BIX15 v Minister for Immigration

[2017] FCCA 376

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIX15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 376

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred by making erroneous factual findings – whether the Administrative Appeals Tribunal erred in failing to consider a relevant consideration – whether the Administrative Appeals Tribunal erred in failing to give independent country information to the applicant for comment – whether the Administrative Appeals Tribunal erred in failing to locate the applicant – whether the Administrative Appeals Tribunal erred in delaying its decision for twenty-two months – whether the Administrative Appeals Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 474, 441G

Cases cited:
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470
SZKJV v Minister for Immigration and Citizenship (2011) 120 ALD 52
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1

Applicant: BIX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1936 of 2015

Judgment of: Judge Emmett

Hearing date: 28 February 2017

Date of Last Submission: 28 February 2017

Delivered at: Sydney

Delivered on: 14 March 2017

REPRESENTATION

Solicitor for the Applicant: Sudarshan Tambimuttu
(Hodges Legal)

Counsel for the Respondents: Mr Hamish Bevan

Solicitors for the Respondents: Sparke Helmore Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1936 of 2015

BIX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 27 June 2015 (“the Tribunal”).

2. The applicant claims to be a citizen of Sri Lanka and of Tamil ethnicity, who fears harm from the authorities in Sri Lanka.

3. The issue in this matter concerns the Tribunal’s delay of 22 months from its first hearing of the matter to making its decision to affirm the decision under review.

Relevant Procedural History

1. In short, on 21 February 2013, a delegate of the first respondent (“the Delegate”) refused the applicant a protection visa.

2. On 26 February 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

3. On 15 August 2013, the applicant attended a hearing before the Tribunal (“the First Hearing”).

4. On 16 December 2014, the applicant attended a further hearing before the Tribunal (“the Second Hearing”).

5. On 27 June 2015, the Tribunal affirmed the Delegate’s decision not to grant the applicant a protection visa.

6. The background of this matter, and a summary of the Tribunal’s review, including a summary of its findings and reasons is accurately reflected in written submissions of counsel for the first respondent, Mr Hamish Bevan, as follows:

   “Background

   3. The applicant is a national of Sri Lanka, of Tamil ethnicity and Hindu faith (so the Tribunal found at Court Book (CB) 262 [181] and 263 [184]).

   4. He arrived in Australia as an irregular maritime arrival on 1 July 2012 (CB 131.6; see also CB 1-21).

   5. After the statutory bar in s 46A of the Migration Act 1958 (the Act) was lifted, he applied for a protection visa on 19 November 2012 (CB 22-117). His claims were set out in a statutory declaration (see CB 62-65).

   6. Broadly, he claimed to fear harm from the Sri Lankan army and the Karuna group, which is an armed paramilitary group associated with the Sri Lankan authorities.  He claimed that:

   (a) he had been detained and beaten on several occasions by the Sri Lankan army when he was 14 years old;

   (b) the Karuna group tried forcibly to recruit him in 2006;

   (c) in 2006, he and others prevented an abduction of a female friend by her former boyfriend (“Mr N”) who, it was claimed, was a member of the Karuna group and subsequently harassed and threatened the applicant;

   (d) in 2007, he fled to Qatar;

   (e) in 2009, he returned to Sri Lanka but was threatened by associates of Mr N who was soon to be released from prison.

   7. On 20 February 2012, the applicant attended an interview with the delegate (CB 137.10-139.4).

   8. On 21 February 2013, the delegate refused to grant the applicant a protection visa (CB 127-152).  While the delegate accepted that the incident concerning the attempted abduction occurred, he found that the applicant:

   (a) had “exaggerated” the threats and his fears (CB 139.5);

   (b) went to Qatar for work purposes (CB 140.5);

   (c) had “no problems with any one for any reason” when he returned to Sri Lanka in 2009 (CB 140.5); and

   (d) did not flee Sri Lanka “out of genuine fear of harm from [Mr N]” (CB 140.5);

   (e) has “never been suspected of LTTE or any-government involvement in the past” (CB 144.7 and 145.7).

