CCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 1067
•22 August 2022
FEDERAL COURT OF AUSTRALIA
CCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1067
Appeal from: CCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 167 File number(s): NSD 277 of 2022 Judgment of: RARES J Date of judgment: 22 August 2022 Catchwords: ADMINISTRATIVE LAW – whether delay in making of decision by Administrative Appeals Tribunal constitutes procedural unfairness resulting in jurisdictional error – where Tribunal made decision one month after third hearing but 21 months after first hearing – where Tribunal acknowledged delay, convened further hearing and listened to audio recording of earlier hearing – where Tribunal relied heavily on objective facts rather than demeanour to reach conclusion – Held: appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 414 and 425 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 23
Tassbet Ltd v Morrow (2015) 233 FCR 46
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 57 Date of hearing: 22 August 2022 Counsel for the Appellant: Mr O Jones Solicitor for the Appellant: Turner Coulson Immigration Lawyers Counsel for the First Respondent: Ms K Hooper Solicitor for the First Respondent: Minter Ellison ORDERS
NSD 277 of 2022 BETWEEN: CCF18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
22 AUGUST 2022
THE COURT ORDERS THAT:
1.Leave be granted to the appellant to file an amended notice of appeal substantially in the form served on the first respondent on 9 August 2022 by close of business 22 August 2022.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal from the decision of the Federal Circuit and Family Court of Australia (Division 2) to refuse to issue a constitutional writ to quash the decision of the Administrative Appeals Tribunal, made on 20 March 2018, that affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa: CCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 167.
The sole ground of appeal is that her Honour erred in finding that the delay in the Tribunal making its decision on 20 March 2018, after a first hearing held on 14 July 2016, a second hearing on 9 August 2016 and a third hearing on 28 February 2018 did not result in procedural unfairness, namely the failure of the Tribunal to carry out a review pursuant to s 414 of the Migration Act 1958 (Cth), so as to amount to a jurisdictional error.
Background
The appellant is a citizen of the People’s Republic of China, from Fujian Province. At the time of the Tribunal’s decision, her adult son lived in New Zealand and her husband remained in China. She arrived on a visitor visa in August 2009 to visit her sister, who is an Australian citizen. Her visitor’s visa had been granted two months earlier, in June 2009. She had previously travelled to Australia and stayed for about six months in 2007 and 2008.
The appellant first applied for a protection visa on 14 July 2010. Her essential claim was that she was a Yiguandao practitioner, known as I-Kuan Tao, a religious practice to which she claimed her sister had introduced her on her first visit. A delegate refused to grant the appellant a protection visa under s 36(2)(a) of the Migration Act 1958 (Cth).
The Refugee Review Tribunal (RRT) had affirmed the decision of that delegate.
However, she was able to lodge a second application for a protection visa on 21 August 2013 because of the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 23, which required the RRT to consider an application for a protection visa both on refugee grounds under s 36(2)(a), and also on complementary protection grounds under s 36(2)(aa).
After the delegate conducted an interview with the appellant and formed an adverse view, the delegate refused to grant the protection visa under s 36(2)(aa).
The Tribunal said that it had considered all the evidence on its file, including the Department’s files in relation to the first application for a visa under s 36(2)(a). It noted that the appellant had relied on medical evidence of her sister’s depression and memory loss and her own medical condition. The appellant had provided evidence to the Tribunal of her diagnosis of suffering from post-traumatic stress disorder, major depressive episode and anxiety symptoms with panic attacks.
The Tribunal summarised her claims for complementary protection as follows. The appellant claimed that:
·she was at risk of being jailed, tortured or mistreated because of her belief in, and practice of, Yiguandao if she returned to China because she had taken Yiguandao books back to China in February 2008 that customs officials confiscated at the airport;
·more than a month later, she had been questioned at a local police station about her practice of Yiguandao and when leaving, she was pushed by a police officer and her shoulder was dislocated, requiring medical treatment;
·she had been put under surveillance by community members, acting under instructions from the police;
·if she returned to China, she would be sent to a mental hospital because the authorities would use the fact that she suffers from depression to have her committed;
·her husband had been questioned and threatened by the police because she had overstayed her visa in Australia and the Chinese authorities knew that she had applied here for a protection visa, which they saw as an act of betrayal;
·she did not know that Yiguandao was banned in China until after she was arrested;
·she decided to apply for a visa to escape China and were she to return to China, she risked being jailed or killed because she had drawn attention to her belief in Yiguandao;
·restrictions against Yiguandao would not be lifted and she was not willing to join a government-approved Taoist organisation;
·she had had nightmares about what had happened and would happen to her in the future for which she had sought psychiatric treatment;
·the Chinese authorities had harmed her physically in the past, continued to make threats against her and had questioned members of her family;
·the authorities were sending strong signals that they were keeping a close eye on her and her family members and the latter were still restricted in many ways, including having their phones tapped.
