BNO16 v Minister for Immigration

[2017] FCCA 1161

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNO16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1161

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – the adverse credibility findings made by the delegate and the earlier two Tribunals the subject of quashed decisions were not relevant to the current Tribunal’s assessment of the applicant’s credibility – erroneous understanding of the relevance of the earlier adverse credibility findings and the task required to be taken by the current Tribunal in its review – applicant did not have a real and meaningful hearing as required under s.425 – jurisdictional error identified – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 425, 476.

Cases cited:
SZTALv Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant: BNO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1576 of 2016

Judgment of: Judge Street

Hearing date: 30 May 2017

Date of Last Submission: 30 May 2017

Delivered at: Sydney

Delivered on: 30 May 2017

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Rasan T Selliah & Associates

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Grant the applicant leave to rely upon the grounds identified in the applicant’s submissions filed on 6 May 2017 and to rely upon the further grounds of review, which has been marked Exhibit D.

2. The amended application be filed in that regard on or before 2 June 2017 reflecting the subject matter of the leave.

3. A writ in the nature of certiorari is issued calling up the record of the second respondent and quashing the decision made on 19 May 2016.

4. A writ in the nature of mandamus is issued requiring the second respondent to determine the application for review according to law.

5. The first respondent pay the costs of the applicant fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1576 of 2016

BNO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 19 May 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

2. The applicant arrived in Christmas Island by boat on 11 April 2012 and was given a Irregular Maritime Arrival Interview, in which the applicant outlined his reasons for fleeing Sri Lanka. The primary reasons were reiterated in the applicant’s statement. On 11 July 2012, the applicant applied to the first respondent for a protection visa which included a statutory declaration outlining why he feared to returning to Sri Lanka.  The applicant is a Tamil Hindu and alleged that his father had been shot by the LTTE when he was about the age of three.

The delegate’s decision

1. In summary, the applicant claimed to fear harm from the Sri Lankan authorities by reason of suspicions that he may be an LTTE supporter. On 17 August 2012 the delegate refused the grant of a protection visa. 

2. The delegate found that the applicant did not have a profile that would attract adverse attention from the Sri Lankan authorities and found that the applicant failed to meet the criteria under the Act.

Decisions before the Tribunal

1. On 11 December 2012, a differently constituted Tribunal affirmed the decision not to grant the applicant a protection visa.  That decision was set aside, and the matter was sent back for further hearing. 

2. On 3 November 2015, a further differently constituted Tribunal refused to grant the applicant a protection visa. On 2 February 2016, that decision was set aside and the matter remitted to the second respondent for a further hearing.  On 11 May 2016, the applicant appeared before the second respondent to give evidence and present arguments and on 19 May 2016, the Tribunal affirmed the decision under review. 

Before this Court

1. Mr Zipser of counsel identified that certain grounds were now abandoned and were no longer pressed. 

2. The pressed grounds are as follows:-

   3. The Second Respondent engaged in legal error by misconstruing, and failing to apply, the real chance test under s.36(2)(a) of the Migration Act 1958 (Cth).

   Particulars:

   3.1The Second Respondent found at paragraph 54 that the credible independent country information, including those cited by the representative of the applicant in their submissions, essentially indicate that it is individuals who have actual or perceived strong LTTE links/sympathisers who can be targeted. At paragraph 24 the Second Respondent accepted that the father of the applicant was a driver and that it is plausible that the transported goods and LTTE personal and the father was shot in 1991. Paragraph 59 states:

   In the December 2015 report on Sri Lanka, the Department of Foreign Affairs and Trade (DFAT) states that whilst a person's real or perceived links with the LTTE may give rise to protection, this depends on the nature of the links, including:

   a. Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka.

   b. Former LTTE combatants or – cadres. Former LTTE combatants or – cadres II who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, – computer branch or media (newspaper and radio).

   c. Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE.

   d. LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan Diaspora that provided funding and other support to the LTTE.

   e. Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

   3.2 Subparagraph c and e squarely bring the applicant into the above risk profiles.

   3.3 The Second Respondent did not proceed to ask itself whether the test under s 36(2)(a) of the Migration Act 1958 (Cth) would be satisfied.

