BDW15 v Minister for Immigration
[2017] FCCA 2742
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDW15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2742 |
| Catchwords: MIGRATION – 15-month delay between Tribunal hearing and decision – delay inordinate – applicant denied a fair hearing by reason of that delay – constitutional writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.360(1), 425(1) |
| Cases cited: AKD16 v Minister for Immigration & Anor (2016) 315 FLR 228 |
| Applicant: | BDW15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1441 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 10 October 2017 |
| Date of Last Submission: | 10 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Wood |
| Solicitors for the Applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the First Respondent: | Mr A. Yuile |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
An order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 2 June 2015.
An order in the nature of a writ of mandamus issue directing the
second respondent to hear and determine the application for review according to law.
The first respondent pay the applicant’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1441 of 2015
| BDW15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The issue in this case was whether the Administrative Appeals Tribunal (“the Tribunal”) denied the applicant procedural fairness or otherwise failed to perform its statutory function when the Tribunal delayed for over 15 months between the hearing of this case, that involved an assessment of credibility based on demeanour, and the handing down of its decision.
Ultimately the Tribunal determined the applicant’s application for a protection visa adversely to the applicant. The question is whether that decision can stand.
Synopsis
For the reasons that follow, in my judgment the Tribunal’s decision cannot stand. It was vitiated by jurisdictional error. I order the issue of constitutional writs. The Minister must pay the applicant’s costs of this proceeding.
Short factual narration
The relevant chronological sequence of events may be shortly stated. They were as follows –
a)the applicant filed his application for the review of the delegate’s decision on 6 September 2013;
b)on 23 January 2014 the applicant was invited to appear before the Tribunal on 20 February 2014, which invitation the applicant accepted;
c)the Tribunal convened the hearing on 20 February 2014 and between 1.14 p.m. and 4.01 p.m. the Tribunal heard evidence from the applicant;
d)the Tribunal gave the applicant until 6 March 2014 within which to provide further material and that date was subsequently extended to 13 March 2014;
e)the applicant provided material to the Tribunal on 13 March 2014;
f)nothing took place relevant to this matter between 14 March 2014 and 13 April 2015;
g)
on 14 April 2015 the Tribunal invited the applicant to appear at a second hearing scheduled for 12 May 2015 and invited the applicant to give evidence and present arguments about
“recent political changes in Sri Lanka and how they may be relevant”to his protection claims;[1]
h)the applicant’s agent provided further country information;
i)the Tribunal conducted a second hearing on 12 May 2015 commencing at 3.37 p.m. and finishing at 4.33 p.m., the majority of which was devoted to hearing from the applicant’s siblings and about new country information;
j)at the hearing conducted on 12 made 2015, the Tribunal asked the applicant whether he wanted to say anything else about his protection claims to which he answered in the negative; and
k)on 2 June 2015 the Tribunal gave its decision refusing the applicant’s protection visa.[2]
[1] Court book filed 4 August 2015 at p.339.
[2] Court book filed 4 August 2015 at pp.514-537.
Fifteen months elapsed between the date on which the first hearing took place at which substantive issues relevant to the applicant’s protection visa were agitated and the date on which the Tribunal handed down its decision.
Catherine Jane Farrell, the solicitor retained by the applicant, exhibited to her affidavit affirmed 26 September 2017 a transcript of both hearings before the Tribunal. Having read the transcript of both hearings, I have been able to form a view about –
a)the nature of the member’s questions;
b)the way the questioning proceeded;
c)the subjects canvassed;
d)the way the member pursued various answers;
e)the way the member left unanswered questions where they fell;
f)commentary given by the member prior to pressing a question, such as –
I’m not saying I don’t believe you. I’m just asking you about what evidence you might have and trying to understand why you have not been able to provide what would normally be the most straightforward evidence …;[3]
g)the question raised by the member, said to found his concerns about the truth of what the applicant was telling him, about the applicant’s mother holding a 806 family visa and not being a refugee when the applicant had said she was;
h)the applicant’s representative complaining that confusion permeated the Tribunal member’s questions and the applicant’s answers thereto; and
i)the member’s comment on page 35 of the transcript that he intended to give some weight to the fact that none of the applicant’s sisters had “considered this hearing a serious enough event to actually attend and give evidence”.[4]
[3] Exhibit “CJF-1” to the affidavit of Catherine Jane Farrell affirmed 26 September 2017 at p.23.
[4] Exhibit “CJF-1” to the affidavit of Catherine Jane Farrell affirmed 26 September 2017.
