CQV16 v Minister for Immigration
[2018] FCCA 3735
•14 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQV16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3735 |
| Catchwords: MIGRATION – Application to extend time for applying for judicial review of decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether adequate explanation given for delay in applying for judicial review – whether there is any merit in grounds of substantive application – application for extension of time granted. MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether there was operative delay in the Tribunal’s making a decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 416, 417, 418, 422B, 424, 476, 477 |
| Cases cited: Antoun v The Crown [2006] HCA 2 | ||
| Applicant: | CQV16 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2535 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 24 November 2017 |
| Date of Last Submission: | 12 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr P King |
| Solicitors for the Applicant: | Brett Slater Solicitors |
| Counsel for the Respondent: | Ms R Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the 35-day period provided by s.477(1) of the Act for making an application to the Federal Circuit Court of Australia for a remedy to be granted in the exercise of the Federal Circuit Court’s jurisdiction under s.476 of the Act in relation to the decision of the second respondent made on 30 June 2016 is extended to 16 September 2016.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2535 of 2016
| CQV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period provided for by s.477(1) of the Act to apply for a remedy under s.476 of the Act. The application for a remedy, if an order under s.477(2) is made, relates to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa). The applicant requires an order under s.477(2) of the Act because the Tribunal made its decision on 30 June 2016 but the applicant applied to this Court on 16 September 2016.
At my suggestion counsel for the parties agreed that I should hear submissions both on whether an order under s.477(2) of the Act should be made and on the substantive merits of the applicant’s claims. I indicated to counsel that, in my reasons for judgment, I will consider separately the application for an order under s.477(2) and, if I were to be satisfied that such order should be made, the substantive merits of the applicant’s claims.
These reasons, therefore, are arranged as follows. First, I set out the principles relevant to the exercise of the power conferred by s.477(2) of the Act. Second, I set out some background to the applicant’s application for protection, the claims for protection the applicant made, and the Tribunal’s reasons for affirming the delegate’s decision. Third, I set out the evidence relevant to the applicant’s delay in making his application to this Court, and consider whether the explanation the applicant gives based on that evidence is adequate. Fourth, I consider whether the grounds on which the applicant intends to rely if I were to make an order under s.477(2) of the Act are reasonably arguable. The grounds are contained in the amended application filed on 10 April 2017. Fifth, I consider whether, in light of my conclusions about whether the applicant has given an adequate explanation for his delay, and the apparent merits of the grounds stated in the amended application, I should make an order under s.477(2) of the Act. As will appear, I am satisfied that an order should be made. The final part of my judgment, therefore, is devoted to considering the substantive merits of the grounds of application set out in the amended application.
Principles governing exercise of power under s.477(2)
Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]
[1] [2013] FCA 1284, [47]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
His Honour further said these factors “cannot be said to exhaust all potentially relevant factors in every case”, because they “are simply sensible guidelines developed by the courts which have utility in most cases”.[2]
[2] [2013] FCA 1284, [48]
The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[3] Further:[4]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[3] [2015] FCA 1391 at [63] (cases cited omitted)
[4] [2015] FCA 1391 at [62] (cases cited omitted)
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[5] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[6]
[5] [2015] FCA 1391 at [63] (cases cited omitted)
[6] [2015] FCA 1391 at [62] (cases cited omitted)
Background, claims for protection, and Tribunal’s reasons
The applicant is a citizen of Ukraine. He first arrived in Australia on 16 May 2000 holding a tourist visa. The visa expired on 16 August 2000. In the meantime, on 13 June 2000 the applicant applied for a Protection visa. A delegate of the Minister refused that application and, on 3 April 2003, the Refugee Review Tribunal (First RRT) affirmed the delegate’s decision. After this Court declared the RRT’s decision to be void, on 28 April 2005 a differently constituted Refugee Review Tribunal (Second RRT) affirmed the delegate’s decision. That decision was also set aside by this Court and, on 1 March 2007, another differently constituted Refugee Review Tribunal (Third RRT) affirmed the delegate’s decision. An application for judicial review of Third RRT’s decision was dismissed by this Court on 27 February 2008. The applicant was then removed from Australia after the Ukrainian embassy in Australia reissued a passport to him.
The applicant returned to Australia on 8 February 2013 on the basis of a fraudulently altered Lithuanian passport. He again applied for a Protection visa. A delegate of the Minister refused that application on 25 February 2014.
Course of proceeding before the Tribunal
The applicant applied to the Tribunal for review of that decision on 18 March 2014.[7].By letter dated 1 September 2014 the Tribunal invited the applicant to appear before it on 9 October 2014 to give evidence and provide arguments.[8] The applicant appeared before the Tribunal on 9 October 2014 (first hearing).[9] By letter dated 26 May 2016 the Tribunal apologised to the applicant for the delay in making a decision, and invited the applicant to appear before the Tribunal on 21 June 2006 to give evidence “in relation to any new issues that may have arisen since the last hearing”.[10] A further hearing took place on 21 June 2016 (second hearing), and on 30 June 2016 the Tribunal affirmed the delegate’s decision.
[7] CB229
[8] CB246-247
[9] CB253. There is a stamp “Received at hearing . . . Date 9/10/14”.
