SZJYM v Minister for Immigration & Anor
[2008] FMCA 652
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJYM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 652 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in considering the applicant’s activities in Australia – whether failure to have regard to relevant consideration – whether failure to comply with s.424A of the Migration Act – whether Tribunal erred in considering delay in application for a protection visa. |
| Migration Act 1958 (Cth), ss.91R, 422B, 424A, 425 |
| Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 |
| Applicant: | SZJYM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 4 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 6 February 2008 |
| Date of Last Submission: | 14 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr J Knackstredt (supplementary written submissions prepared by Mr T Riley) |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That a writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the Refugee Review Tribunal made on 7 December 2006 in matter 060774068.
That a writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 23 August 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 4 of 2007
| SZJYM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal handed down on 7 December 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, claimed to fear persecution in China as a Christian and member of an underground or unregistered church called the “Jesus Church” that she started attending in 1997. She claimed that in May 1999, while members of the congregation were meeting at her home, police had broken into the home and told them that they would be taken to the Public Security Bureau for investigation. The applicant claimed that while waiting in line to get onto a police bus she managed to escape. She had then gone into hiding and, with the help of friends, obtained a false passport to travel to Australia. She arrived in Australia on 7 August 1999, travelling on what she described as another person’s passport, despite her claim that “commonsense” told her that the Australian Government would not allow any person using a fake passport to enter Australia. She applied for a protection visa on 5 June 2006.
In a statement accompanying her protection visa application she claimed that after arriving in Australia she dared “not tell anyone about [her] passport let alone the Australian government. All these years I did not know the situation like me (sic) could apply for protection visa. All these years, I living without have driver’s licence (sic), without tax file number, without bank account and this cause me a significant disadvantage and inconvenient. I lived a hard life because I dare not going back to China”. She claimed that she was free to worship God and spread the gospel in Australia.
The application was refused by a delegate of the first respondent who found that the applicant’s claims were vague and lacking in specific details and substantiation, that the PRC identity card (provided as evidence of the applicant’s identity) had been “assessed as counterfeit” and that there was a lack of information as to any church attendance by the applicant in Australia. The delegate found that the applicant’s delay in lodging her protection visa application added weight to the finding that her claims “appear not to reflect the reality of her circumstances” and noted that the applicant had not explained why she “now” sought protection after living illegally in Australia for nearly seven years.
The applicant sought review by the Tribunal. Her migration agent provided a written submission addressing the issue of the applicant’s true identity and the fact that she had provided the Department with a fake PRC identity card (which she said her sister had provided because she could not find the applicant’s original identity card and was worried that the applicant might still be of adverse interest to the local authorities).
Through her adviser the applicant made written claims to the Tribunal about her attendance at Christian churches in Australia, her baptism and her involvement in Bible classes. She claimed that initially, because she feared that her true identity would be discovered by a “Chinese government agent here” and she would be found out using a fake passport by the Australian government, she did not tell anyone her real name. She claimed she did not want anyone “to know [her] too much” and that she was living an isolated life. For about a year she attended “different Christian churches at different area”. She claimed that she started attending the same church from September 2000. She provided details of this church, which she claimed she attended regularly until March 2004. She claimed after mid-2003 she told the pastor her real name as she wanted it to appear on her baptism certificate.
The applicant claimed she moved to a different address in March 2004 and since then had been attending Sunday services and other activities at a named Anglican Church. She provided the pastor’s name and contact details. She also claimed that she had been a key member in a weekly Mandarin Bible class conducted by the church from about April 2006.
The applicant took issue with the delegate’s suggestion that house churches could operate openly in parts of China. She also claimed that employment difficulties, her lack of family, friends and a business network were obstacles to relocation. She provided some information about the name of her church in China and attached supporting materials, including a baptism certificate dated 23 November 2003 from a Chinese Christian church in Sydney.
The applicant attended a Tribunal hearing. She provided the Tribunal with a letter of support dated 23 October 2006 from the rector at the Anglican church she claimed she attended. It stated that the applicant had been a member of the church for at least the past two years and that the writer was confident that she was a genuine Christian who had consistently participated in meetings and activities of the church family. The rector also stated that his understanding was that the applicant had been in a difficult situation as a member of a house church in China.
The Tribunal decision
In its reasons for decision the Tribunal outlined the evidence before it, including the evidence given at the Tribunal hearing. The Tribunal decision is the only evidence before the Court of what occurred in the Tribunal hearing. It recorded that when it asked the applicant about the delay in lodging her protection visa application she had said that “over the years since arriving, she had not dared to tell others as she was very frightened of what may happen,” but that at the end of 2005 or early in 2006 she had heard from someone she had met in Church who had made an application and she then decided to apply. The Tribunal recorded that when asked why she then waited around six months to lodge an application, the applicant had said she trusted in God and in May 2006 saw a migration agent. She later said she “did not want to tell anyone her true story, as she was frightened of what the Australian Government would do as she had had a false passport”. She did not tell her pastor her story in 2003 when she was baptised under her true name because she was frightened and thought that they did not have the capacity to help her.
When asked why she had not sought the help of an migration agent listed in the Chinese newspapers she said that she “had heard from people in her church who had been unsuccessful in their refugee applications and so was hesitant to apply”. The Tribunal recorded that it then asked the applicant why she had decided to apply in this year. She said “she believed in God’s direction and had been praying on this”, that in a telephone conversation her son (in China) had asked her when he was going to be able to see her and that “by accident” she read an advertisement in the paper for a migration agent. She decided in May 2006 to see a migration agent.
The Tribunal recorded a discussion about the applicant’s identity. It put to her that the passport on which she had travelled (in another name) was genuine and that there was no evidence of tampering. It recorded that after first saying it was “made up” the applicant claimed it was a genuine passport in someone else’s name and that she had obtained it from the friend she had stayed with before leaving China. She claimed that when in Australia she found out that her brother and sister had paid the friend. She did not know if anyone was helping the friend. The Tribunal recorded “As the applicant had suggested that she did not know of the refugee process here in Australia, the Tribunal stated that if her friend was knowledgeable enough to be able to get her the false passport and an Australian visa, surely she would have told her about how to apply for refugee status in Australia. She said her friend did not know much about Australia; only how to get passports”.