On 12 May 2015 the Tribunal resumed its hearing having the evidence of the applicant’s siblings. The matters canvassed at the second hearing travelled further than Mr Wood of counsel submitted when he argued that the second hearing was mainly concerned with country information. But it was true that nothing of note was raised in the second hearing about the applicant’s protection claims despite the Tribunal member’s specific invitation to the applicant to say anything he wished on point.
Against that factual backdrop, it was a fair summary of those events to record that –
a)
the Tribunal investigated the applicant’s claims at length on
20 February 2014 during which the Tribunal obtained the information it considered appropriate from the applicant;
b)the applicant’s siblings gave evidence thereafter in May 2015;
c)the applicant gave no evidence beyond the evidence he gave on 20 February 2014; and
d)on 2 June 2015 the Tribunal handed down its decision.
Any demeanour-based credibility assessments of the applicant could only have been made by the Tribunal when it heard and saw the applicant on 20 February 2014.
An unsatisfactory delay
In the High Court decision in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs,[5] the High Court held that delay that impairs the capacity of the Tribunal to form an accurate assessment of the applicant’s credibility is vitiating. Several passages of the reasons of members of the High Court in that decision bear directly on the facts of this case. Different justices made different observations. Yet all spoke of the undesirability of prolonged delays in the Tribunal process. In the passages below I have recorded the observations made by various members of the court.
[5] (2005) 228 CLR 470.
Chief Justice Gleeson was firm in his Honour’s characterisation that delay occasioned a real and substantial risk that the Tribunal’s capacity to assess the appellant was impaired. A number of specific passages bear close attention –
There is nothing in the reasons of the tribunal that seeks to explain or justify the delay. Nor is there anything in those
reasons that recognises any possible effect of delay on the decision-making process, or seeks to explain how any possible problem resulting from the delay might have been taken into account or overcome. The reasons are expressed in a form that appears to treat the time involved in the tribunal process as immaterial to the adjudicative function.…
[T]here were a number of examples of findings by the tribunal, adverse to the appellants, that turned on an assessment of their credibility in circumstances that must have been influenced by the tribunal’s observation of their demeanour.
Because the tribunal’s reasons ignored the question of the time that had elapsed between the taking of evidence and the final assessment of that evidence, it can never be known how that assessment was in fact affected by the delay … What must be kept in mind is that the question concerns the fairness of the procedure that was followed. It was an inquisitorial procedure that, in the circumstances of this case, depended to a significant extent upon the tribunal’s assessment of the sincerity and reliability of the appellants. That is one of the reasons why they were entitled to, and were given, a “hearing”. An important purpose of the hearing was to enable the tribunal to do just what it ultimately did, that is, make a judgment about whether the appellants were worthy of belief … A procedure that depends significantly upon the tribunal’s assessment of individuals may become an unfair procedure if, by reason of some default on the part of the tribunal, there is a real and substantial risk that the tribunal’s capacity to make such an assessment is impaired.
In a case of failure to give a hearing when a hearing is required, the person complaining of denial of procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness. The appellants in this case do not have to demonstrate that the tribunal’s assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the tribunal’s capacity to make a proper assessment of their sincerity and reliability.
The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the tribunal, it should be inferred that there was a real and substantial risk that the tribunal’s capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the tribunal.The fact that the impairment resulted from the default of the tribunal is important. Many events, outside the control and influence of the tribunal, might occur to make it more difficult to evaluate the claims of an applicant. That does not make the procedure unfair. On the other hand, when the tribunal, exercising the control over its own procedures given to it by the Act, without explanation or justification, and without any fault of an applicant for review, draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the tribunal’s reasons to displace that likelihood, then a case of procedural unfairness arises.[6]
[6] (2005) 228 CLR 470 at [3], [8]-[11].
The Honourable Justice Kirby made a number of strident comments. Among them were the following (footnotes omitted) –
[I]f the court, on … review, concludes that the delayed decision is unsafe or involves material unfairness or injustice to the losing party, an affront to the common hypothesis of decision-making is established.
…
The general unwillingness of courts, conducting an appeal or judicial review, to go behind findings as to the credibility of parties or witnesses is a well-known feature of all litigation where a determination is challenged after a first instance decision.
This fact reposes a great responsibility upon primary
decision-makers. Respect for their decisions comes at a price. That price is the reasonably prompt determination of contested questions of credibility while memories of impression are fresh and true reasons can be given for preferring some, and rejecting other, evidence.…
[W]hen inordinate delay is established, closer analysis of the circumstances of the case and of the effect of the delay is then required.