   9. The delegate rejected his claims under the Refugees Convention and the complementary protection regime (CB 147 and 150).

   10. On 26 February 2013, the applicant applied to the Tribunal for review of the delegate’s decision (CB 153-160).  The form provided the details of the applicant’s then representative (both the nominated agent and the firm) (see CB 156).  The form also contained an authorisation by the applicant (CB 160) in which he declared, among other things, that he understood that:

   “…if I change my contact details and do not inform the Tribunal of my new address, the Tribunal may proceed to make a decision about my case even if it cannot contact me.”

   11. The Tribunal’s acknowledgement of the application for review also emphasised the importance of maintaining correct contact details with both the Tribunal and the applicant’s representative (see CB 163).

   12. In July 2013, the Tribunal was provided with:

   (a) a submission by the applicant’s representative (CB 173-188);

   (b) a declaration by the applicant in which he addressed aspects of the delegate’s decision and claimed that, since his departure from Sri Lanka, his family has been threatened by members of the Karuna group (CB 189-190).

   13. The applicant attended a hearing before the Tribunal on 15 August 2013 (CB 192-193).  He was accompanied by a different representative.  The Tribunal’s account of the hearing appears in the decision record at CB 244 [92]-[145].

   14. The applicant attended a second hearing on 16 December 2014 (CB 220).  He was accompanied by a yet further different representative.  The purpose of the second hearing was described by the Tribunal as follows (at CB 255 [147]):

   “The Tribunal explained that it invited the applicant to a further hearing because of the delay since the last hearing and also because there had been new information in a report from the Department of Foreign Affairs and Trade to which the Tribunal must have regard.”

   15. The Tribunal’s account of the second hearing is at CB 255 [148]-[175].

   16. On 25 February 2015, the Tribunal wrote to the applicant pursuant to s 424A of the Migration Act (see CB 222-229). The letter was formally made out to the migration agent nominated in the original application for review but sent to the firm’s fax number (see CB 222-223). For completeness, it should be noted that the s 424A letter itself incorrectly refers to a different applicant at the beginning of the letter (see CB 224), although the applicant is correctly identified in the prominent subject headings.

   17. On 10 March 2015, the director of the firm representing the applicant wrote to the Tribunal saying:

   “We have forwarded the client the written request and attempted to call him several times but the voicemail for the client is not active and he has not replied to our contacts nor responded to the letter dated 25 February 2015.”

   18. On 27 June 2015, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 234-301).

   Tribunal’s findings and reasons

   19. The Tribunal’s findings and reasons are at CB 262 [181]-[225].

   20. The Tribunal accepted the applicant’s nationality, ethnicity, religion and the chronology of his time in Qatar (see CB 263 [184]).  The Tribunal did not otherwise accept the applicant’s claims and found that he has “fabricated his claims for protection and is not a credible witness” (see CB 263 [185]).

   21. The Tribunal said (CB 263 [186], at CB 264):

   “…The Tribunal finds that the applicant’s vague, inconsistent evidence, evasive evidence, failure to provide significant claims at an earlier opportunity and development of his claims over the course of the application, were not because of the explanations offered by the applicant, but, rather, because the applicant has fabricated his claims for protection, reasons for leaving Sri Lanka and fears of returning.  This also leads the Tribunal to find that the applicant is not a witness of truth.”