The Tribunal recorded that “As to why she did not tell her story to anyone until she lodged her protection visa application, she said that she did not want to as she was frightened”. It also recorded the evidence of the applicant in relation to her identity, her claimed fear of persecution as a member of an underground church and for escaping arrest in China, her claims about her activities with the Local Church in China and how it differed from a registered church. The applicant also gave evidence about church attendance in Australia and responded to Tribunal questions about the Bible.
In its findings and reasons the Tribunal summarised the applicant’s claim to fear persecution as a Christian who had attended and participated in a local church. It found that there was a delay of “over 6 years” between the applicant’s arrival in Australia and her application for a protection visa. In making this finding the Tribunal stated that it had regard to the applicant’s written evidence to the Tribunal as to her arrival in Australia in August 1999, her oral evidence that she decided to lodge a protection visa in May 2006 and the statement in her review application that she was advised of rejection of the application on 23 May 2006.
In its findings and reasons the Tribunal referred to the applicant’s evidence in relation to “the reason” for this delay as follows:
The applicant’s oral evidence as to the reason for this delay was that she did not know about the refugee process here and had not dared to tell others of her true situation as she was very frightened of what may happen. She was frightened of what the Australian Government would do. It was at the end of 2005 or early 2006 that she had decided to make a protection visa application. It was then around 6 months before she lodged an application. As to this delay, the applicant said she trusted in God’s direction and prayed. She was also very sad about not being with her son. Then, by accident, she read an advertisement in the Chinese paper for an immigration agent. In early May 2006 she saw her migration agent.
The applicant also said she did not tell her story to her Pastor in 2003 when she believed it was very important that she be baptised under her true name. As to why she did not tell the Pastor, she again said she was frightened and that she thought the church would like to help her but did not have the capacity to do so.
The applicant’s oral evidence was that she had read the Chinese papers in Australia in order to find accommodation the day after her arrival here. The Tribunal asked why she had not sought out the help of one of the immigration agents listed in the paper. Her response was that she had heard from people in her church who had been unsuccessful in their refugee applications and so was hesitant to apply.
The Tribunal asked why her friend in China had not told her about how to apply for refugee status in Australia if she had been able to get her false passport with an Australian visa for a price and was also able to give her $1,000 for her to live on here. She said her friend did not know about these things.
The Tribunal then referred to three decisions of the Federal Court in relation to the relevance of delay in applying for refugee status (as discussed further below) and continued:
The Tribunal finds that the applicant’s explanations for the 6 year plus delay in making her protection visa application are implausible. The Tribunal finds that she would have known about the protection visa process for refugees and how to get assistance with this process either before she left China or shortly after her arrival in Australia. The Tribunal does not accept that the applicant did not apply because of fear of the Australian authorities or because she did not know about the refugee process. Rather, it was more because of fear that her application would be rejected for lack of substance and she may have had to return to China.
The Tribunal does not therefore accept the applicant’s reasons for the delay in lodging her application and draws an adverse inference on the credibility of the applicant generally.
The Tribunal found that the understanding of the Rector of the Anglican Church that the applicant had been in a very difficult situation as a Christian and member of a house church in China was merely “an understanding” and not first-hand knowledge and that it would appear to be based on the word of the applicant, whom the Tribunal had found to be lacking in credibility.
The Tribunal “therefore” found that the applicant was not a Christian who had belonged to the Jesus Church or to any other church prior to her departure from China in August 1999. It did not accept any of her evidence in that regard (including her claims to have evaded arrest) as truthful.
The Tribunal did accept that since her arrival in Australia the applicant had developed an affinity with Christianity. It accepted the documentary evidence she provided of her baptism and in support of her oral evidence as to attendance at churches and Bible classes. It found that she had “a good knowledge of the Bible and a strong belief in Christian values generally”. It found the evidence of the Rector, to the effect that he was confident that the applicant was a genuine Christian and that she had been a member of his church for the last two years, to be of “considerable weight”.
The Tribunal considered the application of s.91R(3) of the Migration Act 1958 (Cth). It found that the applicant’s conduct in getting baptised and attending church and Bible studies was “motivated by a desire to strengthen her refugee claims,” but accepted “that at some point, the applicant has developed a genuine affinity with Christianity and has now acquired a genuine belief in Christianity”. It was satisfied that “at least in recent time this has been an additional motivating factor in the applicant’s attendance at church and Bible study and that s.91R(3) does not apply to the more recent conduct”.
On this basis the Tribunal considered whether the applicant would have a well-founded fear of persecution as a Christian should she return to China. Given that it did not accept that she was ever a member of any underground church, it was not satisfied that she would take up a form of Christianity that was “underground”, as opposed to a state-recognised form of Christianity. It had regard to independent country information showing that Protestantism (which included Anglicanism, the applicant’s church of choice for the last two years) was one of the five State-recognised religions in China. The Tribunal found that the applicant did not have a well-founded fear of persecution should she return to China as a Christian.
The applicant sought review by application filed in this Court on 2 January 2007. She filed an amended application on 18 December 2007 on which she relies.
Religious activities in Australia
The first ground in the amended application is as follows:
The Tribunal failed to act judicially and thereby failed to afford the applicant procedural fairness in rejecting my claim to fear persecution upon refoulment by reason of information about my religious activities while in Australia being discovered by Chinese authorities.
Particulars
(a) It was not open to the Tribunal to reject my claimed fear of persecution without cogent material supporting a conclusion that the applicant’s commitment to a member of Jesus Church or any underground church was not genuine.
(b) The Tribunal rejected my claim of fear of persecution being well founded in circumstances should I return to China as a Christian.
This ground refers to the applicant’s activities in Australia. Insofar as the first particular takes issue with the Tribunal finding in relation to whether it was satisfied that the applicant had a genuine commitment to an underground church in China it is discussed further below. Insofar as this ground is intended to take issue with the Tribunal’s conclusion that it was not satisfied that the applicant would take up an underground form of Christianity if she returned to China (despite her religious activities in Australia), it has not been established that there was “no evidence” for such a finding or that the Tribunal failed to afford the applicant procedural fairness in a manner constituting jurisdictional error.
