SZKNB v Minister for Immigration

[2007] FMCA 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKNB v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2012

MIGRATION – Review of Refugee Review Tribunal decision – adverse credibility finding – temporal operation of s.424A of the Act not limited to the pre-hearing stage – no jurisdictional error – application dismissed.

Migration Act 1958, ss.424A, 424A(1), 424A(2), 424A(3), 425, 422B

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; [2005] HCA 24
SZJSL v Minister of Immigration and Citizenship [2007] FCA 1269
SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZGBT v Minister of Immigration and Citizenship [2007] FCA 565
VAF v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant: SZKNB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1220 of 2007

Judgment of: Nicholls FM

Hearing date: 24 August 2007

Date of Last Submission: 24 August 2007

Delivered at: Sydney

Delivered on: 10 December 2007

REPRESENTATION

Counsel for the Applicant: Mr J Gormley

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 16 April 2007 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1220 of 2007

SZKNB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act1958 (Cth) (“the Act”) on 16 April 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 22 March 2007 and notified to the applicant on 23 March 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The first respondent has filed a bundle of relevant documents in this matter (the Court Book (“CB”)) from which the following relevant background can be discerned:

   1)17 January 1998: the applicant, a citizen of the People’s Republic of China (“China”) arrived in Australia.

   2)18 August 1998: he applied for a protection visa.

   3)15 October 1998: a delegate of the first respondent refused to grant a protection visa.

   4)18 November 1998: the applicant sought review by the Tribunal.

   5)20 May 1999: the Tribunal (differently constituted) affirmed the decision not to grant a protection visa (CB 1 to CB 10).

   6)18 December 2006: the applicant again applied for a protection visa (CB 14 to CB 36).

   7)8 January 2007: this application was refused (CB 57 to CB 68).

   8)9 January 2007: the applicant sought review by the Tribunal (CB 69 to CB 73).

   9)2 March 2007: the applicant (with his advisor) attended a hearing before the Tribunal (CB 97).

   10)6 March 2007: the Tribunal wrote to the applicant inviting him to comment on certain information (CB 102 to CB 104).

   11)22 March 2007: the Tribunal affirmed the decision under review (CB 119 to CB 134).

Applicant’s claims to protection

1. Before the Tribunal, the applicant claimed that he feared persecution by the authorities in China because of his religion. He had founded and been a member of an underground Catholic church. He said he had been detained, and mistreated. He was afraid that he would face persecution on return because he also had problems with China’s family planning laws.

Tribunal’s findings

1. The Tribunal found:

   1)The applicant’s delay in making his first application for a protection visa raised serious doubts about the genuineness of his fear of persecution (CB 130.7).

   2)The significant delay in seeking judicial review of the Tribunal’s earlier decision of 19 May 1999, and his remaining in Australia unlawfully, raised further doubts about the genuineness of his fear of persecution as well as the applicant’s credibility (CB 130.8).

   3)The inconsistency between the applicant’s claims as to when he and his brother established their church, the inconsistencies in the applicant’s evidence in this regard, and that his explanations for this inconsistency were not persuasive, raised further doubts about his claims and his credibility generally (CB 131.4).

   4)There was significant delay in the applicant providing documents in support of his claims. It found his explanations for this unconvincing, and that this also raised serious doubts about the veracity of his claims and his credibility generally (CB 132.3).

   5)While the Tribunal accepted that the applicant had been baptised in November 2006, it found that this was done for the purposes of enhancing his application for a protection visa and disregarded that activity pursuant to s.91R(3) of the Act. It further considered that the delay in baptism raised serious doubts about his claims and his credibility (CB 132.7).

   6)The Tribunal found in light of its concerns about the applicant’s credibility that the applicant had fabricated his claims to support the application for a protection visa, and rejected his claim to have come from a Catholic family and to have been dedicated to Christianity, or to have been a member of an underground Catholic Church, or that he had ever been in difficulty with authorities as a result (CB 132.8).