   22. The Tribunal then proceeded to consider the applicant’s evidence and his claims in detail (see CB 264 [187]-[194]).  In particular, the Tribunal:

   (a) considered the applicant’s claims that he fled to avoid intimidation from and harassment by Mr N and his associates and rejected these and consequential claims on the basis of “[t]he implausible evidence, inconsistent evidence, development of claims and failure to provide significant claims at an earlier opportunity”, finding that the applicant “has fabricated all these claims for protection and is not a witness of truth” (CB 264 [187]);

   (b) declined to make “speculative enquiries” in Sri Lanka, as suggested by the applicant (CB 264 [188]);

   (c) rejected the applicant’s claims to have remained in hiding following his return from Qatar on the basis of “inconsistent evidence”, finding that the applicant “is not a witness of truth and will tailor his evidence according to his circumstances” (CB 265 [189]);

   (d) rejected the applicant’s claims to have been detained and beaten by the army because of his “vague evidence” finding, also, that he is “not a witness of truth” (CB 265 [190]);

   (e) having regard to his “vague evidence” and “inconsistent evidence”, rejected the applicant’s claims that there was an attempt to recruit him forcibly to the Karuna group and found that he is “not a witness of truth” (CB 266 [191]).

   23. The Tribunal also rejected the applicant’s additional claims related to another paramilitary group (the Pillayan group, at CB 266 [192]), his Hinduism (CB 267 [193]) or threats and harassment of his family since his arrival in Australia (CB 267 [194]).

   24. The Tribunal did not accept that the applicant would be suspected of or be perceived as “being an LTTE supporter, or having links with the LTTE, or being anti-government”, whether by reason of his Tamil ethnicity, gender and age, his family, or as a returnee (see CB 268 [195]-[199]).

   25. The Tribunal did not accept the applicant’s claims to fear persecution for reason of his:

   (a) political opinion (actual or imputed) arising from or in connection with his Tamil ethnicity (CB 269 [200]);

   (b) ethnicity (CB 269 [201], see also CB 270 [203]-[204]);

   (c) membership of a particular social group, being returned asylum seekers, including those perceived as wealthy (CB 269 [202]).

   26. The Tribunal also considered, and rejected, the applicant’s claims to fear persecution because of his status as a returned asylum seeker, noting that the evidence did “not indicate that all returnee asylum seekers are regarded as LTTE supporters, members or affiliates” and that the applicant did not have such a profile (see CB 270 [205]-[207]).

   27. The Tribunal then considered a claim based on the applicant’s illegal departure from Sri Lanka (see CB 271 [208]-[213]).  In so doing, the Tribunal wrongly stated that the applicant had “previously travelled to India during the period of the civil war” (CB 271 [208]).  In any event, the Tribunal found that the process the applicant would face upon return would not amount to serious harm (CB 271 [208] and were the consequence of a “law of general application” (see CB 272 [210]-[211]).  It rejected the applicant’s claims, finding that the chance of serious harm on account of his illegal departure from Sri Lanka to be “remote or insubstantial” (CB 273 [213]).

   28. The Tribunal, having considered the applicant’s claims “singularly and cumulatively”, was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if he returned to Sri Lanka now or in the reasonably foreseeable future (CB 273 [214].

   29. On the same bases, the Tribunal did not accept that the applicant satisfied the complementary protection criterion (see CB 273 [215]-[221]).

   30. The Tribunal accordingly affirmed the delegate’s decision (CB 275 [222]-[225]).”

The proceeding before this Court

1. The applicant was represented before this Court by his solicitor Mr Sudarshan Tambimuttu. 

2. At the end of the hearing, the applicant’s solicitor withdrew reliance on Ground 2 of the Amended Application filed on 17 January 2017.

3. Ground 1 of the Amended Application is expressed to be an assertion of jurisdictional error due to the substantial delay between the Tribunal’s hearing and the Tribunal’s decision. The applicant contended that the Tribunal denied him procedural fairness resulting in a substantial risk that the Tribunal’s capacity to assess the applicant’s case was impaired. Ground 1 contained eighteen particulars, many with up to six sub-particulars. It was not an easy ground to navigate. It was dense, repetitive and convoluted. In a commercial pleading, it would be embarrassing.

