Cac16 v Minister for Immigration
[2017] FCCA 2202
•13 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAC16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2202 |
| Catchwords: PRACTICE & PROCEDURE – Application to amend originating application –Immigration Assessment Authority failed to consider essential integer of claim – leave to amend refused. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 91R, 424 Migration Legislation Amendment Act (No 6) 2001 (Cth), item 5 of sch.1 Other materials cited: Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2) |
| Cases cited: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 SZTAL v Minister for Immigration & Border Protection [2017] HCA 34 VBAO v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 233 CLR 1; [2006] HCA 60 VBAS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 435; [2005] FCA 212 |
| Applicant: | CAC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1994 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 11 July 2017 |
| Date of Last Submission: | 11 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu, Hodges Legal |
| Solicitors for the First Respondent: | Mr J Pinder, Minter Ellison |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 28 June 2016.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 18 September 2013 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1994 of 2016
| CAC16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who arrived in Australia on 30 July 2012 and lodged an application for a protection visa on 21 December 2012. A delegate of the Minister made a decision to refuse to grant the applicant a protection visa on 18 September 2013 and the applicant applied to the Refugee Review Tribunal[1] (RRT) for review of that decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
On 1 July 2015, the functions of the RRT were transferred to the Administrative Appeals Tribunal (Tribunal). The Tribunal completed the review of the delegate’s decision and on 28 June 2016 made a decision to affirm that decision.
The applicant now seeks judicial review of the Tribunal’s decision. For the reasons that follow, that application must be allowed and the matter remitted to the Tribunal for consideration according to law.
Background and claims
The relevant background to the applicant’s application for a protection visa was set out by the Tribunal at [21] in its statement of reasons for decision as follows:
In summary, the applicant’s claims are his brother joined the LTTE in 1995 and was killed in 2006. One of his uncle’s was shot for being a member of People’s Liberation Organisation of Tamil Eelam (“PLOTE”). Another uncle and a friend were abducted in a white van. The applicant suspects the abductors were in the army and the whereabouts of that uncle and friend remain unknown. His family were forced to relocate from an LTTE controlled area to an area controlled by the Sri Lankan government. The applicant was often caught in village round-ups and was questioned and beaten by the Sri Lankan authorities in 2000-02. He was questioned about his connection to the LTTE and sometimes beaten by the Sri Lankan authorities on other occasions too, such as: an army shooting in his village in 2006; after the death of his brother in 2006; after he returned to his home village from the army controlled areas in 2009, and again after he was hospitalised in 2009 due to injuries from shelling. In 2007 too, he was questioned while visiting Colombo and released on the basis he returned to an LTTE controlled area. He began working as a de-miner in 2009. In August 2012, the Sri Lankan authorities began looking for him and questioned him several times about his de-mining work. The Sri Lankan authorities made disparaging comments to the applicant about him now removing mines he had previously laid as a member of the LTTE. Fearing he would be abducted by a white van (like his uncle had been in the past) the applicant departed Sri Lanka. The Sri Lankan authorities twice contacted his family after the applicant arrived in Australia. His mother has told the Sri Lankan authorities the applicant went to Australia. His surviving brother has faced questioning by the Sri Lankan authorities about the applicant’s whereabouts too and has sought to distance himself from the applicant for that reason. That surviving brother also has a drinking problem and mental health issues, which brought the surviving brother to attention to the Sri Lankan authorities, although the last occasion was in December 2006.
Against this background, the applicant claimed that he feared that he would be harmed upon return to Sri Lanka because:
·of his Tamil ethnicity;
·he would be suspected of being connected to the Liberation Tigers of Tamil Eelam (LTTE);
·of his work removing landmines; and
·he had applied for asylum in Australia and departed Sri Lanka illegally.
On 18 September 2013, a delegate of the Minister refused to grant the applicant a protection visa and the applicant applied for review of that decision.
On 18 February 2015, the applicant attended a hearing conducted by the RRT to give evidence and present arguments relating to the issues arising in respect of the decision under review.
On 28 June 2016, the Tribunal made its decision to affirm the delegate’s decision. The Tribunal was constituted by the same member as the RRT had been constituted.
Tribunal’s decision
The Tribunal found that the applicant was a generally credible witness but that he had subjectively exaggerated the level of risk of harm to himself.