   5. The Tribunal found at paragraph 97 of its decision that, while the applicant might be remanded in custody for a short period on his return to Sri Lanka, there was "no intention to inflict pain or suffering" within the meaning of this term in s.5(1) of the Migration Act. The Tribunal misconstrued the term “intentionally inflicted.” This is a jurisdictional error.

   6. The Tribunal in the course of rejecting the applicant’s claims took into account and relies on adverse credibility findings against the applicant made by previous Tribunals which considered the applicant’s claims as well as by the Minister’s delegate in considering the applicant’s claims. In the circumstances this approach involved:-

   a) a failure by the Tribunal to give the applicant a real and meaningful hearing under s.425 of the Migration Act; and/or

   b) Taking into account an irrelevant consideration which the Tribunal has not permitted to take into account; and/or

   c) a form of illogical or irrational reasoning.

   For one of more of these reasons, the Tribunal feel into jurisdictional error.

   7. The Tribunal misconstrued its obligation under s.425 of the Migration Act by considering that it had a discretionary power as to whether or not to give the applicant a hearing.

Consideration

Ground 5

1. In relation to ground 5, Mr Zipser of counsel put a formal submission acknowledging that this Court was bound by the decision of the Full Court in SZTALv Minister for Immigration and Border Protection [2016] FCAFC 69. That was a proper course for Mr Zipser to take and preserves his client’s rights in that regard. I am bound by the decision of the Full Court. No jurisdictional error as alleged in ground 5 is made out.

Ground 3

1. In relation to ground 3, Mr Zipser of counsel took the Court to the findings of the Tribunal in relation to the applicant’s father having been shot as well as the further reasoning of the Tribunal and submitted that the Tribunal had not correctly applied the real chance test in light of having accepted that the father had transported goods and personnel for the LTTE. Mr Zipser took the Court to particular paragraphs in the Tribunal’s reasons and contended that the Tribunal had failed to deal with the applicant’s claim as to a fear of harm arising from his father’s LTTE connection.

2. On a fair reading of the Tribunal’s decision, the Tribunal dealt with the whole of the integers of the claim advanced by the applicant in relation to his fears of being suspected of being an LTTE supporter. Ground 3 is in substance an invitation to this Court to engage in an impermissible merits review. There was no misunderstanding or misconstruction by the Tribunal of the relevant law and the relevant law was correctly set out. On the face of the Tribunal’s reasons, the Tribunal correctly applied the real chance test. No jurisdictional error is made out by ground 3. 

Grounds 6 and 7

1. In relation to ground six and seven, at the commencement of the hearing, the Court drew counsel for the first respondent’s attention to certain passages in the transcript of the hearing before the Tribunal member. As a result of those issues being raised, Mr Zipser of counsel for the applicant, sought leave and was granted leave to rely upon grounds 6 and 7. 

2. Mr Knowles of counsel for the first respondent indicated that he was in a position to deal with the new grounds. Mr Knowles of counsel properly conceded that there was an error by the Tribunal both in its reasons and in the transcript in suggesting that the Tribunal had a discretion as to whether it held a hearing.

3. This Court made an order remitting the matter for determination according to law by the second respondent. The second respondent was bound by that order to determine the matter according to law. Mr Knowles of counsel pointed out that in such a rehearing, the Tribunal is required to comply with the statutory obligation and to conduct a further hearing.

4. The suggestion of a discretion deliberated upon by the Tribunal member as to whether a hearing should take place was misconceived.  It was not a discretionary hearing. Rather, it was a mandatory statutory hearing that the second respondent was required to carry out.

5. Mr Knowles of counsel also conceded on behalf of the first respondent that the obligation on the second respondent was to conduct a review in respect of which the second respondent had to make its own credibility findings.

6. Mr Knowles of counsel conceded a further error by the Tribunal in the suggestion that the adverse credibility findings by the delegate and the two earlier Tribunals were relevant to the applicant’s credibility and constituted information enlivening an obligation under s.424A of the Act.

7. Mr Knowles also conceded that the Tribunal member failed to comply with s.424AA of the Act if that information had been of a kind that enlivened the obligation under s.424A of the Act.