4. However, ultimately, the solicitor for the applicant submitted that the applicant’s complaints are contained in paragraph 24 of the applicant’s written submissions as follows:

   “24. It is further submitted that the delay of over 22 months in the AAT reaching its decision is unreasonable, as no reason for the delay had been provided, and the delay/lapse of time in reaching a decision, has created a real and substantial risk that the AAT's own capacity to assess the applicant's case has been impaired for the following reasons,

   a. At [CB 271, Paragraph 208] the AAT states of having accepted a claim which was never made by the applicant. The applicant did not claim of having “previously travelled to India during the period of the civil war”.

   b. The letter dated 25 February 2015 was addressed to Mr Pushparajah [CB 224] who clearly is not the applicant.

   c. While other DFAT publications were provided to the applicant for comment, the DFAT report of 3rd October 2014 was not provided to the applicant for comment.

   d. As particularised in Ground 1(r)(iv) The AAT did not write to the applicant about “many of the issues” which were discussed at the hearing [CB 254, 138 and 139] which the Tribunal said it would write to the applicant about.

   e. As particularised in Ground 2 (e) and (f) below the AAT erred in its reasoning as it did not consider contents in the applicant's statutory declaration dated 17 July 2013.”

5. In support, the applicant’s solicitor cited the following passages in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 (“NAIS”), as follows:

   “[10]… 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…

   [11]…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.

   [71]…Where a relevant failure to comply with the basic requirements of procedural fairness (natural justice) is shown, jurisdictional error exists…”

6. In NAIS, the High Court held, by majority, that the tribunal’s decision was affected by a delay of some four and a half years, thereby creating a real and substantial risk that the tribunal’s capacity to assess the applicants’ evidence and evaluate their claims was impaired such that the applicants were denied a fair hearing and the tribunal accordingly fell into jurisdictional error.

7. Other passages of NAIS and an accurate summary of the law are reflected in Mr Bevan’s submissions as follows:

   “34. Gleeson CJ held that the delay created a real and substantial risk that the Tribunal's capacity to assess the applicants' evidence and evaluate their claims was impaired, so that the applicants were denied a fair hearing (see at 475 [9]).  His Honour explained (at 476 [10]) that what must be demonstrated 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”.

   35. Kirby J also held (at 501 [102]) that the delay was “materially excessive” and, because of that delay, the “decision” was “presumptively flawed by jurisdictional error”.

   36. In a joint judgment, Callinan and Heydon JJ said (at 525 [168]):

   "…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. … This was not a matter in which the Tribunal merely had to weigh up oral evidence against written evidence.  It had to weight up oral evidence given on one occasion with oral evidence given three and a half years later, as well as the further written material that had come to hand. That is not an exercise that can satisfactorily and fairly be carried out over widely separated serial proceedings."

   37. This is because “unfairness can spring not only from a denial of an opportunity to present case, but from a denial of an opportunity to consider it" (at 526 [172], per Callinan and Heydon JJ).

   38. Nevertheless, the circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare: NAIS (at 473 [5] per Gleeson CJ).

   39. In SZKJV v Minister for Immigration and Citizenship (2011) 120 ALD 52, [2011] FCA 80, the delay in issue approached one year (see at [4]). Reeves J held (at [37]) that the decision was not affected by error of the kind identified in NAIS because the credibility findings "were not solely, or significantly, founded on an assessment of her demeanour, nor involved 'bland assertions', or simple findings of implausibility".  Rather, they were based on identified inconsistencies and contradictions.  His Honour also noted that the Tribunal had given "detailed reasons" for its adverse credibility findings (see at [38]).