   7)The Tribunal rejected the claim that if the applicant were to return to China he would continue to be involved in any Christian-related activities, and found that there was not a real chance that he would be persecuted in China on the basis of religion and/or religious activities (CB 133.2).

   8)The Tribunal rejected the applicant’s claim that his family had been ill-treated during the Cultural Revolution given its credibility concerns with the applicant (CB 133.3).

   9)Again for adverse credibility reasons it did not accept his claim that his wife was forced to undergo termination of a pregnancy under China’s family planning laws (CB 133.4).

   10)In the alternative, it found that in any event, that the “one child policy” (law enacting this policy) was a law of general application, and that harm consequential to that policy alone did not amount to the applicant becoming a refugee (CB 134.3).

   11)In all therefore, the Tribunal did not accept that the applicant had suffered any Convention related harm, nor did it accept that there was a real chance of Convention related harm befalling the applicant if he were to return to China in the reasonably foreseeable future (CB 134.6). On this basis, the Tribunal found the applicant did not have a well-founded fear of Convention related persecution, and affirmed the decision under review.

2. At the hearing before the Court, the applicant was represented by Mr J Gormly of Counsel. The first respondent was represented by Mr T Reilly of Counsel. I also have before me written submissions for the applicant, and the respondent’s written submissions prepared by Mr Riley.

Application to the Court

1. At the hearing, Mr. Gormly was granted leave to file an amended application. The grounds are:

   “That the decision of the Refugee Review Tribunal (‘the Tribunal’) was affected by jurisdictional error in that the Tribunal failed to comply with the requirements of s.424A (1) & (2) of Migration Act 1958:

   1.  In relation to the Departmental and other information concerning the history of the applicant’s prior application for a protection visa that:

   a. on 18 August 1988 the applicant first applied for a protection visa having arrived in Australian on 17 January 1988;

   b.  on 18 November 1988 the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (the first Tribunal);

   c. the first Tribunal invited the applicant to a hearing and the applicant did not attend the hearing;

   d.  on 19 May 1999 the first Tribunal affirmed the delegate’s decision not to grant a protection visa;

   e.  the applicant remained unlawfully in Australia following the first Tribunal’s decision;

   f.   on 25 July 2005 the applicant sought judicial review of the first Tribunal’s decision.

   2.  The information in 1 a. – c. above was used by the respondent Tribunal (the second Tribunal) as part of the reason for affirming the decision under review.

   Particulars

   ·    The information was used by the Tribunal in its finding that the delay in lodging the initial application for a protection visa and pursuing the matter raised serious doubts about the genuineness of the applicant’s fear of persecution.

   3.  The information in 1 d. – f. above was used by the second Tribunal as part of the reason for affirming the decision under review.

   Particulars

   ·    The second Tribunal found the significant delay in seeking judicial review of the first Tribunal’s decision and the applicant’s remaining in Australia unlawfully raised further doubts about the genuineness of the applicant’s fear of persecution as well as his credibility.

   4.  The information in 1 a. – f. and its significance was known by the second Tribunal prior to the hearing and the second Tribunal did not give written notice prior to the hearing of its intention to use the said information as part of its reasons for its findings against the applicant.

   5.  The information in 1 a. – f. above was not given by the applicant for the purposes of his application for review and therefore s.424A (3) (b) does not apply.”

Applicant’s submissions

1. The applicant’s submission is that the Tribunal did not comply with its obligation pursuant to s.424A in that prior to the hearing it did not give notice in writing to the applicant of the relevance of certain information which would then have been the reason, or part of the reason, for the Tribunal affirming the delegate’s decision. That information is said to be that as set out at (a) – (f) in the amended application.

2. The applicant concedes that the Tribunal did write to the applicant pursuant to s.424A after the hearing, but submits that this letter should have been sent prior to, and not after, the hearing. The Tribunal’s failure to do so means that it did not comply with the requirement in s.424A (1).

3. The applicant relies on what was said by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [17]–[19]. In particular, the applicant contends:

   1)With reference to SZBYR at [17]: “The use of the future conditional tense (‘would be’) rather than the indicative strongly suggests that the operation of s.424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case.”