8. Mr Knowles submitted that the error in relation to the misunderstanding of the mandatory obligation to conduct a hearing which the Tribunal identified both in the transcript and in the reasons was not itself a jurisdictional error as it is apparent that there had in fact been a hearing conducted and compliance with the requirements for the purpose of the holding of that hearing. 

Misunderstanding by the Tribunal of credibility findings

1. The transcript in the present case identifies a misunderstanding by the Tribunal as to the concept of what is or is not relevant to credibility findings. The misunderstanding was identified relevantly on page 29 as follows:-

   So what I’m saying to you is this information, namely the adverse credibility findings, is relevant to my decision-making because it is further evidence of lack of credibility.

2. That proposition is wrong in law and the earlier adverse credibility findings by the delegate and the earlier two Tribunals which were the subject of decisions being quashed were not relevant in the review to the assessment of the applicant’s credibility. 

3. The underlying information provided to the delegate and/or to the earlier Tribunals may be relevant, but the Tribunal member patently suggested an understanding that the adverse credibility findings were relevant to the credibility assessment in the conduct of this review being undertaken by the Tribunal at the time of the oral hearing.

4. That issue flies in the face of the assertion at the commencement of the hearing by the Tribunal member, that the Tribunal member would be considering the applicant’s credibility afresh.  The passage quoted above flies in the face of the Tribunal member’s statement on page 2 of the transcript as follows:-

   “I’m basically going to go through all your claims all over again, because I need to make up my own mind about your claims.” 

5. The passage quoted above at paragraph 20 by the Tribunal member indicates that the Tribunal member in making up the Tribunal member’s mind, was operating under a misunderstanding erroneous in law that the adverse credibility findings by the delegate and the earlier two Tribunals was relevant to the current Tribunal’s assessment of the applicant’s credibility. The issue was not isolated in the conduct of the oral hearing in pages 28-35 of the transcript:-

   M - For the record, the applicant, the representative and the applicant have returned and the hearing now resumes. Alright. I'm just going to discuss with you a number of things now. As I said right at the beginning of the hearing, the delegate and the previous two members - for various reasons - had problems accepting a number of your claims. Essentially, the delegate, the two members reached an adverse credibility finding. And as I said earlier, I will make up my own mind. However, in accordance with section 424AA, I'm discussing with you the fact that the adverse credibility findings made by the delegate and the two tribunal members could be relevant to my decision-making. It could be relevant because it could be further evidence to support any potential finding I might make about your credibility. Do you 37:53

   (Emphasis added)

   I -Yep

   M - Yes what?

   A - Okay

   M - Okay what?

   I - If you ask any questions I will answer.

   M - Okay. Did you understand what I've said to you?

   I - Yeah, I understand that you have offered me if I need more time, I can have, otherwise I can say now.

   M - That's right. You can tell me now. In response to what I said.

   I - What do you mean by credibility?

   M - Okay, to put it bluntly, means I may not believe you. I may not believe your claims. I may not accept them as being truthful.

   I - If you ask me questions, I may be able to answer you.

   M - Well, we've been talking about things for the last two and a half hours. And I am not saying to you what I think so far. To be honest, I don't know what I think so far and I need to think about your claims very carefully. What I'm basically saying to you is this - and you know, I assume, you know why the two previous members affirmed the decision not to grant you the visa. And the delegate as well. The three decision-makers before me essentially did not accept many of your claims because they did not find you to be credible. I don't have to follow what they decided, I'm not bound by their decisions. But if there is information before me that I consider it could be relevant to my decision-making, I have to tell you about it to be fair to you. Do you understand? Do you understand why those three decision-makers before me decided what they did? Do you understand why the three previous decisionmakers decided what they did?

   I - No

   M - It hasn't been explained to you before?

   I - No

   M - I have serious doubts about that.

   I - I can't remember.

   M - Okay. I'm not going to ask Mr Advisor because I don't want to put you in a position where - I'm sure the applicant knows why he was refused.

   I - Yeah

   M - But I can.

   I - He said the credibility, yes.

   M - Yeah. He did. So, why did you say you didn't know before?