The proceeding in the Tribunal
On 19 May 2016 the Tribunal first wrote to the appellant’s solicitor and migration agent, inviting her to a hearing under s 425 of the Act. The letter required that, by 7 July 2016, she provide a written statement setting out all claims made and maintained and scheduled the hearing for 14 July 2016. The first hearing occupied about two and three-quarter hours during which the appellant and her sister gave evidence through an interpreter. The Tribunal adjourned and had a second hearing on 9 August 2016 that lasted two hours at which the appellant and her sister gave further evidence.
On 20 July 2017 the appellant’s solicitor wrote to the Registrar of the Tribunal referring to the hearing on 9 August 2016 and sought information as to when the Tribunal would be making a decision. The Tribunal made no response to that inquiry until it sent a letter to the solicitor on 13 February 2018 inviting the appellant to a further hearing that it initially scheduled for 28 March 2018. That letter required the appellant to make a written statement setting out all claims she made and maintained to be provided by 21 March 2018, and envisaged that the appellant may wish to have witnesses give evidence at the hearing who had not given evidence before. In the invitation letter the Tribunal said:
The Tribunal apologies [sic] for the regrettable delay in finalising this matter.
The Presiding Member has scheduled a further hearing for your case. The Tribunal notes that the purpose of the hearing is to discuss your involvement in I-Kuan-Dao in Australia.
(emphasis added)
The letter noted that the Tribunal might wish to take evidence from the person, given the acronym CCCC, said to be in charge of the temple at which the appellant practised, and asked for information as to CCCC’s contact details. It also attached a copy of the most recent report from the Department of Foreign Affairs and Trade (DFAT) on China published on 21 December 2017 (the 2017 DFAT report), and drew attention to what that report said about Yiguandao practitioners.
The appellant’s solicitor wrote and asked for the hearing to be rescheduled. On 14 February 2018, the Tribunal acceded to that request bringing the third hearing forward to 28 February 2018. The invitation letter again noted that the purpose of the hearing was to discuss the appellant’s involvement in Yiguandao, asked for the information about CCCC and drew attention to the 2017 DFAT report. The third hearing lasted about 2 hours. The appellant, her sister, CCCC and Ms A gave evidence there to the Tribunal assisted by an interpreter.
The Tribunal’s reasons
The Tribunal gave comprehensive reasons for its decision. However, during the course of its reasons, on numerous occasions the Tribunal referred to having considered the totality of the evidence, and in analogous terms it referred to the way in which it approached its assessment of the claims and evidence in pars 42 and 43 as follows:
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
The Tribunal has had regard to guidelines issued by the Administrative Appeals Tribunal on the assessment of credibility in protection visa cases. The Tribunal has taken into account the fact that the applicant’s formal education was limited and that she was nervous appearing before the Tribunal. The Tribunal acknowledges the difficulty facing asylum seekers who are asked to recall traumatic events on multiple occasions over a prolonged period time. The Tribunal was on leave for a significant period of 2017 and regrets the delay in finalising this matter. The Tribunal has recently listened to the audio recording of the hearings held in this matter again to ensure that its findings are accurate and it has carefully considered all the evidence before it in reaching its conclusion.
(emphasis added)
However, as the appellant pointed out in the course of argument, at no point did it state expressly whether it had, or had not, taken into account the demeanour of any witness, in particular the appellant, or how it had dealt with any issue of demeanour or credibility arising from the way in which the witnesses gave evidence before it.