…
The significance of delay, depending as it does on the issues for decision, necessitates examination of the matter actually decided. If this involved no more than the construction of a written document, the interpretation of a statutory provision applied to agreed facts or other like questions, undue delay, while regrettable, might not affect the acceptability or validity of what has been done. The court conducting the appeal or judicial review could judge that matter for itself. Where, however, the matter for decision involves an assessment of the truthfulness of a party or important witnesses, the resolution of competing versions of the facts and the differentiation of truth and falsehood, delay, especially protracted delay, in the provision of a reasoned decision may cast doubt on the validity of that decision. Commonly, this is explained by reference to the need to ensure that “the trier of fact can recall the testimony and the demeanor of the witnesses as well as the dynamics of the trial”.
…
[P]rima facie the delay that happened before the tribunal, in the provision of its reasoned decision in this case, was materially excessive. On the face of things, it deprived the appellants of a “decision” of the type required by the Act. It rendered suspect the reasons, findings and references to the evidence contained in the tribunal’s “decision”. The “decision” was not reached by a process that was procedurally fair and just to the appellants.
By reason of the delay, the “decision” was presumptively flawed by jurisdictional error.…
[T]he delay in this case impaired the tribunal’s capacity to assess the case presented by the appellants, and in particular the tribunal’s capacity to make a proper assessment of the appellants’ credibility. As such the requirements of procedural fairness applicable to the tribunal were not fulfilled.
I … agree with Gleeson CJ that, in order to make good a claim of unfairness, it is sufficient to establish that there was a substantial risk that the tribunal’s capacity to assess fairly the appellants’ evidence, and to carry out its decision-making functions conferred by the Act, was impaired by the procedures adopted by the tribunal. I do not agree with the opinion of Hayne J that the appellants must demonstrate that the risk that the tribunal did not fairly assess their evidence actually eventuated. Such an approach falls into the very error that it seeks to avoid because it necessarily involves an impermissible review of the merits of the decision. The concern of a court, in exercising its power of judicial review and evaluating the complaint of unfairness, is with the procedure followed by the tribunal. The concern is not, as such, with the decision ultimately reached. For this reason, whether or not the tribunal was in fact disabled from assessing the appellants’ evidence, or whether or not the ultimate outcome was in fact affected, is not determinative. - 125 It can reasonably be inferred from the serious delay in this case that there was a real risk that the tribunal’s capacity to assess the appellants’ evidence was impaired. As such, the decision was flawed for want of procedural fairness.[7]
[7] (2005) 228 CLR 470 at [60], [68], [82], [85], [102], [105]-[106].
The joint judgment of Callinan and Heydon JJ provided a similar analysis. The following were the more important extracts –
[N]othing, apart from bias or unfairness, is more likely to bring public administration and the law into disrepute than inexplicable prolonged delay in the disposition of matters. Delay of that kind immediately and inevitably raises questions. How earnest was the consideration given to the matter? Did the maker of the decision truly apply his or her mind to it? Did he or she find it too hard? Was the decision-maker distracted? Was the decision in the end made out of desperation, or a realisation that it had at last to be given, regardless of its correctness or otherwise?
…
A failure to make a quick decision would not, in the context of the Act overall, of itself constitute jurisdictional error. However, the presence of s 420 in the Act provides an indication of the scope and objects of the Act, and it is a section to which some regard may be had in deciding whether an excessively prolonged decision is one that can be said to have been made fairly.
…
[T]he process has nonetheless much in common with the process of fact-finding after hearing evidence called and tested by adversaries characteristic of trials. Like trials conducted before courts, the process is dealing with issues which are fundamentally important - here, both for applicants and for the first respondent. Like courts, the tribunal is dealing with issues which ought to be decided without undue delay … It is plain from modern litigious experience that delays before hearings, during hearings or after hearings, are radically inimical to fairness and justice.
…
In our opinion it is not possible to say that the tribunal’s decision, depending so much as it did, on the credibility of the appellants who gave oral evidence, was made fairly.[8]
[8] (2005) 228 CLR 470 at [161], [163], [165] and [168].
In Minister for Immigration and Citizenship v Li and Anor[9] the plurality of the High Court of Australia (Hayne Kiefel and Bell JJ) explained that the Tribunal’s duty under s.360(1) of the Migration Act 1958 (Cth) (“the Act”) (equivalent to s.425(1) of the Act) required the Tribunal to invite the applicant to appear “in the sense that
(the Tribunal) must provide the applicant for review with a real chance to present his or her case”.[10][9] (2013) 249 CLR 332.