   I - I didn't really understand the question.

   M - Oh, you didn't understand. Okay. But basically, basically, the delegate and the two members before me - whilst they accepted some of your claims - the substantial ones were not accepted. I will make up my own mind. But I will go back to my earlier question, do you want to say something about that?

   I - I answered, like, today I answered the questions they asked me. But if they didn't believe me what can I do? 44:28

   M - I'm going to discuss with you country information about Sri Lanka. There is a lot of country information about Sri Lanka. Throughout the process you've had different people acting for you and different people have provided excerpts of country information. And, the Tribunal has access to a wide range of information about Sri Lanka. Particularly relevant to today is a report by the Australian Department of Foreign Affairs and Trade. Dated 18 December 2015. The report and other information before me essentially indicates that: being a failed asylum seeker; a returnee from a Western country like Australia; Tamil like yourself; having departed unlawfully - that is, without a passport through the proper channels; cumulatively and singularly do not mean or does not mean that there is a real chance or a real risk of serious or significant harm. I know that there have been reports of incidents. I'm aware of that, and you gave me a few this morning as well. But overall, overall, generally speaking, the information before me indicates that-unless there's something about the person in particular, specially If the person or any member of their family, has a profile that would be of any adverse interest to adverse Sri Lankan authorities. The information before me indicates that even if a person has had some association with the LTTE - unless they are of a particular profile - it does not mean that the Sri Lankan authorities are going to be interested in that person. There are reports me before me that basically indicate that individuals who are perceived to be a threat to the integrity of Sri Lanka as a single state because they are or they were perceived to have a significant role in relation to post-conflict Tamil, could be harmed by the Sri Lankan - could be of adverse interest to the Sri Lankan authorities. Furthermore, I will discuss with you submissions which were made in 2012 by Fragaman that relate to the Immigration and Emigration Act of Sri Lanka. Now, I understand that people who are returning to Sri Lanka, a person in your circumstances, will be stopped at the airport probably and asked questions about where you've been. They will be asking you questions about that. The law which allows them to do that, in my view, is a law of general application which applies to people returning. That law is applied in - it is not applied in a discriminatory manner and it is applied for legitimate purposes. Every country has the right to control its entry and exit procedures. So, even if I were to accept that when you go back to - when and if you go back to Sri Lanka, you will be stopped at the airport and asked questions, you may be interrogated - I have to think very carefully about whether a person in your circumstances with your profile could face what amounts to serious or significant harm. Do you understand what I'm saying to you? Do you want to say something about that?

   I - Because I have violated the order or request by them asking me to report and been here for a longer period of time, even if I was questioned at the airport, if they let me go to my village or my place of residence, they may come back again. And don't know what their treatment will be. The government here will say that Sri Lanka is normal and so on, but individually if I go there, because I have not obeyed their request to report to them and come overseas, so I think that will have a very big impact on me once I return there. 53:39

   M - What do you want to say?

   I - Recent news say that they have arrested lots of returnees who has come from overseas who were past LTTE. They have been arrested, I have read in the news.

   M - But they were LTTE, they were connected with the LTTE.

   I - Yep, LTTE as well as LTTE supporters.

   M - So, I wouldn't be surprised if they were of adverse interest to the Sri Lankan authorities.

   I - Because my father was suspected of being an LTTE, so that particular suspicion, they will also pass it on to me. They will suspect me also being an LTTE because my father was.

   M - I don't mean to sound harsh but your father died a long time ago.

   I - Even though he died a long time ago, but, being his son, the suspicion will be there because father was LTTE supporter so the son might continue or maybe. They will suspect in that regard because of the father.

   M - Thank you, I will consider that. Mr Advisor, is there anything you want to say?

   R - Possibly, in relation to that section 424AA, because you put to him together the delegate decision and the two tribunal decisions, and I don't know whether he understood clearly - because it's plain him, the reason, but if you allow me, I have to explain again, I can get instruction, I give.

   M - Well, I've explained it and he understood. He clearly said, subsequently, that he understood the reasons for the refusal and the affirmed [Indiscernible]. And I've spent quite some time on that.