The Tribunal accepted that the applicant had developed an affinity with Christianity, that she had attended a particular church and that she had participated in Bible studies in Australia. It considered whether she would have a well-founded fear of persecution should she return to China as a Christian based on its acceptance of these claims. The Tribunal relied on its findings in relation to the applicant’s activities in Australia and also on country information in relation to recognised religions in China, including Protestantism. It cannot be said that there was no cogent material supporting the Tribunal’s conclusion in that respect.
The second particular to ground 1 takes issue with the Tribunal’s conclusion that the applicant’s claimed fear of persecution should she return to China as a Christian was not well founded. As set out above, the Tribunal considered the claims of the applicant in this respect based on her activities in Australia. It is not apparent that the applicant claimed or that the material before the Tribunal raised a clearly articulated claim (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1) to fear persecution on the basis that information about her religious activities in Australia may be discovered by Chinese authorities (as distinct from a claim that she feared that she would be persecuted as a “devoted Christian” as the Rector stated). There is nothing in the material before the Court to suggest that the applicant claimed to have engaged in “underground” church activities in Australia. She made no claim about any religious activities in Australia in connection with her protection visa application, except that the Lord’s “mercy allowed [her] worship God and spread Gospel freely in Australia” and that she sought “to use her own name openly to live a Christian life freely in Australia”.
The delegate noted the absence of detailed information regarding the applicant’s church attendance in Australia. In her adviser’s written submission to the Tribunal the applicant addressed her church attendance in Australia. She claimed that she had attended various Christian churches since her arrival, that she had been baptised and had attended Sunday services and engaged in other activities at a named Anglican Church since March 2004. She also claimed that “In order to spread Gospel to the Chinese community in [a named suburb] area we prayed long time”. She claimed that from about April 2006 the church had held a Mandarin bible class once a week in this area and that she had “been one of the key members from the beginning of this group”.
The applicant provided the Tribunal with copies of a baptism certificate and material (mostly in Chinese) relating to attendance at church and Bible classes in Australia as well as the letter of support from the Rector of the Anglican Church. As discussed above, that letter claimed that she would face “uncertainty” “as a devoted Christian” if she returned to China.
The Tribunal account of the hearing makes no reference to any claim by the applicant of involvement in an underground church in Australia, although she described her attendance at church here. Nor did it record that she feared persecution on this basis or on the basis of her religious “activities” in Australia as such, as distinct from a fear based on her Christianity.
The Tribunal considered whether the applicant had a well-founded fear of persecution in PRC on the basis of her Christianity, accepting her evidence of attendance at church and Bible studies in Australia and found, in particular, that her involvement with the Anglican church in Australia for the past two years should not be disregarded under s.91R(3). However on the basis of her activities in Australia it was not satisfied that she would take up an underground form of Christianity in China, as distinct from a state-recognised form of Christianity such as Protestantism. No failure to act judicially or failure to accord procedural fairness (and see s.422B) is established in the manner contended for in relation to the Tribunal’s consideration of the applicant’s activities in Australia.
Delay in applying for a protection visa
The particulars to ground 1 also take issue with the Tribunal’s rejection of the credibility or genuineness of the applicant’s claimed commitment to the Jesus Church or other underground church in China.
As set out above, the Tribunal found the applicant’s reasons for the delay in lodging her protection visa application to be “implausible”. It did not “accept” these reasons and drew an adverse inference as to her credibility generally. On this basis it found that she was not a Christian belonging to the Jesus Church or to any other Church prior to her departure from China in August 1999. It did not accept any of her evidence in that regard (including her claims to have evaded arrest) as truthful.
A number of issues arise in relation to these findings.
The applicant contended in ground 1 that there was “no cogent material” supporting the Tribunal’s conclusion that her commitment to the Jesus Church was not genuine. It is for an applicant to make out his or her case before the Tribunal. Hence it was for the applicant to put such material as was necessary before the Tribunal to persuade it that she had a genuine commitment to an underground church in China (see VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]). In this case the applicant put evidence before the Tribunal. If a Tribunal cannot be satisfied on the basis of the material put before it that an applicant’s claims meet the criteria for the class of visa for which the applicant had applied, it is not normally under any obligation to make further enquiries (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992). It has not been established that any obligation to enquire arose in the circumstances of this case.
While a decision-maker may fall into jurisdictional error if he or she “bases a decision upon a finding of fact which lacks any supporting evidence” (WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11]), as the Full Court of the Federal Court stated in WAJS at [12] it is difficult to apply such a principle to a rejection of evidence. Hence, if an applicant puts evidence before a Tribunal which is rejected or where a critical portion of the evidence is regarded by a Tribunal is implausible or illogical and hence not accepted, such a finding is “not a finding for which positive evidence [is] required” WAJS at [17]. The “no evidence” ground has no application to such circumstances. This is not a case in which it can be said that there was “no evidence” on the basis contended for in ground 1.
However, an issue arose in the course of the hearing as to whether the Tribunal had erred in the manner in which it had regard to the applicant’s delay in applying for a protection visa, in particular whether the Tribunal had relied solely on the applicant’s delay as determining the outcome of the application. The parties were given the opportunity to make further written submissions. The first respondent did so. The applicant did not.
The relevant Tribunal findings are as follows:
It is well established that delay in applying for refugee status is a relevant consideration for a Tribunal. In Selvadurai v MIEA & Anor, (1994) 34 ALD 346, the Tribunal had taken into account the fact that the applicant did not lodge his refugee status application until some 20 months after he had arrived in Australia and just prior to the expiration of his visa.
Justice Heerey said that this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the Applicant’s alleged fear of persecution. It was a rational consideration open on the material.
In Anandaraj Subramaniam v MIMA (unreported, Federal Court of Australia, Carr J, 10 March 1998) where the delay between arrival and application was three months, Carr J agreed with Heerey J as a matter of principle that the period of time which elapses between an Applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least the depth of an Applicant’s fear of persecution. His Honour went further and found that such a delay is a legitimate matter, which the Tribunal is entitled to take into account when deciding whether to believe an applicant. His Honour held that it was open to the Tribunal to draw an adverse inference from the fact that the applicant was claiming on the one hand to have suffered terrible treatment in Sri Lanka but on the other hand leaving it to virtually the last minute before applying for refugee status. A delay of some two months in applying for refugee status was also held to be a relevant matter in considering the Applicant’s genuineness in his application for protection in Makouei v MIMA (unreported, Federal Court of Australia, Wilcox J, 6 February 1998 at 6).