   2)With reference to SZBYR at [19], the structure of Division 4 of Part 7 of the Act requires the issuing of the relevant notice before a hearing and in circumstances where the sequential operation of ss.424A, 424B, 424C(2) and 425(2) must be taken into account:

   “While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s.424A before a hearing, no such procedure exists for the invocation of that section after a hearing.” (Emphasis original; citations omitted)

   3)With reference to SZBYR at [19], the purpose of s.424A is to secure a fair hearing for the applicant. That, per McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; [2005] HCA 24 (“SAAP”) at [56] (but see also [50] to [55]), s.425 contemplates that the Tribunal would have given the applicant adverse material and invited comments before the applicant is invited to a hearing pursuant to s.425 (noting that per McHugh J this did not exhaust the Tribunal’s obligation pursuant to s.424A).

4. Mr Gormly submitted that there is an apparent conflict between what the High Court said in SZBYR and the majority in SAAP over the time for compliance with s.424A. The resolution is that what the Court said in SZBYR at [17] (“the use of the future conditional tense (‘would be) rather than the indicative strongly suggests the operation of s.424A(1)(a) is to be determined in advance…”) needs also to be seen in light of what McHugh J. said in SAAP at [56]:

   “In addition, s.424A ‘is enlivened only at the point at which the RRT has information and has determined that the information would be the reason or part of the reason for affirming the decision’ under review. The Tribunal may not realise that information that it has obtained from a third person will form the reason or part of the reason for affirming the decision until after the applicant has appeared before it. Information obtained before the hearing may become the reason or part of the reason for affirming the decision only after an applicant has responded to questions at the hearing.” (Citations omitted)

5. The applicant’s position is that the Tribunal used information (as set out in (a) to (c) of the amended application) to find that the delay in lodging the initial application for a protection visa, and the delay in pursuing the matter, raised serious doubts about the genuineness of the applicant’s fear of persecution. Further, that it used information (as set out in (d) to (f) of the amended application) to find that the delay in seeking judicial review of the earlier Tribunal’s decision, and the applicant remaining unlawfully in Australia, raised doubts about the genuineness of his fear of persecution, as well as his credibility.

6. The applicant’s contention is that this information was sourced from the first respondent’s Department’s files and not from anything said by the applicant or his agent submitted to the Tribunal such as to come within the exception contained in s.424A(3)(b) from the requirements set out in s.424A(1).

7. This information, and its relevance to the decision, was known to the Tribunal prior to the hearing and should therefore, have been put to the applicant in writing at that time both in fulfilment of the Tribunal’s obligation pursuant to s.424A(1), and for the purpose of a fair hearing for the applicant who would have known of the significance of this information to the Tribunal’s decision prior to the hearing (this was with reference to what the High Court said, in part, in SZBYR at [19]).

Consideration

1. In SZJSL v Minister of Immigration and Citizenship [2007] FCA 1269 Stone J was presented with a similar argument (see [29]). Her Honour considered the issue in light of SAAP and SZBYR at [21]-[28]. Her Honour noted (at [29]) that the circumstances in SAAP and SZBYR differed from the circumstances before her in that in both cases before the High Court, no notice was given pursuant to s.424A. But that in the case before her Honour, as is the situation in the case before the Court now, notice was given after, rather than before, the hearing. Her Honour noted (at [29]-[30]), that: “there may be merit” in the applicant’s submissions that compliance with s.424A is mandatory, that it requires the notice under that section to be given before the hearing held pursuant to s.425, and that the giving of notice cannot cure the omission to give notice before the hearing. But her Honour went on to determine the matter before her on the basis that the applicant before her had “assumed but did not demonstrate” that the information given in the initial visa application, and in a further statement to the Tribunal, would be “the reason or part of the reason for affirming the decision under review” (with reference to SZBYR at [17]).