   R - The member, because the two previous RRT decisions are very lengthy, I have concern whether he clearly understood why - I explained, but in a hearing like this, whether he can answer, because he's not capable to answer.

   M - I'm not - I wasn't putting the specific reasons, I was putting the overall findings by the members and the delegate. I am making my own findings, as I said.

   R - Alright, that's my concern.

   M - Apart from that.

   R - Apart from that -

   M - I'm happy to go through it again. If you think the applicant would benefit from me going over it again, I will happily do that. But, as the record will show, a substantial amount of time was spent on that, and the applicant gave a clear indication that he understood. But if you think he has not, I will go through it again. No, please, do you think he has not understood?

   R - I think the two decisions, the reason for - for example, if you consider reason or part of the reason of previous tribunal decisions -that part of previous tribunal decisions, I don't think, you know, it must be explained to him. I don't think -

   M - I'm sorry, I don't mean to be rude, but I'm not quite sure if you understand how a section 424AA operates. I'm not quite sure. I'm not really understanding - it could form part of my decision. I wasn't -

   R - Yeah, your decision, not a part of their decision.

   M - It's my decision.

   R - Part of your decision, yes.

   M - And I explained how - but I will explain it again. I will do that, because you raised it and I want to make sure that it's all covered.

   R - Your discretion member, because my concern whether he clearly understood.

   M - I'll ask him.

   R - Yes

   M - Even though I have asked him, but you raised it. Obviously you see it as an issue. I will raise it again. One comment I will make to you though, Mr Advisor, and I don't mean to impugn you incompetence or any issues, I would have expected you as the person acting for this applicant to have sat him down and gave him advice and explained all to him before today.

   R - We, I explained everything. Even yesterday, I explained two decisions.

   M - Okay. And I didn't want to ask you directly, have you explained it to him, because, as a person acting for him, I would have expected you to, as a professional person, in accordance with the code of conduct, that you would have explained to the applicant why he was refused; why the tribunals affirmed the decisions to - because that is your duty to explain. 1:00:31

   R - I explained, Member.

   M - I'm sure you did.

   R - But I don't understand whether he clearly understood.

   M - I - he seemed to, but I'll go through it again. Okay. Now. Mr X do you understand why the Department refused to give you the visa?

   R - No

   M - Why? Why not? Did your Advisor explain it to you?

   R - Yeah, I mean, he said that they did not believe you. Believe me.

   M - Okay. I just want to double-check something. Are you a legal practitioner?

   R - Yes

   M - Because a client legal privilege would come into it. So I can't ask you what advice you gave him. I can't do that. Okay, unless the applicant decides to tell me. He can waive it.

   R - I don't think, possibly you can, how many hours I spent with him. Today and yesterday.

   M - I did not want to put you in a position where you had to - out of respect to you - and I have no doubt that you made every professional effort to explain it. I'm not doubting that at all. And I specifically said that I did not want to ask you. If you recall. When I was dealing with the issue, I looked at and I said I don't want to ask you personally what advice you gave him. Okay?

   R - Yes

   M - So. I'm not allowed to ask you what advice your current representative had given you or what Fragaman gave you, because they're lawyers as well. But you can tell me if you choose to. But let me just say one thing: I would find it remarkable that neither Fragaman nor your current representative had sat down and explained all to you before today. I would find it remarkable. You understand? So, I'll ask the question again. Do you know why the Department refused to give you the visa?

   I - Yeah, they did not believe me.

   M - Okay, so you know. You know. Do you know why the two Tribunal members before me did not give you a favourable decision? Do you know why?

   I - They also didn't believe me.

   M - Okay. So, we've established that you know that the three decision-makers before me - that is, the Department and the two tribunal members - did not believe you. It doesn't mean I won't believe you. But all what I was saying to you is, the fact that three decision-makers before me did not believe you and reached an adverse credibility finding could be the reason or part of the reason for me affirming the decision. Technically, I did not have to give you a third hearing today. I invited you to a hearing because I thought that was the fair thing to do in your case. And I wanted to make up my own mind whether I believe you or not believe you. I could have easily sent you a letter alerting you to potential issues and waited for your response. And I haven't sat for three hours here, telling you about what you've said before in the course of the other hearings or in the interviews with the Department. Because I wanted to hear your version today and make up my own mind. Do you understand?