[10] (2013) 249 CLR 332 at [61].
Mr Wood submitted that the Tribunal’s invitation to appear was a substantive entitlement to appear at the hearing, support for which was found in the decision of the Full Court of the Federal Court of Australia in Singh v Minister for Immigration and Border Protection.[11]
[11] [2017] FCAFC 67 at [38].
The High Court explained and emphasised in Minister for Immigration and Border Protection v WZARH[12] the significance of the
oral interview given by the Tribunal. The majority (Kiefel, Bell and Keane JJ) explained that the oral interview was an advantage to an applicant. That was because the decision-maker was “able to use all the information provided by (the applicant), including impressions gained from his demeanour at the interview, in coming to a conclusion as to the genuineness of his account”.[13] At paragraph 40 of the plurality’s reasons the court made specific reference to impressions formed by a decision-maker from the demeanour of the interviewee and that those impressions may be an important aspect of information available to the decision-maker. At paragraph 44 of its reasons, the court referred to how the Tribunal would be in a better position if it had formed the impression that the applicant was generally doing his best to give truthful evidence in difficult circumstances.
[12] (2015) 256 CLR 326.
[13] (2015) 256 CLR 326 at [37].
In AKD16 v Minister for Immigration & Anor[14] I examined issues relating to witness assessment especially in a hard-swearing case where the assessment of demeanour was important. In that case I took the view that the Tribunal did not discharge its statutory function and I ordered the issue of constitutional writs.
[14] (2016) 315 FLR 228.
In my view, the delay in this case was inordinate. It was excessive.
It was unexplained. The delay was attributable to the Tribunal.
The applicant was blameless. In its reasons the Tribunal gave no consideration to the possible effect the delay may have had on its reasoning process, to say nothing of its ability to recall issues that went to an assessment of demeanour. I am entitled to take judicial notice of the fact that the work of the Tribunal is exceptionally high volume.
To my mind it beggars belief that a Tribunal member could recall issues of demeanour relevant to a particular applicant in circumstances where hundreds of cases were dealt with in the intervening 15 months.
When the matter returned before the Tribunal in May 2015,
the Tribunal was well-placed to refresh its memory of the applicant,
his evidence and the way he gave his evidence. The Tribunal could have, but failed to, avail itself of that opportunity. Had it done so,
the Tribunal would have undertaken the fact-finding process addressed by Kirby ACJ (as his Honour once was prior to appointment to the High Court) in Galea v Galea.[15]
[15] (1990) 19 NSWLR 263.
I agree with the submissions advanced by Mr Wood to the effect that an applicant may be denied procedural fairness as a result of an inordinate delay between an oral hearing of an applicant’s evidence and the Tribunal’s decision. That may be the case even if the Tribunal does not base its assessment of the applicant’s credibility on an adverseassessment of the applicant’s demeanour. The delay may also deny the applicant the meaningful opportunity to which an applicant is entitled to positively impress the Tribunal with his or her demeanour. For that matter, the Tribunal may well have taken into account the applicant’s demeanour when it assessed in the overall the applicant’s credibility.
It could not be sensibly contended that after a 15-month delay the Tribunal could recall matters relevant to credibility.
On behalf of the Minister it was contended that undue delay in decision-making is unfortunate and is to be avoided but that it will be a rare case where delay vitiates the proceeding. In my view, this was such a case. While true, error is not established by the fact of the delay but by the effect of the delay. In this case the effect was manifest.
This was not a case where the Tribunal’s assessment of the believability of the applicant was to be determined by examining documents alone.
On behalf of the Minister, Mr Yuile of counsel referred to the decision of the Full Court of the Federal Court of Australia in Haros v LinfoxAustralia Pty Ltd[16] and to the Full Court’s warning that caution should be exercised before finding that fairness has been denied because of delay. This is not a case where I am undertaking the activity against which the Full Court warned, namely stating a hard rule about a time-frame that would be considered excessive. My reasons should not be construed in that way. Instead, in the circumstances of this case I take the view that a 15-month delay is inordinate and excessive. It went beyond being unfortunate. It positively torpedoed the prospects that the applicant should have enjoyed of receiving a fair hearing.
[16] (2012) 287 ALR 507.
Conclusion
This application for judicial review succeeded. Jurisdictional error has been demonstrated. I order the issue of constitutional writs.
The Minister must pay the applicant’s costs of this proceeding.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 10 November 2017
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