The appellant also noted that the Tribunal did not explain how long its “significant period” of leave in 2017 took, nor how it had assessed the credibility of the appellant or her witnesses. Nonetheless, at various points in its reasons, it gave the appellant the benefit of the doubt, saying, for example, that it was prepared to accept that if she returned to China, she may wish to continue to express her beliefs in Yiguandao by attending gatherings with other practitioners, by reading religious material and praying. The Tribunal accepted that the appellant’s sister suffered from anxiety and depression and said that it had taken that into account in assessing her evidence as a witness. It pointed out that the delegate had made a mistake in treating the medical evidence relating to her sister as being referable to the appellant. It found that there was no suggestion that the appellant had set out to create the delegate’s erroneous impression on that issue.
The Tribunal found that the timing of the appellant’s departure from China undermined her claim that she had fled in 2009 because she was of adverse interest to the Chinese authorities. It reasoned that since she had remained in China until August 2009 despite being granted a visitor visa in June 2009, her conduct undermined her claim, based on having been detained in March 2008, that she feared harm, were she to return. The Tribunal referred to the appellant’s evidence that she did not practice Yiguandao after returning to China in 2008, but nonetheless, had attracted the attention of the authorities because she had possessed books that had been discovered at the airport.
The Tribunal found her evidence to have been under surveillance was vague and unpersuasive. It found (at par 50):
The Tribunal does not accept that the applicant has credibly explained why, if she was afraid of being harmed, she did not leave China at an earlier point in time; particularly given she was granted a visitor visa on 17 June 2009. Questioned about why she didn’t leave China sooner if she feared the authorities, she told the Tribunal she was waiting for her sister to get her a visa, she didn’t have people with whom she was familiar other than in Australia, and she didn’t want to go somewhere where she was not familiar with people. However, the Tribunal considers it is reasonable to expect that if she feared being harmed as claimed then her primary concern would be to avoid the risk of harm, not whether she was familiar with people at her destination. These doubts are deepened by the fact that, despite being granted a visitor visa by the Australian authorities in June 2009, the applicant remained in China for almost two months until August 2009. The Tribunal finds that the timing of the applicant’s departure from China undermines her claims that she left China because she feared being harmed and suggests that, at the time she left China, she did not fear being harmed or targeted for any reason.
(emphasis added)
The Tribunal pointed out inconsistences between the appellant’s written claims that all her family members were under surveillance by Chinese authorities and her oral evidence that her husband was the only family member with problems arising because of her profile.
The Tribunal found that the appellant had left China legally, travelling without difficulty on a passport issued in her own name, which suggested that she was not of any serious interest to the Chinese authorities at that time, and that this fact tended to undermine her claims that she was under surveillance in China.
It found that she had remained in Australia after the expiry of her visitor visa and only applied for protection in July 2010. This led to it concluding that her claims to fear harm from what, allegedly, had occurred to her on her return in 2008 were contrived and unconvincing.
The Tribunal recorded that it had asked the appellant whether, if her claims about her experiences in China were accepted, she could explain why the Chinese authorities would be motivated only in October 2010 to question her husband about her activities. It found her evidence unpersuasive that she did not have any profile and the authorities had continued to be suspicious of her simply because of the books that had been confiscated on her arrival in March 2008.
The Tribunal said that it was concerned also by inconsistencies, that it specified, between the appellant’s oral evidence and her husband’s written statement. In particular, it found that she had given evidence that her husband had been continuously employed for 20 years yet her husband, in his written statement dated 10 April 2015, had said that, after he was questioned and detained by authorities in October 2010, he had been unemployed ever since he had handed his resignation to his employer. The Tribunal rejected the appellant’s explanation that, after her husband’s resignation, he had been invited back to his position. It found that that explanation was still inconsistent with her husband’s statement that he had been unemployed ever since October 2010. The Tribunal also did not accept the husband’s evidence in his statement as to what had happened to him or that he had ever attracted adverse attention of the Chinese authorities due to his wife being a person of interest to them.
The Tribunal found other aspects of the appellant’s evidence improbable and unpersuasive. It referred to her evidence when it questioned her as to what she had planned to do in China after she returned in 2008, in particular, in relation to why she had taken the books back to China. She claimed to the Tribunal that she had only become aware that Yiguandao was banned following the confiscation of her books when her sister found out about this online. It then referred to the appellant’s subsequent attempt to clarify her evidence as to when she said that she found out about the ban, saying that it was as a result of being taken to the police station and later when she spoke to her sister. The Tribunal found that evidence difficult to accept, particularly because she had said that she had taken the books back to China because she wanted to practise there. It found that her evidence about taking the books back to China difficult to reconcile with her evidence she did not discover that Yiguandao was banned until March 2008 which was well over a month after she claimed that customs officials had confiscated the books.
