The Authority
14 The Authority had regard to the submissions provided to it by the applicant on 3 August 2018: A[4].
15 In those submissions, the applicant stated that there were deficiencies in the interpreting in the SHEV interview. The Authority summarised the relevant events as follows at A[5]-[6]:
[5] In the submission, it was argued there were deficiencies in the interpreting in the SHEV interview. That the interview started at 9:13am and was stopped at 9:49am because of problems with the quality of the interpreting; the case officer, the applicant and solicitor had some discussion about the quality of the interpreting, but the case officer did not want to change interpreters. The SHEV interview recording was paused for this period of time. Unfortunately, the delegate did not explain, for the benefit of the recording, why he stopped the recording and what happened in the intervening period before he resumed recording.
[6] Before the recording was stopped, the delegate said he would move on from his line of questioning about what specifically happened to the applicant's father and brother to make them leave Bangladesh in 2014 and go to Malaysia, because he said he was not getting anywhere. The migration agent responded on behalf of the applicant and said the applicant can explain it quite well, it is just that there are issues here. The delegate said he had the applicant's SHEV application and he said he talks to his wife every day, and he expected the applicant would know the information he requested. The migrant agent said they could make another statement. The delegate said there will be time for that afterwards. The delegate then paused the recording of the interview. When the recording resumed, the delegate said they would try just one last time, and asked what was the event or events that caused the applicant's father to leave. The applicant responded in Bengali, he was interpreted in English, and the interview continued. There was no discussion about any interpreting issues in the recording of the interview.
16 The Authority then noted that the applicant addressed the reasons why his father and brother went to Malaysia in 2014 in a post-interview submission to the Minister, stating at A[7]:
At point five of the applicant's post-interview submission to the delegate dated 12 June 2018, the applicant briefly stated the reasons why his father and one brother went to Malaysia, and the information given supported that given in the SHEV interview, via the interpreter. This point addressed the line of questioning which preceded the delegate's decision to pause the SHEV interview. I consider the applicant was given, and took, the opportunity during the SHEV interview and in the post-interview submission to state his claims in this regard.
17 The applicant also argued in his submission to the Authority that the interpreter often made little sense and the translations that the interpreter gave after a two minute statement by the applicant resulted in a one phrase answer. However, the Authority found at A[8]-[9]:
[8] …Having listened to the SHEV interview, I do not agree with this argument. I understood the English language of the interpreter and did not detect instances when the applicant spoke for two minutes in Bengali and the interpreting into English was a one phrase answer. The applicant's submission to the IAA did not identify any inaccuracies in the interpreting at the SHEV interview.
[9] The applicant's post SHEV interview submission to the delegate made a number of points about the inability of the applicant to explain himself adequately, and argued that generally departmental case officers place the answers of applicants into their own world view and despite the applicant's case officer being responsive to the applicant's answers, he was aware that the interpreter was not competently translating the applicant's responses into adequate English, and the result is a vast cultural gap between the parties. No particular inaccuracies in the interpreting were highlighted in the submission. The delegate's decision addressed this issue and stated he gave little weight to the applicant's submissions about the interpretation at the SHEV interview as no inaccuracies were demonstrated. He stated [that,] if there were inaccuracies, the applicant had the opportunity of submitting examples to support his claims in his post interview submissions, which he did not do. He said the interpreter was accredited by the National Accreditation Authority for Translators and Interpreters (NAATI), and he found the interpreter at the SHEV interview correctly conveyed the applicant's testimony.
18 The applicant had also submitted to the Authority that the delegate chose to ignore the post-interview submission. However, the Authority found that the delegate's decision clearly addressed the post-interview submission, including the claim about the quality of interpreting: A[10].
19 The Authority considered whether to get new information from the applicant in writing or through an interview and was satisfied that it was not warranted: A[10].
20 The Authority's decision was accurately summarised by the primary judge in the following way (footnotes omitted):
Authority decision
[8] The Authority accepted that the applicant was a married Muslim man from Pabna district in Bangladesh; that his wife, mother, one brother and two sisters continue to live in Bangladesh; that he was from a small village of mostly farmers; and that his father and grandfather were farmers. The Authority was also prepared to accept that his father and another brother currently resided in Malaysia, and that the applicant left Bangladesh by boat without using a passport.
[9] However, the Authority did not accepted any of the applicant's other claims, including that:
a) he joined Bangladesh Islami Chhatra Shibir (ICS), the student section of JI, in 2008 (or at all) and attended monthly meetings;
b) he witnessed a physical assault in December 2012 by members of the Naxal gang against an AL member, or any of the incidents that flowed from that claimed event; namely, that:
i) he intervened and arranged for the beaten man to be sent to hospital where he later died;
ii) the gang members threatened to harm him;
iii) he was pressured by the AL and the police to be a witness in the case;
iv) he made a complaint to the police in January 2013;
v) physical violence was perpetrated against family members by AL; or
vi) his family home was burnt down by AL or family land was confiscated by AL;
c) before travelling to Malaysia in 2014, his father and brother were in hiding and travelled to Malaysia because the family home was burnt down, their land was confiscated in January or the AL demanded money from his father;
d) his younger brother is or was in hiding in Bangladesh; and
e) he or his family supported or were members of JI.
[10] In light of these factual findings, the Authority was not satisfied that the applicant had the profile of a person who would be targeted for any harm by the AL government, its members or supporters; that he would be active in support for the JI if he returned to Bangladesh; that there was a real chance he would be targeted for real or perceived support for ICS or JI; or for any other reason, including because he was a Muslim, because of his departure from Bangladesh or as a returning failed asylum seeker. Accordingly, the Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) and s 36(2)(a) of the Migration Act and, for the same reasons, the Authority found that the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act.