The Tribunal finds that the applicant’s explanations for the 6 year plus delay in making her protection visa application are implausible. The Tribunal finds that she would have known about the protection visa process for refugees and how to get assistance with this process either before she left China or shortly after her arrival in Australia. The Tribunal does not accept that the applicant did not apply because of fear of the Australian authorities or because she did not know about the refugee process. Rather, it was more because of fear that her application would be rejected for lack of substance and she may have had to return to China.
The Tribunal does not therefore accept the applicant’s reasons for the delay in lodging her application and draws an adverse inference on the credibility of the applicant generally.
In post-hearing supplementary written submissions the first respondent contended that this was not a case in which the Tribunal relied solely on the applicant’s delay. It was submitted for the first respondent that on a fair reading the Tribunal decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 271 – 272 and 291) the conclusion that the applicant was not credible was based not merely on her delay in applying for the visa, but also on the Tribunal’s rejection of her explanation for that delay as “implausible” and that this did not constitute jurisdictional error.
It was contended for the first respondent that as the applicant claimed to have hidden for a number of years after her arrival in Australia and to have been frightened of what may happen if she made an application for a protection visa, it seemed clear that the Tribunal’s view was that the applicant’s concern was the discovery of her unlawful residence in Australia and thus possible removal to China if her visa application was rejected. It was said to be open to the Tribunal to reason that this was the reason for the applicant’s delay in applying for the visa. On this basis it was contended that it was open to the Tribunal to regard its rejection of the applicant’s explanation as impacting on her creditability, because it necessarily meant that her explanation that she did not know about the refugee process was untrue. It was submitted that there was no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there were no possible explanations for the delay (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558).
The manner in which the Tribunal took into account the delay and the applicant’s explanation for it was said to be in accordance with Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 at [10] in which the Full Court of the Federal Court stated:
Finally, it is said the Tribunal erred in relying on the decision of Heerey J in Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 - to the effect that it is legitimate in assessing the genuineness, or at least the depth, of an applicant's claimed fear of persecution to take into account any delay by the applicant in lodging an application for a protection visa. The Tribunal member commented:
"In the present case the Applicant's delay in seeking Australia's protection, coupled with the fact that he has left and returned to Sri Lanka on three occasions after the events which he claims gave rise to his fear of being persecuted leads me to conclude that he does not have a genuine fear of being persecuted if he returns to Sri Lanka now or in the foreseeable future."
We see nothing wrong with this statement. Of course, the existence of delay does not end the inquiry. There may be a good reason for the delay, notwithstanding genuine and deep fears of persecution. In this case, the Tribunal did not suggest otherwise. We do not think the Tribunal misunderstood or misused the decision of Heerey J.
It was submitted that nothing said by the Tribunal indicated that it regarded the delay as the end of the enquiry or denied that there was a good reason for the delay. Rather, it was said that the Tribunal examined the reason given by the applicant for the delay, but rejected it and that no error was thereby revealed.
It was also contended that the cases of Subramaniam and Makouei cited by the Tribunal did not stand for any different principle to that enunciated in Thuraisamy, both holding that delay may be taken into account by the Tribunal, but that it is not the end of the enquiry. It was noted that in Makouei Wilcox J had agreed that a two month delay was a relevant matter in assessing the genuineness of an applicant’s claimed fears. On this basis it was contended that even if the Tribunal had regarded the fact of delay as relevant to the applicant’s credit, as well as its rejection of her explanation for delay, no error would be revealed.
The Tribunal referred to three decisions of the Federal Court at first instance. It is relevant to have regard to the approach taken in those and other cases as to the manner in which delay in making a protection visa application may be taken into account by a Tribunal.
In Selvadurai v Minister for Immigration and Ethnic Affairs and Another (1994) 34 ALD 347 the applicant sought a stay of proceedings to deport him pending the hearing of his application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision of the Refugee Review Tribunal.
Heerey J addressed the issue of whether the applicant’s evidence disclosed a serious question to be tried in relation to review of the Tribunal decision. His Honour’s account of the Tribunal reasons for decision reveals that the Tribunal had taken into account a number of factors, including the applicant’s past history, country information about the situation in the applicant’s home country of Sri Lanka and the fact that aspects of his claims about events in Sri Lanka were exaggerated and unlikely, in not accepting that the applicant had a well-founded fear of persecution for a Convention-based reason at the time he left his home Sri Lanka. It also considered the fact that the applicant did not lodge his application for a refugee status until some 21 months after he arrived in Australia, which was just prior to the expiration of his visa. There is no indication as to whether the applicant had provided any explanation for the delay. The Tribunal stated that it took into account “all the evidence”.
The Tribunal in Selvadurai also addressed the well-foundedness of any fear of persecution should the applicant return to Sri Lanka. It did not simply use the fact of delay to make a general adverse credibility finding against the applicant.
Heerey J considered a complaint by the applicant that the Tribunal had taken into account the fact that he did not lodge his application for refugee status until some 21 months after he arrived in Australia and just prior to the expiration of his visa. His Honour stated that this was a “legitimate factual argument and an obvious one” to take into account “in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution”. It appears that Heerey J was turning his mind to the question of the requirements of natural justice, as his Honour went on to state that “natural justice does not require every possible adverse inference from uncontested facts to be put to an applicant. A decision-maker does not have to provide an applicant with a draft of the proposed reasons for decision”.
In contrast in this case, the Tribunal did not simply take into account the delay in applying for a protection visa together with other factors in assessing the genuineness or depth of the applicant’s fear of persecution at the time she left China. Rather it referred to such delay in assessing her credibility generally. Selvadurai is not authority for the proposition that an adverse inference as to the applicant’s credibility generally can be drawn based on the fact of delay.