The Tribunal also explained other concerns about the appellant’s oral evidence and written claims. It referred to her evidence that the appellant and her sister had given, at the first and second hearings, that the sister had returned to China on multiple occasions, yet had not experienced any harm. The Tribunal acknowledged that, as an Australian citizen, the sister was able to travel to China on a temporary basis and was therefore in a position distinguishable from that of the appellant. In the third hearing, the appellant reiterated that her sister had been able to travel to China in June 2017 without any difficulty because she was an Australian citizen. However, it found that her sister had told it, in the third hearing, that when she returned in 2017, she had been targeted by Chinese authorities because of her own involvement in Yiguandao but, nonetheless, had been able to travel into and out of China legally, although she had been required to register with the police within 20 hours of her arrival. The Tribunal found that the sister had made the claim as to her difficulties in 2017 as an attempt to assist the appellant to obtain a favourable outcome. It found that the sister was not an independent witness and placed no weight on her evidence of what she claimed had occurred in China in 2017.
The Tribunal accepted that the appellant and her sister may have had involvement with Yiguandao since 2007 and placed no adverse weight on relatively minor inconsistencies between their evidence as to when the appellant’s involvement began.
The Tribunal also found difficulties in accepting the content of a handwritten and unauthenticated document that the appellant had provided it about her claims to have suffered from police actions in China.
The Tribunal was not satisfied, having considered all the evidence, that any mental health conditions, that the appellant had, were attributable to her claimed past experiences in China. It found that the appellant’s Australian medical evidence had been prepared in the context of her ongoing application for a protection visa and, so, reflected her self-reported account of her experiences in China.
Having considered all of the evidence before it, the Tribunal did not accept as credible the appellant’s claims to have attracted adverse attention from Chinese authorities. Nonetheless, it accepted that she did suffer from mental health problems, albeit that this finding did not affect its assessment of the credibility of her claims. It found:
For all the reasons set out above, the Tribunal finds that the applicant’sclaims that she has attracted the adverse attention of the Chinese authorities are not credible. The Tribunal does not accept that she took Yiguandao books back to China or that these books were discovered by officials at the airport or that she was detained and/or questioned by customs officials at the airport or that she planned to practice Yiguandao in China at this time or that she was subsequently detained, questioned and assaulted by the Chinese authorities, and/or that she was pushed down the stairs by police, or that her activities in China were monitored and that she was subject to surveillance as claimed. The Tribunal rejects, in their entirety, her claims that she attracted the adverse attention of the Chinese authorities when she returned to China in 2008 because of her involvement with or interest in Yiguandao. The Tribunal finds that at the time the applicant departed China in August 2009 she was not of adverse interest to the Chinese authorities for any reason and rejects her claims that she travelled to Australia because she was afraid of being persecuted because she was, or was perceived to be, a Yiguandao practitioner.
Because the Tribunal does not accept that the applicant’s claims that sheattracted the adverse interest of the Chinese authorities because of her claimed involvement in Yiguandao, the Tribunal does not accept that the applicant’s husband ever attracted the attention of the Chinese authorities for any reasons related to the applicant’s involvement in Yiguandao. Specifically, the Tribunal finds not credible the applicant’s claim that her husband was interrogated about her involvement in Yiguandao (either in China or Australia) or because of activities the applicant engaged in Australia or her immigration history or because they believed she had applied for a protection visa. The Tribunal does not accept that the applicant’s husband was questioned by the Chinese authorities on 19 and 20 October 2010 or at any other time. The Tribunal is not satisfied that the applicant has been interrogated, detained or monitored by the Chinese authorities for any of the reasons claimed. It follows that the Tribunal does not accept that the applicant’s husband has lost his employment or that he is subject to monitoring because of the applicant’s claimed profile. The Tribunal does not accept that the applicant has a profile of any interest to the Chinese authorities and does not accept that her husband or any other family members have been questioned, threatened, or otherwise harassed, monitored, or that their phone lines are tapped or that they have otherwise been targeted because of the applicant’s claimed profile.
(emphasis added)
The Tribunal considered whether the appellant was a Yiguandao practitioner. Despite its reservations about whether she would be motivated to practice were she to return to China, it accepted that, were she to return, she would have a low level involvement and may wish to continue to express her beliefs by attending gatherings with other practitioners, reading religious materials and praying.