8. Paragraph 5 and 6 of Gleeson CJ’s reasons in NAIS is as follows:

   “5. Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare. Of course, statutes of limitation impose a legislative direction that certain delays will bar proceedings; and analogous consequences may flow from the application of equitable principles. There is, however, nothing in the Act that prescribes a time limit for decisions of the Tribunal, and this Court has no power to determine some such limit. A court may have power to relieve against oppressive conduct of a complainant, or a prosecutor, and delay may be a factor in the oppression. In such circumstances, the ground for relief is the oppression, not the delay. A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself. Where delay gives rise to a ground of supervisory or appellate intervention, the remedy must be tailored to the circumstances and justice of the case. In adversarial litigation, for example, neither party may be at fault, and it may be unnecessary and unjust to visit the successful party with all the consequences that flow from having to start again. Remedies available where delay has caused problems may be discretionary. (In the present case, counsel for the first respondent disclaimed any reliance upon a discretionary argument.) In some cases, mandamus may be an available remedy for dilatory behaviour, and failure to seek mandamus could constitute a discretionary reason to deny later relief.

   6. The context in which delay occurs will affect any legal consequences that may flow.  In this case, the Federal Court was not sitting as a court of appeal, considering whether there were material factual errors in the reasoning of the Tribunal, and deciding whether to uphold or set aside the Tribunal's decision by reference to the principles which guide appellate intervention in the administration of civil or criminal justice.  Here the focus was upon alleged jurisdictional error, specifically in the form of denial of procedural fairness, in administrative decision-making.”

1. In NAIS, following the first hearing, there was a second hearing three and a half year later and a further twelve months until the decision was made.

2. Having accepted that the delay on the part of the tribunal was inordinate, Gleeson CJ went on to criticise the Tribunal for a failure to explain or justify the delay or to recognise that any possible effect of the delay of the decision-making process or to explain how any possible problem resulting from the delay might have been taken into account or overcome. Gleeson CJ stated as follows:

   “There is no dispute that the delay on the part of the Tribunal was inordinate.  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.”

3. NAIS also made clear that the relevant delay is not confined to that which occurred between the second oral hearing and the delivery of the decision. That was because the decision in NAIS was concerned with “demeanour on two occasions, long separated in time, and each requiring to be related and compared to the other, and weighed with a considerable volume of written evidence” (see NAIS at 526 [174] per Callinan and Heydon JJ).

4. In NAIS, the Court also referred to the difficulties created when the demeanour of a witness may form part of a tribunal’s adverse credibility findings.

5. In SZKJV v Minister for Immigration and Citizenship (2011) 120 ALD 52, Reeves J sought to summarise the principles of NAIS as follows:

   “[33] In summary, I consider the critical principles arising from these various decisions of the majority in NAIS are these: where adverse credibility findings, based solely or significantly on demeanour, are combined with a lengthy or significant delay in delivering the decision containing those findings, in the absence of some reasonable explanation for that delay, it can be inferred that the procedures followed were unfair, in the breach of natural justice sense, thereby giving rise to jurisdictional error.”

6. The first respondent did not dispute that the delay by the Tribunal may attract the general criticism identified by Gleeson CJ in NAIS concerning undue delay in administrative decision-making. However, the first respondent contended that the Tribunal’s decision, the subject of this review, is not affected by jurisdictional error by reason of that delay.

7. In the case before this Court, the Tribunal found many inconsistencies that it identified and discussed with the applicant during the hearings as well as finding the applicant’s evidence not to be consistent with independent country information before it.

8. However, the Tribunal’s findings and reasons are peppered with adverse credibility findings expressed to be on the basis of fabrication of evidence, implausible evidence, tailoring of evidence, vague evidence and evasive evidence. These adjectives describing the applicant’s evidence may well lend themselves to involving an element of demeanour assessment. Ultimately, the Tribunal comprehensively rejected all the applicant’s claims of past harm in Sri Lanka, finding that he was not a witness of truth.

9. Further, the Tribunal made several references throughout its findings and reasons to the failure of the applicant to respond to a s.424A letter sent after the Second Hearing and which, on the evidence before this Court, the Tribunal knew the applicant had not received.

10. The s.424A letter dated 25 February 2015 was sent to the applicant’s authorised recipient, some seventeen months after the First Hearing and some three months after the Second Hearing.