2. The application before the Court now does not in my view succeed to the extent that the applicant relies on what was said in SZBYR at [17]. Specifically, the applicant argues, with reference to what the High Court said in relation to the use of “the future conditional tense,” that SZBYR supports the proposition that the obligation pursuant to s.424A should be discharged prior to a hearing (in circumstances where the information from which the obligation arises is already known to the Tribunal). With respect, I do not see that paragraph [17] (on its own) supports this proposition. The Court was concerned with the “statutory criterion” set out in s.424A(1)(a). The plain words used by the Court were that “the operation of section of s.424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case.” I do not see the use of the words, “in advance” as saying that it must be done in advance of the hearing. It is in advance “of the reasoning on the facts of the case.” Plainly the relevant facts of the case cannot be determined by the Tribunal, nor can it properly make findings in relation to such facts, prior to the hearing, which is plainly conducted for, amongst other reasons, the purpose of adducing further information and evidence in support of an applicant’s claims.

3. The applicant also relies on what the High Court said in SZBYR at [19]. (Taking into account the sequential operation of relevant sections in Division 4 of Part 7 of the Act.) I do not see however, with respect, that what the High Court set out at [19] provides authority for the proposition put forward by the applicant now.

4. Firstly, as submitted by Mr Reilly, the Court’s comments at [19] would suggest a temporal limitation on the operation of s.424A as being before, rather than after the hearing. But this should be seen in light of what the Court itself said at [13]-[14] in the same judgment.

5. At [13]:

   “A majority of this Court in SAAP determined two points about the operation of s.424A: first, that its effect is mandatory, in that a breach of the section constitutes jurisdictional error; second, that its temporal effect was not limited to the pre hearing-stage. However, these propositions do not determine the outcome of this case, and attention must be given to the particular terms of par (a) of s.424A(1) and its operation upon the present facts.” (Citations omitted)

6. The Court then went on to distinguish the circumstances before the Court in SAAP and before it in SZBYR (see [14]). In particular, the Court noted that in SAAP, the relevant “information” was evidence of the appellants’ daughter which had been given in their absence. Whereas in SZBYR, the “information” consisted of the applicant’s “own prior statutory declaration.” The Court emphasised (at [14]): “it follows from SAAP that Parliament has determined that, if s.424A is engaged, only written notice will suffice.” The Court’s comments therefore at [19] that this must be seen in light of the statement that, simply that SAAP has not been “overruled.” Including, relevant to the point that the temporal effect of s.424A was not limited to the pre-hearing stage. This leads to the reminder that the circumstances in SAAP were that the majority held that there had been a breach of s.424A by the Tribunal by not writing a letter to the applicant seeking comments on “relevant” information after the hearing.

7. The applicant also relies on SZBYR at [19] for support for his central proposition by way of the statement that the purpose of s.424A is to secure a fair hearing.

8. In my view, this again needs to be seen in the context of the circumstances before the Court. Plainly, each of the paragraphs [16]–[19] was directed to the particular terms of s.424A “and its operation upon the present facts” (at [13]), and the applicant’s submissions both written and oral before the High Court. What is set out at [16]–[19] is: “four points must be noted about this submission” (at [16]). The reasoning at [19] was plainly directed to the circumstances before the Court in SZBYR. In this sense the reference to the “anomalous temporal operation” arises from the argument put forward by the applicants, that is, that s.424A is engaged by any material that contained, or tended to reveal, inconsistencies in an applicant’s evidence.

1. In these circumstances, the Court said that if the applicants “be correct” (at [19]), it was only after the hearing that the Tribunal could have provided any written notice of relevant passages in the applicant’s statutory declaration from which the inconsistencies were said to arise when compared with the applicant’s oral evidence given at the hearing. It was in this context that, the Court therefore said that if the purpose of s.424A was to “secure a fair hearing of the appellant’s case,” that “it seems odd that its effect would be to preclude the Tribunal from dealing with such matters during the hearings itself.” That is, that if such inconsistencies arise in circumstances where the inconsistencies can only be seen to have arisen during the hearing, or at the hearing, then the place and time to deal with such inconsistencies is at the hearing itself.