   (Emphasis added)

   I - Yes

   M - Do you wanna say something about that?

   I - Yeah, I mean, no one is believing me but, I mean, why did they kill my father? I :07:49

   M - I'm not saying I don't believe you, I don't know what I believe. I genuinely don't know what I believe yet.

   I - Because of my father, father's background, it will affect me.

   M - I understand that's what you are saying. ls there anything else you want to say to me?

   I - No, I have said whatever I can but if you don't believe, don't know.

   M - I don't know what I believe and I will say that again and again and again. I don't know what I believe. I'm going to think very carefully about the evidence. One thing I will say to you and I don't know if you understand that, the matters came back from the courts on two occasions, as you know - not because the courts said you're a refugee. They came back for legal errors. The courts do not assess the merits of the case, they do not say whether a person is a refugee or not. But, their role is to decide whether the tribunal made the legally correct decision. Do you understand?

1. As is apparent from the above extract from the Transcript, the error was repeated by the Tribunal member:-

   “But all what I was saying to you is, the fact that three decision-makers before me did not believe you and reached an adverse credibility finding could be the reason or part of the reason for me affirming the decision”.

2. Whilst the above extracts from the transcript reflect a misunderstanding of s.424A of the Act, it also reaffirms a continual operation of the erroneous understanding of the relevance of the earlier adverse credibility findings and the task that was required to be undertaken by the current Tribunal in its review. The transcript reveals a serious deflection from the Tribunal’s proper task by the erroneous understanding of the irrelevance of the earlier adverse credit findings.

Consideration of whether the applicant had a real and meaningful hearing

1. Materially, in considering whether or not the applicant had a real and meaningful hearing before the Tribunal as required under s.425 of the Act, the Tribunal’s reasons at paragraphs 44 and 45 include the following:-

   44. In accordance with section 424AA, the Tribunal discussed with the applicant the fact that the delegate and the former to Tribunal members essentially decided that the applicant did not meet the criteria for a protection visa on the basis of lack of credibility is relevant to the Tribunal because it could be part of the reasons for affirming the delegate's decision. When invited to comment on or respond to this information and whether any more time, the applicant stated that the Tribunal could ask him anything. He said he answered all the questions that he was asked ·and if they did not believe him before. There is nothing he could do about that.

   45. The Tribunal decided to test the claims and not rely on others' assessments of the applicant's credibility. In consideration of the evidence as a whole and for the stated reasons, the Tribunal agrees with the three different assessments of the applicant's credibility. In reaching its findings, the Tribunal has given regard to the representatives of oral submissions that the applicant's claims have been consistent throughout the process.

2. Paragraph 44 of the Tribunal’s reasons clearly identifies a continuing misunderstanding by the Tribunal member as to the relevance of the adverse credibility findings to the applicant’s credibility. I do not regard the first sentence in paragraph 45, on a fair reading as disavowing the erroneous understanding by the Tribunal member as to the irrelevance of the earlier delegate’s and two Tribunal members’ decisions on credibility. 

3. On its own, the first two sentences in paragraph 45 of the Tribunal’s reasons might be read as indicating that the Tribunal member had disregarded the three different assessments of the applicant’s credibility. However, in light of what is set out in paragraph 44 of the Tribunal’s reasons, it is apparent that it remained a live consideration in the mind of the Tribunal member and it undermines a construction that the Tribunal member has not in any way relied upon the assessment of the delegate or the other two Tribunals in assessing the applicant’s credibility.

Conclusion

1. The two paragraphs in the Tribunal’s reasons are consistent with the deflection from the task that the Tribunal was required to conduct in the review under s.425 of the Act and when taken together with the erroneous understanding as to the oral hearing being discretionary and the serious deflection this had on the oral hearing. These combined matters support the conclusion that the applicant did not have a real and meaningful hearing.

2. In all the circumstances of the present case, I am satisfied that the applicant did not have a real and meaningful hearing, as required under s.425 of the Act.

3. Accordingly, writs will be granted.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  6 June 2017