The Tribunal accepted that:
·the applicant’s brother was a member of the LTTE and was killed in 2006;
·the applicant’s uncle was a member of the PLOTE and that he and a friend of the applicant were abducted by people in a white van;
·the applicant was questioned and beaten by the Sri Lankan army, police and Criminal Investigation Department (CID) during village roundups during the shooting incident and after the death of his brother in 2006, when visiting Colombo in 2007, and on his return to his home village in 2009 after being injured in shelling in 2009; and
·the applicant was questioned about his de-mining work in 2012 and that the motivation of the Sri Lankan authorities to question the applicant was a suspicion by the Sri Lankan authorities as to his connection to the LTTE.
The Tribunal noted that the applicant’s evidence did not suggest that the Sri Lankan authorities had targeted him for extra-judicial killing or that they could not find him if they wished to locate him. The Tribunal accepted that the applicant had believed that when he was taken to the bush on one occasion, that he would have been shot were other people not present. The Tribunal however, found that “objectively the evidence does not suggest he was targeted for serious harm by the Sri Lankan authorities”.
The Tribunal accepted that the applicant suffered physical and psychological distress during the questioning and beatings he endured between 2000 and 2009, and the questioning in 2012. The Tribunal however, considered that if the Sri Lankan authorities formed a view the applicant was connected to the LTTE, he would not have been released.
The Tribunal found that the applicant had suffered harm in the past but “when having regard to the non-exclusive instances of serious harm set out in s.91R(2)”, the Tribunal was not satisfied “the harm the applicant suffered during the questioning and beatings was so serious as to be significant physical treatment and therefore do not amount to serious harm.” The Tribunal then went on to consider the applicant’s claims relating to future harm if he were to return to Sri Lanka.
Having referred to country information relating to the circumstances affecting Tamils in Sri Lanka, the Tribunal accepted that Tamils may continue to face a degree of harassment and discrimination in Sri Lanka. The Tribunal was however, not satisfied “when having regard to s.91R(1)(b) and to the non-exhaustive instances of serious harm set out in s.91R(2)” that this harm amounted to “serious harm”.
The Tribunal stated at [29] of its reasons:
… Having considered the applicant’s individual circumstances, the Tribunal is satisfied the applicant faces a remote chance and therefore not a real chance of serious harm because he is a Tamil.
The Tribunal did not accept that the applicant had any profile which would warrant the Sri Lankan authorities targeting him for harm. Further, the Tribunal did not accept that he would be imputed with any anti-government or pro-LTTE opinion for any reason including that:
·he is a Tamil; or
·he was questioned in the past about connection to the LTTE; or
·his brother was in the LTTE or his uncle was in PLOTE or his friend had disappeared; or
·he departed Sri Lanka illegally and applied for asylum.
Consideration
There were four grounds in the amended application filed by the applicant. At the hearing, the applicant abandoned ground 2 and sought leave to rely on two further grounds. That leave was refused.
First ground: unreasonableness
This ground is focused upon the Tribunal’s finding at [24] of its reasons, that the harm suffered by the applicant in the past was not “so serious as to be significant physical treatment”. The gravamen of the complaint is expressed in the applicant’s written submissions as follows:
… despite the AAT accepting that the applicant “endured beatings” between 2000 and 2009 and during the questioning in 2012 and despite impliedly accepting that there was an occasion when there was a threat to the applicant’s life the AAT inferred that the harm suffered in the past did not amount to serious harm, reason being the AAT was not satisfied that the questioning and beatings was so serious as to be significant physical treatment.
(Emphasis in original)
The applicant expresses the error in terms of unreasonableness. The ground however, is better understood as a contention that the Tribunal misunderstood the meaning of “serious harm” and so failed to ask itself the right question and constructively failed to exercise its jurisdiction.
The Minister argued that the Tribunal’s reasons, properly understood, do not disclose any misunderstanding of the phrase “serious harm” and, in any event, any error in that respect concerning harm suffered in the past, did not affect the Tribunal’s decision.
The relevant parts of the Tribunal’s reasons are as follows:
23.As put to the applicant during the hearing, on every occasion after he was questioned, the applicant was never charged with any offence and was released. He said he believes that is because the Sri Lankan authorities wanted to kill him extra-judicially, but could not find him because he moved around a lot. The Tribunal noted his evidence did not suggest the Sri Lankan authorities targeted him for extra-judicial killing or could not find him if they wished to locate him. He referred to an occasion where he was taken to the bush and he believes he would have been shot were it not that other people were present. The Tribunal accepts the applicant may subjectively believe that to be the case, but objectively the evidence does not suggest he was targeted for serious harm by the Sri Lankan authorities. The Tribunal acknowledges the applicant suffered physical and psychological distress during the questioning and the beatings he endured between 2000 and 2009 and the questioning in 2012. However, the Tribunal considers if the Sri Lankan authorities formed a view the applicant was connected to the LTTE, the applicant would not have been so released.