In Subramaniam v Minister for Immigration and Multicultural Affairs (unreported Federal Court of Australia, VG 310 of 1997, 10 March 1998) the Tribunal had accepted that an applicant from Sri Lanka had a subjective fear of persecution but found that it was not objectively well-founded. The applicant sought judicial review in the Federal Court. According to Carr J, it was in the context of these findings that the Tribunal referred to the fact that the applicant did not apply for a protection visa until his visitor visa was about to lapse. The Tribunal had regard to the fact that the applicant came to Australia on a three month tourist visa and did not seek protection until his visa was about to lapse. It stated that while this may not seem to be a long wait, it had regard to the fact that the applicant had claimed to have undergone terrible treatment in his home country, that he had come to Australia specifically to seek protection and most of his family was in Australia, but that he did not seek protection until his visa was about to lapse.
The Tribunal referred to Selvadurai in support of the proposition that delay in making the application was a “legitimate factor” to take into account in assessing the genuineness or at least the depth of fear of persecution and continued: “The Tribunal is of the opinion that this is determinative of the Applicant’s genuineness in his application for protection”.
In Subramaniam the Tribunal went on to find that it had a positive state of disbelief in relation to many of the applicant’s claims about past events based on specific issues in relation to aspects of those claims and independent country information. It also found that even if the applicant had a well-founded fear of persecution it would be reasonable for him to relocate.
Carr J acknowledged that there may appear to be an inconsistency in a Tribunal accepting that an applicant had a subjective fear of persecution and at the same time rejecting the “genuineness” of his protection visa application. However contrary to the position in this case, his Honour indicated that he regarded the Tribunal as proceeding on the assumption that the applicant had a subjective fear.
In the Federal Court the applicant took issue with the manner in which the Tribunal had determined the “credibility” issue, contending that it had misconstrued the decision in Selvadurai in drawing an adverse inference from his three months delay in applying for a protection visa. It was contended that such delay was not unreasonable. The applicant sought to distinguish Selvadurai on the basis that the delay in that case was 20 months.
Carr J pointed out that the question for the Court was not whether a three month delay was not unreasonable, but whether the Tribunal “was entitled to have regard to the delay and to draw an adverse inference from that delay”. His Honour expressed agreement with Heerey J in Selvadurai that “as a matter of principle” the “period of time” between arrival and application is a “legitimate matter to take into account when assessing the genuineness or at least the depth of an applicant’s fear of persecution” and then made the statement relied on by the Tribunal in this instance that he: “would go further and find that such delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant”. His Honour suggested that it was “open” to the Tribunal in that case to draw an “adverse inference” from the fact that the applicant claimed to have suffered terrible treatment at the hands of the authorities in his home country, but had left it to the “last minute” to apply for refugee status. In other words Carr J distinguished between having regard to delay in assessing the particular issue of the genuineness or depth of a fear of persecution and in assessing the truthfulness or credibility of an applicant generally, but suggested that delay was a legitimate matter to be taken into account in both contexts. However his Honour did not state that an adverse credibility finding could be based solely on delay.
In any event, as Carr J then observed, that was not the way the applicant had put his case in the Federal Court. Hence his Honour’s remarks in that respect are obiter. The submission for the applicant in Subramaniam was that when the Tribunal had expressed the opinion that “this is determinative of the applicant’s genuineness in his application for protection” (emphasis added) it could be seen to have been “applying Selvadurai as determinative of the present application”. Carr J rejected this contention, finding that the Tribunal was referring to the fact that as stated in Selvadurai, delay in making an application was a legitimate factor to take into account in assessing the “genuineness or depth of a fear of persecution”.
While Carr J stated that he was “inclined to think that when the Tribunal said ‘this is determinative’ it was referring to the matter of delay and that it meant it determined the applicant’s genuineness”, his Honour rejected the submission that the Tribunal had used the word “determinative” in its reasons as meaning “impel in a certain direction”. His Honour saw “considerable merit” in the argument that “in reality” the Tribunal’s credibility finding against the applicant was “not based solely on its assessment of the significance of delay”, noting that the observation in question was made in the context of other adverse findings with respect to the applicant’s credit. Moreover the Tribunal’s “key finding” was that the applicant’s fear was not objectively well founded. Hence the contention that the Tribunal misconstrued Selvadurai was rejected.
Subramaniam is not authority for the proposition that delay of itself warrants an adverse credibility finding, such as to be dispositive of the applicant’s protection visa application. Rather it suggests that delay is a legitimate matter to take into account in assessing credibility or “when deciding whether to believe an applicant” as well as when assessing the genuineness or depth of an applicant’s fear of persecution. It is notable that the Tribunal in Subramaniam had regard to the delay in light of the applicant’s claim about the terrible treatment he claimed he had experienced and his claim that he had come to Australia (where most of his family was) specifically to seek protection, yet he had not done so until his tourist visa was about to lapse, and also referred to other matters relevant to the applicant’s credit.
The other Federal Court case referred to by the Tribunal in this case is Makouei v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia VG 327 of 1997, Wilcox J, 6 February 1998). In that case the Tribunal had regard to a two month delay between an applicant’s arrival in Australia and his protection visa application. According to Wilcox J the Tribunal regarded this delay as “significant”. It stated (in similar terms to the opinion expressed by the Tribunal in Subramaniam) that it was of the opinion “that this is determinative of the applicant’s genuineness in his application for protection”.
Importantly, Wilcox J stated:
If indeed the Tribunal had acted on the basis that the delay in making the application concluded the question of whether the applicant genuinely had a fear of persecution of returned to Iran, then this would be a clear error of law. I do not disagree with the view that the delay is a relevant matter in considering genuineness but it certainly goes too far to say that it is determinative.
However while Wilcox J was of the view that the word “determinative” was an unfortunate one to be used, his Honour did not think the Tribunal in that case had in fact “meant to say the delay concluded the case”, given the seven pages of reasons that followed. Moreover the real issue in that case was said not to be the “sincerity” of the applicant in claiming a fear of persecution, but rather whether the claim was “well-founded in point of fact” and the “main attention” of the Tribunal had focused on this issue.