The Tribunal referred to her written claim, at one of the hearings, that if she returned to China, the appellant would have to go to a mental hospital. At the third hearing, the Tribunal put country information to her, including the 2017 DFAT report and a report of an academic, that suggested that Yiguandao was in a “grey area”, because it was not listed as an evil cult and the Chinese authorities had permitted leaders of the sect to visit China. The Tribunal assessed the risks to Yiguandao practitioners in China of suffering harm based on the material canvassed at the third hearing, including from CCCC who, it found, was master of the Marsfield Sydney temple and a Taiwanese national who regularly travelled into and out of Australia. It also considered the evidence, at the third hearing, of another witness, Ms A, who was also a Yinguando practitioner here. Ms A had met the appellant in 2011.
It found that country information indicated that there was no real risk in China that ordinary Yiguandao practitioners would face significant harm for reasons relating to their religion. The Tribunal was not satisfied that the appellant’s involvement in Yiguandao in Australia was currently known to Chinese authorities. The Tribunal did not accept that, even if the appellant’s involvement in, or practice of, Yinguando were to become known to Chinese authorities, having regard to the country information to which it referred it, there was a real risk that she would be subject to significant harm were she to return to China. It found that whether the appellant had followed Yiguandao in Australia, she had not engaged in any public preaching here and would not wish to do so were she to return to China. It was not satisfied based on the country information that there was a real risk she would suffer significant harm for that reason, and therefore was not satisfied that she met the criteria for complementary protection.
The Tribunal also noted that in the third hearing the appellant claimed that she was taking antidepressant medication to treat her mental illness, but had not provided medical documentation to substantiate that treatment. The Tribunal considered the possibility that the appellant was taking medication for her illness. It found that she may suffer from depression and anxiety, but it was not satisfied that there was a real risk that she would suffer significant harm for reasons related to her mental health were she to return to China.
It did not accept that she was a political dissident or would be perceived as a dissident because of her involvement in Yiguandao in Australia or that, based on the recent 2017 country information, she would suffer harm if she practised in China on her return.
In addition, it found that Chinese authorities would not use her depression as a pretext to detain her involuntarily in a psychiatric institution or mental hospital in China for any reason, including her mental health, and that, even if she were unable to access medical treatment for depression and anxiety in China, there was no real risk that she would suffer significant harm within the meaning in s 36(2A) of the Act.
The Tribunal also found that there was no real risk that the appellant would suffer significant harm because she was a failed asylum seeker due to the overstay of her visitor visa, the length of the time she had been in Australia, her application for a protection visa, her involvement in Yiguandao practice, her Yiguandao religion or any other reason. Accordingly, it was not satisfied that she was entitled to complementary protection under s 36(2)(aa) of the Act and affirmed the delegate’s decision.
The trial judge’s decision
The trial judge considered the three grounds of review argued before her. However, only the first of those grounds is the subject of the appeal. Her Honour found that it was necessary to look at all of the circumstances of the case to determine whether the Tribunal’s delay in its resolution of the review of the delegate’s decision between the first and second hearings, in 2016, and the third hearing and its decision in 2018 created a real and substantial risk that its capacity to assess her or other witnesses’ evidence, or otherwise perform its statutory function to conduct the review, had been impaired, as explained in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470.
Her Honour did not accept the Tribunal’s delay had caused the review to miscarry. She acknowledged that the Tribunal’s explanation for its delay set out in par 43 of its reasons might not have been as fulsome as the appellant would have liked. However, she found that the Tribunal had explained adequately at least part of its delay. She held that it was not required to identify the precise period of time during which the member was on leave or the reasons for that leave. Her Honour found that the appellant had not established the delay was capricious or unjustified. She rejected, as unsupported by any evidence, the appellant’s contention that the Tribunal had delayed its review to await publication of country information that would be adverse to the appellant. Her Honour found that, after having taken leave, the Tribunal member was entitled to refer to the more recent country information that had become available in the meantime.
In the hearing before her Honour, the appellant did not elaborate on any consequences of the Tribunal’s delay in making its decision. She simply asserted that the delay had resulted in jurisdictional error because the Tribunal had not conducted its task in a timely manner.