11. However, at the conclusion of the First Hearing, “the Tribunal stated that any of these issues fell under s.424A of the Act and it would need to write to him and asked him to comment or respond.” The sentence by itself does not make sense. Either it should have read “the Tribunal stated that (if) any of these issues fell under s.424A of the Act and it would need to write to him and asked him to comment or respond”; or “the Tribunal stated that (m)any of these issues fell under s.424A of the Act and it would need to write to him and asked him to comment or respond”.

12. The way in which the findings and reasons are expressed suggest that at the time of writing its decision in May 2015, it was not present in the mind of the Tribunal that the applicant had not received the s.424A letter.

13. It is not clear whether the Tribunal’s reference to the applicant’s failure to respond to its s.424A letter was a matter that weighed heavily in its adverse credibility findings. However, it is hardly intended to be praising of the applicant. There is a clear difference between the Tribunal saying that information was put to the applicant in a s.424A letter to which he did not respond; and, that information was put to the applicant in a s.424A letter which he failed to receive. Nowhere in the decision does the Tribunal make that distinction when it refers to the failure of the applicant to respond to the s.424A letter. Otherwise, the Tribunal simply makes reference to the fact that particular concerns it had were raised with the applicant at the hearing and in a s.424A letter.

14. However, it was common ground that none of the information eventually given to the applicant in the s.424A letter of 25 February 2015 enlivened any obligation under s.424A of the Act to give such information to the applicant.

15. The Second Hearing is stated by the Tribunal to have occurred because of the delay since the First Hearing; and also because there has been new information in a report from the Department of Foreign Affairs and Trade (“DFAT”) which the Tribunal stated was a report to which it must have regard.

16. However, nowhere in the Tribunal’s decision record does it identify the new country information to which it had regard and to which it took the applicant.

17. In its post Second Hearing s.424A letter, dated 25 February 2015, a copy of the new DFAT report was attached to the letter. However, the covering letter stated that the report is “substantially the same as the previous report, published on 3 October 2014”.

18. Otherwise, there is no explanation of the type referred to by Gleeson CJ in NAIS seeking to explain or justify the delay. Nor is there anything in the reasons that recognises any possible effect of the delay on the Tribunal’s decision making process. Nor did the reasons seek to explain any possible problem resulting from the delay that might have been taken into account or overcome.

19. In considering whether or not the delay was inordinate, I note that Macquarie Dictionary Third Edition defines ‘inordinate’ as “not within proper limits; excessive;…irregular”. In my view, all those definitions are applicable to a decision that is handed down some 22 months after the First Hearing.

20. At the conclusion of the First Hearing on 15 August 2013, the applicant had said that there was nothing further he wished to say. The Tribunal did not say at the commencement of the Second Hearing that it intended to rehear the applicant’s claims because of its delay. In fact this is what it did.

21. The Tribunal asked the applicant, at the beginning of the Second Hearing if there were any further claims since the last hearing that he wanted to make. The applicant said there was nothing further that he wished to add. The applicant responded that some things had happened but he had no further evidence.

22. The Tribunal referred to the updated DFAT report, that it acknowledged did not depart from the earlier report, as a justification for inviting the applicant to the Second Hearing. There was no need for the Tribunal so to do. It is well established that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

23. There appears to be no recognition on the part of the Tribunal of the potential harm caused by the delay involved and no attempt to explain the delay beyond what is referred to above.

24. Whilst the applicant refers to an erroneous finding by the Tribunal in accepting that the applicant had previously travelled to India during the Sri Lankan Civil War when in fact the applicant did not make any such claim, such an erroneous finding does not by itself establish jurisdictional error on the part of the Tribunal (see Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51).

25. Similarly, the s.424A letter was attached to a letter dated 25 February 2015, addressed to the applicant’s authorised recipient, although the letter itself was addressed to an unknown person.