Hence, it is legitimate to take delay into account when assessing the genuineness or at least the depth of an applicant’s fear of persecution. The view has been expressed that it is also a legitimate matter to take into account in deciding whether to believe an applicant. However in Makouei Wilcox J made it clear that if the Tribunal had treated delay as determinative in relation to whether an applicant genuinely had a fear of persecution that would be a clear error of law. Similarly if a Tribunal treated delay in making a protection visa application as concluding the question of whether to believe an applicant, rather than as being a relevant factor to be taken into account, that would also be an error of law and not consistent with the approach taken in any of these cases.
The first respondent contended that the Tribunal had taken into account not only the delay but also the applicant’s explanation for it. This was said to be consistent with the decision of the Full Court of the Federal Court in Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1362.
Mr Thuraisamy arrived in Australia in March 1995 and applied for a protection visa in July 1997. He provided an explanation for this delay, as recorded by Lindgren J first instance (Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 812 at [29]). He stated that he did not immediately apply for refugee status as he was uncertain whether to do so and hoped the situation in his home country (Sri Lanka) “would soon be conducive to his return to that country” and therefore he continued to extend his temporary visas until no further extensions were granted and only then applied for a protection visa. The decisions of the Federal Court make no reference to any Tribunal consideration of such explanation.
At first instance ([1999] FCA 812 at [55]) Lindgren J found that the Tribunal had not erred in the reliance it placed on Selvadurai and had not proceeded on the incorrect basis that “in all cases, as a matter of law” delay was evidence of an absence of subjective fear of persecution, noting the Tribunal referred not only to the delay, but also to the applicant’s departures from and return to Sri Lanka on three occasions after the events complained of, as pointing to an absence of fear.
On appeal, the Full Court of the Federal Court observed (at [7]) that the applicant had failed because the Tribunal found that he had no genuine fear of persecution, considering that his behaviour since the events he claimed gave rise to his fear was inconsistent with his claimed fear of persecution. In that context the Court rejected a contention that the Tribunal had misunderstood the decision of Heerey J in Selvadurai “to the effect that it is legitimate in assessing the genuineness, or at least the depth, of an applicant’s claimed fear of persecution to take into account any delay by the applicant in lodging a protection visa” (at [10]).
The Full Court saw nothing wrong in the Tribunal’s statement that the applicant’s delay in seeking protection “coupled with” the fact of his travel from and to his home country on three occasions after the events he claimed gave rise to his fear, led it to conclude that he did not have a genuine fear of being persecuted. It was in that context that the Court observed that the existence of delay did not end the enquiry and that “there may be a good reason for the delay, notwithstanding genuine and deep fears of persecution” and that the Tribunal did not suggest otherwise.
It is notable that when the Full Court in Thuraisamy suggested that the existence of delay did not end the enquiry, in that there may be good reason for delay “notwithstanding genuine deep fears of persecution”, the Court did not go so far as to state that it was open to a Tribunal to take into account unsatisfactorily explained delay as determinative of whether or not an applicant had a genuine fear of persecution. Rather, the Full Court was indicating that, when assessing delay together with other factors in relation to the genuineness of a fear of persecution, it is relevant to take into account as part of assessing that factor not only the fact of delay but also whether there was a “good reason” for the delay. This recognised the fact that notwithstanding that an applicant may have a genuine fear of persecution there may nonetheless be an explanation for a delay in making a protection visa application consistent with such fear, just as there may be an explanation for other conduct consistent with a fear, of persecution.
Hence it is apparent that in Thuraisamy the Full Court was considering a Tribunal decision in which the Tribunal had had regard not only to the applicant’s delay in applying for a protection visa, but also to the circumstances of the applicant’s departure from his home country on four occasions and return on three occasions after the events which he claimed gave rise to his fear of being persecuted, in reaching a conclusion that he did not have a genuine fear of being persecuted. In other words, the delay was treated as relevant to, but not determinative of the genuineness of his fear of persecution.
Thuraisamy was not a case in which the Tribunal made a general adverse credibility finding based on delay (or based on delay and a failure to accept the reasons for such delay).
In the present case the Tribunal did not simply consider delay in assessing the subjective aspect of the “genuineness” or “depth” of the applicant’s claimed fear of persecution (cf VUAC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 925) or as one factor relevant to her genuineness. Rather it treated delay (in relation to which it did not “accept” posited explanations) as the sole basis for drawing an adverse inference as to the applicant’s credibility generally. It found on the basis of that adverse credibility finding that she was not a Christian in China and that it did not accept any of her evidence in that regard as truthful. In contrast to the situation in Selvadurai, Subramaniam, Makouei (and Thuraisamy) the Tribunal in this instance did not have regard to any matters specific to aspects of the claims about past events in her home country, such as, for example, any vagueness, lack of detail, inconsistency, implausibility of particular claims, country information or the conduct of the applicant in her home country. Nor did it have regard to the applicant’s level of knowledge of Christianity or her evidence about her activities and the situation of unregistered churches in China, as discussed at the hearing.
The Tribunal did not address the explanations for delay in the context of an assessment of the genuineness of the applicant’s claimed fear of persecution and whether such explanations were consistent with a fear of persecution. Rather, because it found the explanations “implausible”, it did not accept them. It then treated the delay in application for a protection visa as the reason for rejecting the credibility of the applicants’ claims about being a Christian and a member of an underground church in China as not truthful. Thus the Tribunal had regard to the delay as the reason for finding in effect, that these claims were fabricated, not simply as relevant to that issue or to the genuineness of her claim to have a fear of persecution.
As Rares J stated in SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2008] FCA 435 at [60] – [64] (albeit in the context of considering s.424A of the Act): “A conclusion of fabrication and elaboration of claims is substantively different from a finding that the Tribunal was not satisfied as to the claims” (at [60]) In SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 Rares J elaborated on this distinction in circumstances where a Tribunal s.424A letter had put to an applicant his migration history and explanation for delay in applying for a protection visa, suggesting the delay was relevant because it cast doubt on the genuineness, or at least the depth, of his claimed fear of persecution if he returned to his home country. However in the Tribunal decision in SZGGT the Tribunal had regard to the delay (together with other factors) in finding that the applicant’s claim to be a homosexual was not credible. Rares J was of the view that the relevance of delay as a reason for concluding that the applicant had fabricated a claim to be homosexual, as distinct from casting doubt on the genuineness or depth of his claimed fear of persecution, had to be explained to him under s.424A(1)(b). The importance of this case for present purposes is the clear distinction drawn between findings of genuineness (or depth) of a claimed fear of persecution and findings as to the credibility of an applicant (and hence in relation to fabrication of claims).