Her Honour was not satisfied that the Tribunal’s capacity to assess the appellant’s evidence had been impaired because, first, it had acknowledged the delay and had taken steps to mitigate its consequences, including convening the third hearing in 2018, only a month before it made its decision, listening to the audio recordings of the first and second hearings again to ensure that its findings were accurate and carefully considering all of the evidence before reaching its conclusions and, secondly, its adverse findings had not turned on the appellant’s demeanour or that of any witness called on her behalf.
The trial judge found that it was open to the Tribunal to finalise the review in a way that was procedurally fair by inviting the appellant to the third hearing so that she could provide updated information about her personal circumstances, and to comment on country information that had become available since the first and second hearings. Her Honour found that any adverse findings of the Tribunal had resulted from inconsistencies in the appellant’s evidence, that were not adequately explained, and the vague and unpersuasive nature of some of her evidence. She concluded that the delay had not impaired the Tribunal making those assessments in circumstances where it held the third hearing, relistened to the audio recordings and had regard to all the written material that the appellant provided. Her Honour concluded that the appellant had not established any jurisdictional error on the first ground below.
The appellant’s submissions
The appellant argued that the delay of some 20 months from the date of the first hearing, in July 2016, to the decision in March 2018 was egregious. She referred to NAIS 228 CLR 470 in which there had been a delay in the order of four and a half years and cases such as Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 that involved a delay of 21 months between the hearing and judgment, that the Full Court found to be “grossly inordinate” and a delay of 20 months that the Full Court criticised in Tassbet Ltd v Morrow (2015) 233 FCR 46.
The appellant argued that, at no stage in its reasons did the Tribunal expressly refer to the demeanour of the appellant or her other witnesses in giving evidence but that it was evident that the Tribunal had relied on their demeanour in coming to its conclusions. For example, she contended, it had stated that it was satisfied that the appellant and the other witnesses were able to understand and respond to its questions and had had a meaningful opportunity to put forward evidence and arguments. The appellant referred to findings that her evidence, of being under surveillance, was vague and unpersuasive, that she had not explained credibly other matters and that some of her claims were contrived and unconvincing, and her evidence was improbable, unpersuasive and the like.
The appellant submitted that demeanour based findings may be implied, as well as express, so that a decision-maker need not refer, in terms, to having considered demeanour as Gleeson CJ noted in NAIS 228 CLR at 475 [8]. The appellant called in aid what Kiefel CJ, Bell, Gageler and Keane JJ had said in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at 448–449 [13]–[16] in relation to the potential for an informational gap to arise if a decision-maker relied on listening to an audio recording of a hearing before another decision-maker without ever giving the person affected an opportunity to appear in person before him or her to give further evidence. There, the Immigration Assessment Authority had decided a review of a decision of the delegate by listening to an audio recording of the applicant’s evidence and assessed new material going to the credibility of the referred applicant’s account without giving that applicant an in person hearing.
The appellant argued that such an informational gap was evident here when the Tribunal said that, before making its decision, it had listened again to the recordings of the first and second hearings. She contended that it must have taken demeanour into account when it made its adverse findings in 2018. She submitted that this meant that an informational gap had occurred when the Tribunal listened to these recordings well after the evidence had been given in 2016 and without the advantages of making its assessment of credibility contemporaneously with seeing and hearing the appellant and her sister giving the evidence. The appellant argued that the Tribunal’s delay had impaired its ability to assess the evidence of them at the first and second hearings, in line with what Callinan and Heydon JJ had said in NAIS 228 CLR at 522 [161]:
Sometimes the pressures of work on administrators and courts can be very great. The sufficiency of the resources and the number of people to do the work depend upon the funds which governments are prepared to expend on them. Not all people have the same capacity for efficient and expeditious work, including decisiveness itself, as others. Care accordingly needs to be taken before condemning what may, in some cases, at first sight appear to be cases of inordinate delay. Nonetheless, nothing, apart from bias or unfairness, is more likely to bring public administration and the law into disrepute than inexplicable prolonged delay in the disposition of matters. Delay of that kind immediately and inevitably raises questions. How earnest was the consideration given to the matter? Did the maker of the decision truly apply his or her mind to it? Did he or she find it too hard? Was the decision-maker distracted? Was the decision in the end made out of desperation, or a realisation that it had at last to be given, regardless of its correctness or otherwise? All of these questions can be asked but not satisfactorily answered in this case. That they cannot does not mean that the decision of the Tribunal can on that account alone be set aside. But it does mean that a reviewing court should scrutinise the decision, if not with a disposition against it, at the very least, with scepticism, especially if, as the decision in this case does, it depends in any way at all upon the assessment of competing claims of fact and credit, and impressions based on demeanour.