24.For the above reasons, the Tribunal finds the applicant has suffered harm in the past. But when having regard to the non-exclusive instances of serious harm set out in s.91R(2), the Tribunal is not satisfied the harm the applicant suffered during the questioning and beatings was so serious as to be significant physical treatment and therefore do not amount to serious harm. The Tribunal now assess the applicant’s claims related to future harm if he returns to Sri Lanka.
(Emphasis added)
At first blush, these paragraphs suggest that the Tribunal understood that:
·anything less than extra-judicial killing was not “serious harm”;
·if treatment was not “significant physical treatment” then it did not amount to “serious harm”; and
·being detained and beaten to the extent that the victim underwent physical and psychological distress was not “significant physical treatment”.
If, on a proper reading of the Tribunal’s reasons, it did proceed on any or all of those understandings, the Tribunal misunderstood what is meant by “serious harm” within the meaning of the Act. The question, then, would be whether that misunderstanding affected the exercise of its jurisdiction.
The Tribunal deals at [23] of its reasons with the applicant’s explanation as to why he was released from detention by the authorities. That explanation was that the authorities wanted to kill the applicant outside the judicial framework. In this respect, the applicant gave an example of one occasion when he was taken to the bush and he feared that he would be killed. The Tribunal implicitly accepted that the applicant had been taken to the bush and feared that he would be killed. However, the Tribunal, found that “objectively the evidence does not suggest he was targeted for serious harm”. This reasoning suggests that the Tribunal rejected the applicant’s explanation for why he was released because it equated extra-judicial killing with “serious harm”.
When the reasoning is seen in the context of what follows in the balance of [23] and [24] of the Tribunal’s reasons, the better view is that the Tribunal’s understanding of “serious harm” was not that it was limited to extra-judicial killing but rather, to physical treatment beyond detention and beating. The Tribunal explained in [24], that while it accepted that the applicant had suffered harm in the past; that did not amount to “serious harm”. In light of the proximity of that reasoning to what was said in [23], I conclude that that was what the Tribunal had in mind when it was dealing with the applicant’s claim concerning extra-judicial killing in [23].
Before considering the proper understanding of the Tribunal’s reasoning in [24], it is necessary to briefly explain the provision in s.91R(2) of the Act.
At the time, relevant to the decision made by the Tribunal, in order to satisfy the criterion for the grant of a protection visa in sub-s.36(2)(a) of the Act, the visa applicant had to fall within the definition of “refugee” in Article 1A(2) of the Refugees Convention[2] as amended by the Refugees Protocol (Convention). That meant, amongst other things, that the applicant had to establish that he or she had a “well-founded fear of persecution” for one of the reasons enumerated in the Convention. Section 91R was introduced into the Act in 2001[3] to address what was perceived to be an extension of the accepted meaning of that phrase in a number of decisions of the Federal Court[4]. That section relevantly provided:
[2] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).
[3] By item 5 of sch.1 to the Migration Legislation Amendment Act (No 6) 2001 (Cth).
[4] See VBAO v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 233 CLR 1; [2005] HCA at [10] and [16] (Gummow J) and Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22 at [87] and [90] (Gageler J).
91R Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
…
(b)the persecution involves serious harm to the person; and
…
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill‑treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
…
(Emphasis in original)
Sub-section 91R(1)(b) and s.91R(2) of the Act do not replace the test of “persecution” with a test of “serious harm”; rather, those provisions require an applicant to have a well‑founded fear of persecution involving “serious harm”: see VBAS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 435 at [18]; [2005] FCA 212.
The Tribunal appears at first, to have recognised that the instances of “serious harm” set out in sub-ss.91R(2)(a)-(f) of the Act were not intended to constitute an exclusive definition of that concept. The Tribunal referred to those sub-paragraphs as “non-exclusive instances of serious harm”. Immediately after saying that however, the Tribunal stated that it was:
… not satisfied the harm the applicant suffered during the questioning and beatings was so serious as to be significant physical treatment and therefore do not amount to serious harm.
(Emphasis added)
While one might easily treat the reference in this passage to “treatment” instead of “ill-treatment” as a slip, it is not so easy to overlook the word “therefore”. That word suggests that the Tribunal proceeded on the basis that the harm suffered by the applicant was not “serious harm” simply because it did not fall within sub-s.91R(2)(c) of the Act. On a plain reading of the Tribunal’s reasons, this is what the Tribunal meant. Although it does not sit comfortably with the Tribunal’s earlier reference to “non-exclusive instances”, I see no warrant for rewriting the Tribunal’s reasons to overcome what is more than simply infelicitous language.