In this instance the Tribunal decision about the applicant’s claims about events in China turned on the question of her credibility. It is well established that provided a Tribunal’s findings are open to it for the reasons it gives on the material before it, credibility is a matter for the Tribunal (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272, Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at 423 and Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. However while the Tribunal purported to address the applicant’s explanations for the delay in making her protection visa application, its “findings” in that respect were expressed in terms of “implausibility”.
On a number of occasions judges of the Federal Court have expressed concern at the “confidence” with which some Tribunal members “find themselves able to make adverse findings on credibility on the basis that the evidence given by claimants is "implausible", "incredible" or "concocted" (in Thevendram v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 290 per Lee J at [26] – [27] and Merkel J at [59]). In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 the Tribunal had taken a number of factors into account in reaching an adverse credibility conclusion in relation to an applicant. Tamberlin and RD Nicholson JJ found that on the cumulative weight of the matters referred to by the Tribunal, in relation to specific aspects of the applicant’s claims, it was open to it to reach its conclusion as to credibility. However their Honours expressed concern in relation to some of the specific matters referred to by the Tribunal. In particular their Honours stated at [67]:
There is one aspect of the approach taken by the decision-maker in the present case which gives us some cause for concern. It is this. Where the question of credibility is determinative of a Tribunal decision, to simply assert that the Tribunal considers the applicant's account to be "implausible" or "highly unusual" does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.
In this instance the Tribunal found the applicant’s explanations for delay to be implausible. Given its subsequent reasoning on delay, while the explanations for delay were not aspects of the applicant’s underlying claims (cf W148/01A), it is relevant to note that in Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 Tamberlin J referred to the view he had expressed in W148/00A that referring to assertions as being “implausible” was an “unsatisfactory observation because it falls short of a positive finding” (at [111]) and left open the conclusion “consistent with a claim for refugee status on the basis that, while there may be a real chance of something happening, on the balance of probability, it did not happen” (at [111]). Tamberlin J found that while the use of the word “implausible” taken alone was not sufficient to amount to jurisdictional error (at [111]): “it is a matter that should be taken into account when considering the overall position in order to determine whether there has been a jurisdictional error by the Tribunal” (at [111]).
Moreover in this instance the Tribunal did not specifically address all the aspects of the applicant’s explanations. It addressed the issue of the time at which she would have acquired knowledge of the protection visa process for refugees and how to get assistance with this process. It did not address her explanation in her protection visa application that she did not know that a person in her particular situation (that is someone who came to Australia on a passport that was not her own) could apply for protection of the Australian government and could get a protection visa. Nor did it address her evidence that she had not sought the help of a migration agent because she had heard from people in her church who had been unsuccessful in their refugee applications and so was hesitant to apply (which might appear to indicate that she became aware of the refugee visa process at some time prior to the time at which she made a decision to apply). The Tribunal did not explain why it rejected the applicant’s oral evidence about her avoidance of others and chosen isolation after first arriving in Australia based on a claimed fear of what the government would do because she had come to this country on a false passport.
While the Tribunal did not accept that the applicant did not apply for a protection visa because of fear of the Australian authorities or because she did not know about the refugee process, it gave no reason for this explanation other than its general rejection of her explanations as “implausible”. On this basis it suggested that it was “more because” of her fear that her application would be rejected because of lack of substance (although it did not explain why) and that she may have to return to China.
Such general findings might be said to fall short of findings of implausibility in the sense of “beyond human experience of possible occurrences, that is to say, inherently unlikely” as discussed by Lee J (albeit in dissent in W148/00A at [21]), or inherent implausibility such that a decision-maker is unable to accept the accuracy of the claims as considered by the Full Court of the Federal Court in WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [17].
The relevance of the Tribunal statements in relation to implausibility are that they are the only matters that the Tribunal addressed in assessing the reasons for the delay in application which formed the sole basis for its rejection of the applicant’s credibility. This is not a case in which positive findings were made on other matters, such as aspects of the applicant’s substantive claims, such that it could be said that clear findings on matters other than delay were made by the Tribunal in support of the adverse credibility finding. Rather, having made a general statement of implausibility, the Tribunal rejected the applicant’s explanations for the delay. It then drew an adverse inference as to the applicant’s credibility from the delay and, without consideration of the substance of her claims, rejected all of her claims to have been a Christian in China and to have participated in a Local Church and the claimed consequences therefrom.
It is clear reading the Tribunal decision as a whole that it was the delay that formed the basis for its adverse inference as to the applicant’s credibility. The Tribunal commenced by referring to the fact of delay. It described the applicant’s oral evidence as to the reason for delay and then referred to Selvadurai, Subramaniam and Makouei in relation to the relevance of delay.
While the Tribunal found the applicant’s explanations for the delay to be implausible, the fact that the delay was the basis for the adverse credibility finding is apparent from its view that it did not “accept” the explanations. The suggestion that the applicant did not apply for a protection visa “more because of fear that her application would be rejected for lack of substance and she may have had to return to China” makes it clear that the basis for the adverse inference in relation to the credibility of the applicant generally was her delay in applying for a protection visa. In so doing the Tribunal made an error of law in proceeding on the incorrect basis that Subramaniam (and Makouei) established that delay of itself was sufficient as to ground an adverse inference as to the credibility of the applicant generally. The reasoning in Subramaniam does suggest (obiter) that the Tribunal may take delay into account in assessing an applicant’s credibility, but does not establish that it may be used to determine the issue.
It would have been open to the Tribunal to have regard to the delay (for which it did not accept explanations) as a factor relevant to the assessment of the applicant’s credibility. However it erred in treating it as concluding the question of whether the applicant fabricated her claims as to what occurred in China, just as it would have erred had it treated such delay as concluding the question of whether she genuinely had a fear of persecution based on past events in China. Hence the Tribunal made an error of law constituting jurisdictional error. The application should be remitted to the Tribunal for reconsideration according to law.