26. The applicant’s complaint that the DFAT report of 3 October 2014 was not provided to the applicant for comment is also of no moment where the Tribunal had no obligation to provide that information to the applicant pursuant to s.424A(3)(a) of the Act. The DFAT report was not specifically about the applicant or another person and was just about a class of persons of which the applicant is a member.

27. The applicant also contended that the Tribunal made an erroneous finding, particularised as follows:

    “At [CB 269, Paragraph 202] the AAT did not accept the applicant's explanation “because if the applicant was genuinely concerned about being kidnapped and money extorted (rom him or his family, the Tribunal finds that he would have provided this at an earlier opportunity such as in his statutory declarations of 30 October 2012or17 July 2013.”

    The statutory declaration of 17 July 2013 states at [CB 190] “The group members have threatened my family and have demanded money. Extortion is common in Sri Lanka. The Karuna Group usually looks for an excuse to extort people. I fear that my family's life is in danger because of me ...”

28. However, in the course of considering whether the applicant would be targeted for kidnapping and extortion as a failed asylum seeker returnee, the Tribunal noted that the applicant did not claim that he would be kidnapped and that he or his family would be subject to financial extortion. In his claims, the applicant asserted that his family had already been extorted. In any event, even if the construction contended for by the applicant was to be accepted, again it does not demonstrate jurisdictional error on the part of the Tribunal.

29. However, the delay of 22 months is inordinate and, as stated above, coupled with the failure of the Tribunal to explain the delay or to recognise any possible effect of the delay or to seek to explain how any possible problem resulting from the delay might have been taken into account or overcome; together with the Tribunal’s adverse credibility findings expressed to be ones that involve some element of demeanour, in my view, the delay created a real and substantial risk that the Tribunal’s capacity to assess the applicant’s evidence and to evaluate his claims was impaired such that he may have been denied a fair hearing. The applicant’s demeanour and credibility are found to have been relevant to the Tribunal’s decision given the adjectives it used to describe the applicant’s evidence.

30. However, a fair reading of the Tribunal’s decision record makes clear that at the Second Hearing the Tribunal re-explored with the applicant all his claims and discussed its concerns about the applicant’s evidence with him. The Tribunal noted the applicant’s responses. The Tribunal summarised in detail what occurred at the First Hearing. There was no evidence provided by the applicant to suggest that the summaries in the Tribunal’s decision record were not accurate and no transcripts of either the First Hearing or the Second Hearing were tendered. In the circumstances, I accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

31. In the circumstances, I do not draw the inference that the 22 month delay between the First Hearing and the date of the decision record, although inordinate, denied the applicant procedural fairness. The Second Hearing attended by the applicant had a duration of 2.5 hours, during which all the applicant’s claims were re-explored and the Tribunal’s concerns discussed in detail with the applicant. That Second Hearing had the effect of addressing the procedural unfairness that may otherwise have been found to exist in the absence of the opportunity given to the applicant at the Second Hearing to fully explore his claims again.

32. In the circumstances, the Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for the reasons it gave. The comprehensive nature of the Second Hearing had the effect that any unfairness caused by the delay was overcome.

33. The applicant also criticised the Tribunal for failing to take any steps to locate the applicant when it was notified by the applicant’s lawyer that he no longer had contact details of the applicant. However, under s.441G of the Act, where an applicant nominates an authorised recipient (as the applicant did in this case), the Tribunal is required to correspond with that person. The Tribunal is not required to take any further step to find an applicant. In any event, given that the applicant’s lawyer did not know his whereabouts, there is no evidence as to what possible further step the Tribunal could have or should have taken. It is always an applicant’s fundamental responsibility to ensure that the Tribunal and the Department have his current contact details at all times. In the circumstances, there was no jurisdictional error in the failure of the Tribunal to take any such step.

34. Accordingly, the Tribunal’s decision is not affected by jurisdictional error and is otherwise a privative clause decision. Pursuant to s.474 of the Act this Court has no discretion to interfere.

35. The proceeding should be dismissed with costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  14 March 2017