There are three difficulties attending the Tribunal’s reasons, as so understood:
·first, its reasons did not deal with the finding that the applicant had undergone psychological distress;
·secondly, the Tribunal in fact treated the instances of serious harm in s.91R(2) of the Act as exclusive; and
·thirdly, as suggested at [22] above, the Tribunal determined that being detained and beaten to the extent of undergoing physical and psychological distress was not “significant physical treatment”.
This third difficulty arises even if I am wrong about the second difficulty. For that reason it requires some further attention.
One of the Minister’s responses to this issue was that the word “significant” indicates a circumstantial qualification to the types of harassment and ill-treatment that will constitute “serious harm” and requires a qualitative judgment involving the assessment of matters of fact and degree: cf Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610 at [45]; [2015] HCA 22 (WZAPN). So much may be accepted; however, the fact that there is a qualitative judgment involved in determining whether treatment amounts to persecution, does not mean that the question is left in its entirety to the Tribunal.
As Gageler J explained in WZAPN at [91], the introduction of s.91R of the Act in 2001 was a deliberate legislative return to the concept of persecution as expounded by Mason CJ in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 (Chan) and as elaborated by McHugh J in Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1; [2000] HCA 55 (Ibrahim).
In Chan, Mason CJ said at [11]:
… When the Convention makes provision for the recognition of the refugee status of a person who is, owing to a well-founded fear of being persecuted for a Convention reason, unwilling to return to the country of his nationality, the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns. … The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.
In WZAPN, Gageler J summarised the reasons of McHugh J in Ibrahim at [89]:
Subsequently, in Minister for Immigration and Multicultural Affairs v Haji Ibrahim, McHugh J linked the requisite seriousness of the harm feared by a putative refugee to what he identified as the principal rationale of the Refugees Convention. The parties to the Convention, he said, “should be understood as agreeing to give refuge to a person when, but only when, he or she ‘is outside the country of his [or her] nationality and is unable or, owing to such [well-founded] fear, is unwilling to avail himself [or herself] of the protection of that country’”. Acknowledging the probable impossibility of framing an exhaustive definition of persecution for the purpose of the Convention, McHugh J explained it to be consistent with that identified rationale to understand persecution ordinarily to involve conduct which, amongst other things, both: (1) “constitutes an interference with the basic human rights or dignity of [a] person”; and (2) “is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned”.
(Citations omitted and emphasis in original)
Against that understanding of the meaning of “persecution” in the definition of a “refugee” in the Convention, it was not open, as a matter of law, for the Tribunal to conclude that the applicant had not suffered persecution in the past. While the precise scope of that term cannot, and should not, readily be identified, there is no question that being detained and beaten on a number of occasions falls within it. No person can be expected to tolerate it, and refusal to return to face it is an understandable choice of the applicant. The real question is not whether the Tribunal misunderstood the meaning of “persecution” in [23] and [24] of its reasons, but whether that misunderstanding affected its decision.
The Minister argued that any error related only to findings of what had happened in the past and not what might occur in the future. In that respect, he argued that the “circuit breaker” was the change in the circumstances in Sri Lanka that occurred after the end of the civil war in 2009: see [30] of the Tribunal’s reasons.
The difficulty with the Minister’s argument is that, the Tribunal assessed the future faced by the applicant as including only a remote chance of “serious harm”. Given what it had said at [24] of its reasons, little comfort can be drawn from its reliance, at [30], on the “instances of serious harm set out in s.91R(2)”. The Tribunal did not, at any stage of its reasoning, reveal any reasoning process that showed that it entirely rejected the possibility that the applicant might again be detained and beaten. In light of its conclusion at [24], the proper inference is that it thought it did not need to exclude that possibility because such treatment did not amount to “serious harm” and so did not constitute “persecution” within the meaning of the Convention.
The Tribunal did not undertake its review of the delegate’s decision by reference to a proper understanding of the criteria for the grant of a protection visa. For that reason, it constructively failed to conduct a review and its decision was not made “under” the Act. Its decision is affected by jurisdictional error and must be set aside.