2. In my view, and with respect, this is consistent with what the High Court said in SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”) and in particular at [35] and [44]. That is, that a Tribunal would fail to accord an applicant procedural fairness where the applicant is not given sufficient opportunity to “give evidence and present arguments relating to the issues arising in relation to the decision under review” (at [33]; emphasis original). In SZBEL, the Tribunal was held to not have accorded procedural fairness to the applicant because it did not give sufficient opportunity to the applicant in relation to determinative issues arising in relation to the decision under review, in circumstances where the Tribunal took no step to identify any issue dispositive of the applicant’s case beyond the issues that “the delegate considered dispositive” (at [33]).

3. Further, I did not see that the proposition put forward by the applicant is supported by reliance on what McHugh J said in SAAP (at [56]). The applicant’s proposition is that the obligation pursuant to s.424A, in circumstances where the relevant information is available to the Tribunal, and relevant to the Tribunal’s consideration, arises when such information would be the reason, or part of the reason, for affirming the decision that is under review. (In the current case that this was before the hearing.)

4. With respect, I did not see his Honour’s analysis (at [56]) supporting the applicant’s contention as to the temporal application and location of s.424A. With respect, I understand his Honour to be plainly addressing a situation where: “[t]he Tribunal may not realise that information it has obtained … will form the reason or part of the reason for affirming the decision until after the applicant has appeared before it.” That is, “[i]nformation obtained before the hearing may become the reason or part of the reason for affirming the decision only after an applicant has responded to questions at the hearing.” It was in relation to these circumstances that his Honour, in my respectful view, said that it would be “contrary to the requirements of procedural fairness if the Tribunal were not to invite the applicant to comment on such information,” purely on the basis that it had previously invited the applicant to appear before it.

5. I do not see this as standing for the proposition, as submitted for the applicant now, that where relevant information which is obtained before the hearing, and may become the reason or part of the reason for affirming the decision at that time, the Tribunal must, and can only, send the s.424A letter in compliance with its s.424A(1) prior to, and not after, the hearing. The relevant circumstances before the Court in SAAP, and what was being dealt with at [56], was focused on information that arose during or after the hearing. I do not see what was said, even by reference, that a temporal limitation existed in the operation of s.424A(1) where the information arose before the hearing.

6. In one sense it could be said that under SZBYR, the position as outlined in SAAP in relation to the temporal application of s.424A was clear. The obligation could be met both before and after the hearing. This has been applied in matters on appeal from this Court in the Federal Court. See, for example, SZGBT v Minister of Immigration and Citizenship [2007] FCA 565 per Buchanan J at [6], [13] and [14].

7. But for the reasons set out above I do not see that SZBYR “overturned” what was determined in SAAP, relevantly, that the temporal effect of the operation of s.424A was not limited to the pre-hearing stage.

8. The Tribunal did send a letter pursuant to s.424A after the hearing. This is not contested by the applicant. Nor does the applicant say that the letter did not address, and comply, with the obligation in s.424A(1) other than in the temporal sense. On this basis therefore, the sole complaint in the application before the Court is not made out. The application is dismissed on this basis.

Additional, but separate basis for dismissal

1. In my view, and separate and independent to the reasoning set out above, the application should also be dismissed for the following. I accept Mr Reilly’s submission that the “information” that the applicant claims falls within, and enlivens, the obligation pursuant to s.424A (1), and as particularized in the amended application (at (a) to (f)), is not “information” as understood with reference to SZBYR at [17].

2. Mr Reilly submitted that the Court in SZBYR (at [17]) gave s.424A a “rather narrow operation.” This submission is consistent with what the High Court said at [22] where it referred: to the “limited scope of s.424A,” and: “the proper meaning of the word ‘reason’ in s.424A(1)(a).” Mr Reilly submitted that consideration whether information falls within s.424A (with reference to [17]) is to be determined in advance, and independently of the Tribunal’s particular reasoning. Therefore the mere fact that information that is objectively neutral could be used in a future reasoning process against the Tribunal is not enough. He stressed that the information must in its terms constitute a: “rejection, denial, or undermining” of the applicant’s claims to be a person to whom Australia owed protection obligations (with reference to SZBYR at [17]). When looked at in this way, he submitted, that once the “limited scope of s.424A is appreciated” and “the proper meaning of the word ‘reason’ in s.424A(1) is discerned,” then none of the “information” referred to in the amended application (and paragraph 14 of written submissions), in their terms, constitutes a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owes protection obligations.