(emphasis added)
The appellant argued that if the Tribunal did not rely, in any way, upon her demeanour it needed to say so and explain in its reasons why it came to its decision without doing so. She asserted the binary proposition that the Tribunal either made a decision based on, or ignoring, her demeanour, in either case, committing jurisdictional error, particularly since she was not at fault for the delay in its decision making. She contended that the quality of the decision was impaired because the Tribunal repeatedly referred to its having considered the totality of the evidence, so that it should be inferred that it had relied on her demeanour. She submitted that the trial judge had failed to recognise the impact of the delay and the use of demeanour in the Tribunal’s ultimate findings on credibility.
Consideration
In NAIS 228 CLR at 473–474 [5], Gleeson CJ said:
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….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 (See Blencoe v British Columbia (Human Rights Commission) [2000] 2 SCR 307 at 367 [101])… 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 (See Monie v The Commonwealth (2005) 63 NSWLR 729, and the authorities there collected). 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.
(emphasis added).
There, the delay between the Tribunal’s first hearing of NAIS’s evidence and its decision was over four and half years. The Chief Justice acknowledged that some aspects of the evidence of NAIS must have turned on, or been influenced by, the Tribunal’s observation of his demeanour because, as he observed (at 475 [8]), “Evidence that was not inherently improbable, or contradicted by objective facts, was rejected as ‘implausible’”. Gleeson CJ also said (at 475–476 [9]–[10]):
A procedure that depends significantly upon the Tribunal’s assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal’s capacity to make such an assessment is impaired.
… The appellants in this case do not have to demonstrate that the Tribunal’s assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal’s capacity to make a proper assessment of their sincerity and reliability. The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal’s capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.
(emphasis added)
Kirby J agreed with Gleeson CJ and gave further reasons for setting aside the delayed decision (see at 492 [74], 496–497 [85]–[88] and 503–504 [106]–[108]). Callinan and Heydon JJ came to a similar conclusion (at 552–526 [161]–[174]). In ABT17 269 CLR at 448 [14]–[15] , Kiefel CJ, Bell, Gageler and Keane JJ discussed the potential for “an informational gap” to occur where a decision-maker listened to an audio recording of a witness’ evidence given earlier to another person (such as when the Tribunal or Immigration Assessment Authority is reviewing a delegate’s decision). They said at (448–449 [14]–[16]):
An informational gap of that nature has potential to impact on the Authority’s assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority’s assessment of the referred applicant’s overall credibility. “Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker.” (Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 338 [40].) That has “long been recognised” (See Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 338 [40], and the cases there cited) and continues to be appreciated despite awareness on the part of sophisticated decision-makers that “an ounce of intrinsic merit or demerit” measured by reference to objectively established facts and the apparent logic of events “is worth pounds of demeanour” (Fox v Percy (2003) 214 CLR 118 at 129 [30]-[31], quoting Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140 at 152.).
… At an interview the Authority could seek answers in relation to those aspects of the appellant’s evidence that troubled the Authority by raising questions which had not previously been raised with the appellant. The Authority could thus develop an informed impression of the credibility of the appellant based on his responses to such questions and an observation of his demeanour. The appellant’s responses and the demeanour of the appellant inextricably associated with them would be new information relevant to his personal circumstances.
There can be no doubt that the powers of the Authority to get and consider new information enable the Authority to bridge such an informational gap by inviting the referred applicant to a further interview to be conducted in person or by video link in order to assess and consider his or her demeanour for itself. The Authority’s own visual impression of the referred applicant’s appearance during such an interview would necessarily constitute new information within the power of the Authority to get because it would communicate knowledge of an evidentiary nature which would be open to be considered by the Authority to have the potential to bear on the Authority’s assessment of the referred applicant’s credibility (Section 473DC(1)(b) of the Migration Act.) and which was not before the Minister when the delegate made the referred decision (Section 473DC(1)(a) of the Migration Act.).