Third ground: intentional infliction of harm in the meaning of “significant harm”
This ground alleges that the Tribunal fell into the same jurisdictional error as alleged by the appellants in SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556; [2016] FCAFC 69 (SZTAL). The appellants in SZTAL contended that “intention” under s.5(1) of the Act was made out when a person knowingly did an act that would ordinarily inflict pain or suffering or cause extreme humiliation. Special leave to appeal from the decision in SZTAL was granted by the High Court.
The applicant stated in its written submissions that if SZTAL were to succeed, then they would be relying on [51] of the Tribunal’s reasons where it stated:
… The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’. …
The Tribunal in coming to this conclusion cited and applied the reasoning in SZSPE v Minister for Immigration & Border Protection [2013] FCCA 1989 and SZSPE v Minister for Immigration & Border Protection [2014] FCA 267. The Tribunal said at [51] of its reasons that:
… Moreover, the definitions of ‘cruel or inhuman treatment or punishment’ in s.5(1) requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. Mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation. …
(Citations omitted)
At the time of the hearing, the High Court was yet to deliver its judgment on the appeal of SZTAL. The applicant therefore urged the Court to adjourn his matter until SZTAL was determined and finalised. I adopted to instead hear the matter in its entirety and reserve my judgment awaiting the decision of the High Court.
The High Court delivered its judgment on the appeal of SZTAL on 6 September 2017: SZTAL v Minister for Immigration & Border Protection [2017] HCA 34. The appeal was dismissed by majority, the Court finding that the reference in the Act to “intentionally inflicting” and “intentionally causing” is to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective intention: see [26] (Kiefel, Nettle and Gordon JJ) and [101] and [114] (Edelman J).
In light of the High Court’s decision, the third ground of this application must be rejected.
Fourth ground: delay in making the decision
The Tribunal held a hearing on 18 February 2015 but did not make its decision until 28 June 2016. The applicant argues that this delay created a substantial risk that the Tribunal’s capacity to assess the applicant’s case was impaired and, as a result, the applicant was denied procedural fairness.
In NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 (NAIS) the High Court held that the delay between a hearing and decision (of nearly 4½ years) had led to a denial of procedural fairness. Gleeson CJ held at [10], that 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. Heydon and Callinan JJ held at [168], that in light of the delay, it was 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.
Cases of unfairness caused by delay are rare: see NAIS at [5] (Gleeson CJ) and [174] (Heydon and Callinan JJ); MZZEE v Minister for Immigration & Citizenship [2013] FCCA 352 at [17] (Judge Hartnett), SZKJV v Minister for Immigration & Citizenship (2011) 120 ALD 52 at [25]; [2011] FCA 80 (SZKJV) (Reeves J), SZFNX v Minister for Immigration & Citizenship (2010) 116 ALD 85 at [133]; [2010] FCA 562 (Barker J) and MZXRE v Minister for Immigration & Citizenship (2009) 176 FCR 552 at [80]; [2009] FCAFC 82 (Graham J).
Delay, even significant delay, is not of itself sufficient. In each case there must be shown some flaw in the process of arriving at the decision that can reasonably be attributed to the passage of time. This is so, whether the decision-maker is a Court, a Tribunal, or some other administrative official: see Minister for Immigration & Citizenship v MZYNN (2012) 133 ALD 479 at [32]; [2012] FCA 1177 (Gray J). None has been demonstrated here.
First, the delay here was 16 months, nowhere near the delay in NAIS.
Secondly, unlike the Tribunal in NAIS, the Tribunal here acknowledged at [6] of its reasons, the “passage of time since it conducted the hearings”. The Tribunal however, in an apparent attempt to overcome that, stated that it had listened to the electronic recording of the hearing prior to finalising its decision.
Thirdly, the applicant’s demeanour at the hearing played no part, or potential part, in the Tribunal’s decision. It accepted the applicant as a generally credible witness and only found that he had “subjectively exaggerated” the level of risk of harm to himself by reference to the independent country information.
In those circumstances, I am not satisfied that the Tribunal’s decision was affected by the delay between the hearing and the decision.
The applicant also contends in this ground that he was denied procedural fairness because the Tribunal failed to put him on notice of a country report relied on by it. In his written submissions, the applicant shifted this argument slightly so that he relied on a breach of s.424A of the Act rather than procedural fairness at large. However, the Tribunal was not obliged by that provision to put the applicant on notice of the country report because it was not specifically about him: see sub-s.424A(3)(a) of the Act.
The fourth ground is rejected.
Conclusion
The Tribunal constructively failed to exercise its jurisdiction to review the decision of the delegate. Its decision must be set aside and an order made requiring it to determine the application for review according to law.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 13 October 2017
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