Whether failure to consider all the integers of the applicant’s claim
The second ground in the amended application is as follows:
The Tribunal constructively failed to exercise its jurisdiction and to afford the applicant natural justice in circumstances where the Tribunal did not consider all the integers of my claim.
Particulars
(a) I claimed “I suffered restrictions in China because of my religion activities underground church in China and if I am found to be a member of underground church in Australia the penalty I will get will be even worse because of my record.
(b) The Tribunal member failed to deal with my claim in circumstances where during my active of having attended [named] Anglican Church for the last two years for reason for my free practice of my religion beliefs in Australia that I am not able to return to China and are unwilling to return to China because of a well-founded fear. (sic)
Paragraph (a) of the particulars restates the applicant’s factual claims based on activities in China and also seems to suggest that she was or may be regarded as a member of an underground church in Australia. As indicated above, there is no evidence before the Court to suggest that she made such a claim about her activities in Australia. I note in that respect that the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The applicant claimed to have attended various churches in Australia including, for the last two years, an Anglican Church in a Sydney suburb. There is nothing in the material before the Court to establish that she raised a claim that this or any other church in Australia with which she was involved was equivalent to or would be considered an underground church in China or that her activities in Australia included membership of an underground church. The Tribunal addressed the question of whether she would have a well-founded fear of persecution should she return to China as a Christian based on her activities in Australia.
The second particular to this ground asserts that the Tribunal failed to take into account the applicant’s attendance at a particular Anglican church in Australia for the last two years. However the Tribunal addressed this claim. It accepted the letter of support from the Rector of that church as to the applicant’s attendance at the church and her genuine Christianity. It was in that context that the Tribunal formed the view that while the applicant had originally been motivated by a desire to strengthen her refugee claims in getting baptised and attending church, at some point she had developed a genuine affinity with Christianity and had acquired a genuine belief in Christianity. It accepted her claims in relation to attendance at the Anglican Church for the last two years. It did not disregard such later church-related attendance and activities in Australia pursuant to s.91R(3) of the Migration Act 1958 (Cth). However the Tribunal was not satisfied, for the reasons set out above, that the applicant would take up a form of “underground” Christianity if she returned to China on the basis of such activities. No jurisdictional error is established on either of the bases contended for in the particulars to ground 2.
Section 424A of the Migration Act 1958 (Cth)
Ground 3 in the amended application is as follows:
The Tribunal fell into jurisdictional error by acting contrary [to] s.424A of the Migration Act 1958 in failing to provide the applicant with particulars of the information that was a reason, or part of a reason, for affirming the decision under review.
Particulars of information
Information concerning the date of the application made by the applicant for a protection visa.
This ground was not elaborated on in the applicant’s written or oral submissions. The Tribunal addressed the issue of the applicant’s delay in applying for a protection visa and the explanation for such delay. In that context, while the Tribunal recorded the actual date of her visa application at the start of its decision, in its findings and reasons it had regard to the applicant’s “six year plus” delay in applying for refugee status. In so doing it stated: “Based on the written evidence of the applicant to the Tribunal on 5 October 2006, the Tribunal finds that the applicant arrived in Australia in August 1999. Her oral evidence to the Tribunal was that she decided to lodge a protection visa application in May 2006. Her application to this Tribunal states that she was advised of the rejection of her protection visa application on 23 August 2006. The Tribunal therefore finds that there was a delay of over six years between the applicant’s arrival in Australia and her lodgement of a protection visa application”.
The exception to the s.424A(1) obligation in s.424A(3)(b) relating to information that the applicant “gave for the purpose of the application for review” does not apply to information in the applicant’s protection visa application as such (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27). It is not disputed that the information concerning the actual date of the protection visa application was not information that the applicant gave to the Tribunal as part of the review application (for example in oral evidence at the hearing). Hence it would not be in s.424A(3)(b).
However it is necessary to consider whether the date of application “would” itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” within s.424A(1).
Insofar as it is relevant to have regard to the Tribunal reasons for decision, the Tribunal finding that referred to a delay of “over six years” was said to be based on information other than the date of application for a protection visa. The Tribunal did not calculate the delay based on the actual date of lodgement of the protection visa application (being information in the protection visa application), but rather referred generally to a delay of “over six years” based on the applicant’s written and oral evidence to it about the time of her arrival in Australia and the time of her decision to lodge a protection visa application and the date she was advised of the rejection of her application as set out in her review application. (cf SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [253] – [254] per Allsop J and [171] per Weinberg J and SZGGT). The information the Tribunal referred to in that respect was information the applicant gave to it. Where the information given to a Tribunal by an applicant does in fact provide a basis for its finding, s.424A should not apply to other information consistent with but not necessarily part of the basis for the finding in question.
There is, however, recent authority in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 to the effect that the operation of s.424A(1) is to be determined “in advance – and independently – of the Tribunal’s particular reasoning of the facts of the case” as Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (at [17]) indicated by the use of the future conditional tense (“would be”) in s.424A(1) in (and see MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319 and cases cited therein). As Heerey J stated MZXBQ, SZBYR “essentially says that a court must assess the "information" in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal” (at [27]). His Honour distinguished (at [29]) between matters of such relevance and information “merely going to credibility” on the basis that a lack of credibility in itself “does not necessarily involve rejection, denial or undermining of an applicant’s claims” (and see SZBYR at [17]).
On this basis the date of the applicant’s application for a protection visa would not constitute “information” that would be the reason or part of the reason for affirming the decision as it does not “contain in [its] terms a rejection, denial or undermining of the [applicant’s] claims to be [a] person … to whom Australia owed protection obligations” (SZBYR at [17]).
Moreover s.424A(1) does not apply to “the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps” (SZBYR at [18]). Hence the Tribunal’s subjective reasoning process by reference to the delay between the applicant’s time of arrival in Australia and her decision to lodge a protection visa application does not constitute “information” for the purposes of s.424A of the Act.
However, as discussed above, as a jurisdictional error has been established the matter should be remitted for reconsideration according to law.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 27 June 2008
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