3. The case before the Court now presents circumstances different from those in SAAP and SZBYR in the sense that both of those cases involved situations of inconsistency (in the case of SAAP, inconsistency between the evidence of a witness and the appellants given at the hearing, and in the case of SZBYR, inconsistency in the applicant’s statutory declaration and evidence given at the hearing).

4. The “information” relied on by the applicant in this matter is essentially, a series of dates on which certain events were said to have occurred. Mr Reilly characterises these events as being “historical” matters which: “do not constitute in their terms a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owes protection obligations.” The submission was that none of these items of “information,” “in their terms,” had bearing on the applicant’s claims to protection.

5. That the applicant arrived in Australia on a particular date and subsequently applied for a protection visa on another date [(a)], that he sought review of the delegate’s decision by the Tribunal on a particular date [(b)], that he was invited to a hearing before that Tribunal and he did not attend [(c)], that the applicant remained unlawfully in Australia following the first Tribunal’s decision [(e)], and that he sought judicial review of the earlier Tribunal’s decision on 25 July 2005 [(f)], do not contain in their terms a rejection, denial or undermining of the applicant’s claims to be a person whom Australia owed protection obligations.

6. That the Tribunal affirmed the delegate’s decision not to grant a protection visa [(d)] is, however, on its face a rejection of the applicant’s claim to be a person to whom Australia owed protection obligation. On the other hand, that this occurred on a particular date, as is set out at [(d)] in the amended application is not.

7. In my view however, the issue is resolved against the applicant by reference to what the High Court said in SZBYR at [18]. The High Court endorsed what was said in VAF v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [476]-[477] per Finn and Stone JJ that the word “information”:

   “does not encompass the ]tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”

8. The Tribunal affirmed the decision under review because it could not be satisfied that the applicant was a person to whom Australia owed protection obligations. The Tribunal consistently made adverse findings as to the applicant’s credibility.

9. The Tribunal considered the applicant’s claims as ultimately put before it and found (see CB 131.3 to CB 133.2) that the applicant’s claims, and evidence in support, were variously inconsistent, implausible and unpersuasive. It found some of his explanations to be unconvincing. Ultimately, it was the adverse view that the Tribunal took of the applicant’s claims and evidence that led it to find the applicant’s claims to be lacking in credibility.

10. A part of this was its subjective appraisal, that is the inconsistency that it found between the applicant’s claimed fear and the applicant’s actions, or more particularly his inaction for lengthy periods since his arrival in Australia and relevantly seeking protection, and the prosecution of the matter through the Minister’s department, the Tribunal and ultimately the Court.

11. It was with reference to these “historical” dates ([a] to [f]) that the Tribunal said (CB 130.7):

    “In light of those comments and in consideration of the evidence as a whole, the Tribunal finds that the delay in lodging the initial application for a protection and pursuing the matter raise serious doubts about the genuineness of the applicant’s fear of persecution.  The significant delay in seeking judicial review of the Tribunal’s decision on 19 May 1999 and his remaining in Australia unlawfully raise further doubts about the genuineness of the applicant’s fear of persecution as well as his credibility.”

12. With reference to what was said at [18] of SZBYR, such disbelief, such subjective appraisal arising from the inconsistency between his pressing of claims before the Tribunal, and his earlier actions of delay and inaction and its view that this was inconsistent with a “genuine” fear of persecution and reflected adversely on his credibility, do not constitute “information” for the purposes of s.424A.

13. For this reason also, the application should be dismissed.

Conclusion

1. The applicant, with the benefit of legal assistance, has put one complaint (although expressed over a number of grounds in the amended application) before the Court relating to the temporal application of s.424A of the Act. For the reasons (and the separate bases) set out above this ground is not made out. Accordingly, the application is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  10 December 2007