(emphasis added)
This case, of course, is quite different from that in Expectation 140 FCR at 33 [73] and 35 [81], where Carr, Emmett and Gyles JJ said:
[73] Of course, where the trial judge, notwithstanding significant delay, demonstrates by his or her reasons that full consideration has been given to all of the evidence, the parties and the public may be satisfied that the delay has not affected the decision. More specifically, if the reasons demonstrate that the delay has not weakened the trial judge’s advantage, confidence will be maintained in the decision. For example, it would be open to a trial judge to explain in the course of giving reasons that contemporaneous notes were made of impressions formed as evidence was given by witnesses of importance (see R v Maxwell (unreported, Court of Criminal Appeal, NSW, Spigelman CJ, Sperling and Hidden JJ, No 60282 of 1998, 23 December 1998)).
…
[81] In the absence of some special circumstances where his Honour rejected the evidence of the witnesses on grounds of lack of credit, one would expect him to explain how, despite the delay, he was well ¬able to recollect the oral testimony. Also, as a general rule, if part of that rejection depended upon contemporary documents or the lack of such contemporary documents, his Honour should, in his reasons, have gone to those documents and, (in the latter case), stated with the requisite satisfaction that there were no such contemporaneous documents.
(emphasis added)
Here, the Tribunal gave comprehensive reasons for its credibility based findings, such as in relation to evidence that the witnesses, including the appellant and her sister, gave at the third hearing. Much of its reasoning depended on the very recent country information, such as the 2017 DFAT report and the report of the academic to which it referred, which it explored with the appellant and her witnesses at the third hearing. It found that, based on that recent country information, the appellant was not at risk of serious harm. Those findings were open to it, because, at the third hearing, shortly before it made its decision, it gave the appellant, and her witnesses, the opportunity to deal expressly with this new country information as it had foreshadowed in the invitation letters to that hearing. That new country information related to the Tribunal’s statutory task of deciding whether, at the time it gave its decision, there was a real risk that the appellant might suffer significant harm were she to return to China, having regard to her claims to be a practitioner of Yiguandao.
In my opinion, the reasons of the Tribunal adequately explained why it had arrived at its credibility based findings. True it is, as the appellant submitted, the Tribunal did not give any elaborate explanation for its delay. But it invited her to the third hearing, took evidence from her sister and two other witnesses, and gave her (and the others) an opportunity to deal with what, in substance, was determinative, being the recent country information, on which it found against her.
Often, tribunals or other decision-makers hearing matters remitted on mandamus from earlier decisions, that a court sets aside, will listen to audio recordings of evidence given by applicants to a prior decision-maker as well as having one or more in person hearings with that applicant. In such matters, the decision-maker will take into account the evidence previously given in audio recordings, albeit that those recordings do not give it the opportunity of its own visual assessment of the demeanour of the applicant or witness when giving the recorded evidence.
Indeed, the informational gap to which Kiefel CJ, Bell, Gageler and Keane JJ referred in ABT17 269 CLR 439 is the absence of the advantage of seeing and hearing the witness give the recorded evidence that a decision-maker experiences who merely listens to an audio recording. A decision-maker in such a position, and a Court on judicial review, must be alert to the fact that such a gap can impair or deprive the decision-maker of the opportunity of forming his or her own assessment of credibility.
Here, the Tribunal addressed the informational gap through the use of the evidence given at the third hearing in a matter consistent with what Kiefel CJ, Bell, Gageler and Keane JJ said in ABT17 269 CLR 439 at [16]. The Tribunal already had seen and heard the appellant and her sister in the first and second hearings in 2016. That was before it listened to the audio recordings of those hearings and invited each of them and the two new witnesses to deal with matters raised at the third hearing in 2018. It used the third hearing to address, among others, a critical issue that had arisen because of the new country information which it found to be substantively decisive in its review.
While the Tribunal’s delay was unfortunate and largely unexplained, I am not satisfied that any informational gap between the Tribunal’s first and second hearings in 2016 and its listening to the audio recordings of those two hearings prior to giving its decision in 2018 was of such a nature as to render the proceeding unfair, impair or diminish its capacity for competent evaluation (NAIS 228 CLR at 476 [10]) or to cause it to fall into jurisdictional error in light of the oral evidence at its third hearing and the recent country evidence, or otherwise.
Conclusion
In all the circumstances, I am not satisfied that there is any jurisdictional error in the Tribunal’s procedure. The appeal must be dismissed with costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 9 September 2022
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