However, her Honour concluded that, on a proper reading of those authorities, no such principle existed.

Application to the present case 17 As identified above, the Minister identified that the asserted "information" was the appellant's failure to mention, without being prompted, that he had a dispute in Bangladesh with his brother-in-law. The fact that he gave a negative answer to the question of whether he had any other fears did not change the substance of his evidence. In other words, there was an absence of any evidence in the response to the appellant experiencing any difficulties with his brother-in-law. The question to be asked is whether this "information" would be, of itself, the reason or part of the reason for affirming the decision. That can be tested by identifying the process which would have occurred in relation to this information. That is not necessarily what actually did occur, although the two may well be the same. Here, the reasoning sequence in relation to the appellant's failure to mention at an opportune time the alleged dispute with his brother-in-law would be: (a) a consideration of what the appellant failed to mention (or even denied existed) when faced with a particular question; (b) the application of a forensic analysis to the omission to speak (or denial) when the opportunity arose giving rise to the assumption that if the claim relating to threat of harm from his brother-in-law were true it would have been mentioned at that time; and (c) a deduction that because the evidence was not revealed at an opportune time the account which was given on another occasion was false. 18 In other words, the absence of information being supplied by the appellant at an appropriate time was to be evaluated through a deductive process leading to a conclusion, when amalgamated with other evidence, that the claim was false. An almost identical situation was considered in SZTGV at [102]-[103]: [102] It is apparent therefore that the Tribunal's process of reasoning involved (a) a consideration of what had not been said at the compliance interview; (b) the assertion of a forensic principle that if the applicant's version were true then he would have mentioned it at that time; and (c) a deduction that because it was not mentioned at that time the account was false. The absence of any reference to the Jat Sikh woman or his bisexuality was to be seen as a matter from which one could reason to the falsity of his account. [103] The applicant's argument was that this matter was "information" which was required to be disclosed to the applicant within the meaning of s 424A. However, for the reasons we have already given, an absence of evidence is not information within s 424A: SZBYR at [18]. It follows that proposed appeal ground 1 cannot succeed. 19 The Minister relied on the above statement as being legally indistinguishable from the present case. That submission should be accepted. The reasoning of the Full Court in SZTGV is in accordance with the principles referred to above and it applies to the circumstances of the present case. The appellant's denial was not evidence which, in its terms, constituted a rejection, denial or undermining of the appellant's claim to be a person to whom Australia owes protection obligations. It was, no doubt, an evaluative step in a reasoning process which considered the evidence before the Tribunal, but it was not of "dispositive relevance" to the question of whether Australia owed the appellant protection obligations. 20 Mr Godwin submitted that the appellant's denial in the interview to the question of whether he faced any other trouble was not a mere absence of evidence but was a statement that no other claim was being made or that he did not fear of harm from the brother-in-law. That submission attributes to the circumstances occurring at the interview too great a significance. The statement "no" in response to the question whether he faced any trouble from anyone else in Bangladesh apart from the Awami League was not, of itself, a rejection, denial or undermining of the appellant's claim or part of a claim. It was an indication that, at that point in time, he did not call to mind the fear of harm from his brother-in-law. He had made such a claim in his statement accompanying his protection visa application and the fact that he indicated he had no fears other than those arising by reason of the Awami League, gave rise to a concern that the claim he had made in relation to his brother-in-law lacked veracity. In the application of s 424A there is no substantive difference between the negative statement given by the appellant in this case and the position which would exist if he had simply failed to mention the existence of any fear from his brother-in-law. 21 It follows that what was, essentially, the view of the Tribunal that the appellant ought to have mentioned the alleged difficulties with his brother-in-law at an opportune and appropriate time was a matter of its evaluation and not "information" within the meaning of s 424A. 22 It follows that this ground of appeal must fail. 23 The appellant should pay the Minister's costs of the appeal. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.