[10] CB256-257
Claims for protection
The applicant stated his claims for protection in a document titled “Statement” dated 7 July 2013 (Statement) that formed part of the application he lodged with the Minister.[11] The statement is long, but its essential elements consist of a number of events or series of events that can be shortly stated.
a)The first event consists of what occurred to the applicant immediately after he returned to Ukraine in 2009. The applicant stayed with his mother at her apartment at Ternopil. The applicant’s old friends and acquaintances initially welcomed his return, promising to help him search for work or even give the applicant a job in their companies. The “following day they suddenly broke any relationship” with the applicant, and refused to communicate with him. The applicant realised that “someone prohibited those people” from helping the applicant, and that could “be done only by the Security Service of Ukraine” (SSU).[12]
b)The second event relates to the applicant’s attempt to start a business in Ukraine and Poland. He claims he was unlawfully denied the registration of “an Entrepreneur Certificate” because he was required to hold a “propyska”, a residence permit, for Ternopil. The Business Registration Department at the city rejected the applicant’s claim that Ukrainian law did not require the applicant to hold such a permit. The applicant believes and understands that “workers of the Business Registration Department would only break the law of Ukraine following the direction of the SSU”.[13]
c)The third series of events relates to SSU creating a situation in which the applicant could be accused of crime. That situation arose out of a dispute between the applicant’s sister (Ms S) and her ex-husband, Mr K. Ms S and Mr K had a child (Child). Ms S had gone to Italy to work leaving the Child with her mother. Mr K took the Child from Ms S’s mother and began to blackmail Ms S. Mr K phoned the applicant and threatened to kill the applicant’s mother and Ms S, boasting he had friends in the SSU. In October 2009, after Mr K gave Ms S permission to take the Child abroad, Ms S took the Child to Italy. Mr K told the applicant that Ms S had “forged the documents to take the child away”. Mr K afterwards telephoned the applicant almost daily threatening to kill Ms S and the applicant’s mother.[14] The applicant sought police protection, but the police refused. The applicant soon realised that his telephone conversations were being monitored.[15] Mr K “continued to provoke” the applicant.[16] The applicant again turned to the police for protection, but “again . . . received a formal rejection”. Mr K’s calls to the applicant increased to between 20 and 30 times a day. After the applicant stopped answering Mr K’s calls, Mr K “with his criminal friends, started coming to” the applicant’s mother’s residence.
d)The fourth series of events occurred in August 2011 immediately after the applicant had again returned to Ukraine. The applicant had earlier left Ukraine for Europe because the Ukrainian authorities “unlawfully stripped” the applicant of an opportunity legally to earn money, and because his “life was under threat from criminal elements, which were manipulated by the SSU”.[17] Mr K began calling the applicant with threats. The applicant invited Mr K to meet with him. The applicant told Mr K that “his friends at the SSU just used” Mr K to put pressure on the applicant. The applicant put to Mr K that the SSU said they would help Mr K by detaining Ms S when she was crossing the border using a forged permission, but they did not do that to induce Mr K to put pressure on the applicant so that the applicant could force Ms S to return to Ukraine, this “apparently” being the only chance Mr K had to get back the Child. The applicant and Mr K “concluded that the whole story from the beginning was conceived by the SSU in order for [Mr K] to have a reason to start a conflict with” the applicant.[18] Mr K ceased calling and threatening the applicant, but the applicant’s stay in Ukraine continued to remain dangerous. The applicant’s “telephones continued to be tapped”.[19]
[11] CB1, at CB171-192
[12] CB172, [3]
[13] CB172, [4]
[14] CB173, [5]
[15] CB173, [6]
[16] CB174, [8]
[17] CB175, [10]
[18] CB179, [22]
[19] CB179-180, [23]
In the Statement the applicant referred to the case of a Ukrainian citizen, Denys Oleynikov, who had been granted asylum by Croatia. The applicant said that “this case has some parallels with” the applicant’s case.[20] The applicant said he intentionally omitted matters of his political activities before his first visit to Australia because “they were hard to prove”, and that he will focus his attention to his work in Australia during 2004 to 2009. The applicant referred to the following matters:
a)The publication of an article in 2004 in a Ukraine weekly in which the applicant outlined his rejection of the then presidential candidate.[21]
b)The applicant gave a speech during the celebrations of independence of Ukraine in Sydney in which he “subjected the Ukrainian government to strong criticism”.[22]
c)In 2010 there was published a historical research paper the applicant wrote in 2008.[23]
[20] CB188, [50]
[21] CB188, [50]
[22] CB189, [51]
[23] CB189, [53]
There is other detail in the Statement that is relevant to some of the Tribunal’s reasons. Most of them relate to the applicant’s travels in Europe after he had returned to Ukraine from Australia in 2009. The applicant went to Poland in January 2010, where he applied to the Australian embassy for a humanitarian visa.[24] The applicant then travelled to Sweden where he stayed until February 2011 when, after having surrendered himself to the Swedish authorities, the applicant was sent to Poland for his claim for asylum to be assessed.[25] The applicant stayed in Poland until August 2011 when he returned to Ukraine. In around April 2012 the applicant returned to Sweden where he stayed until February 2013.[26] After he obtained a false Lithuanian passport the applicant travelled to Italy and, from Italy, the applicant travelled to Australia.[27] In that context the applicant claims that in the second half of December 2011 the place where he worked was robbed. Although nothing of value was stolen, the applicant claims “everything allegedly pointed at” the applicant and that he “personally” viewed this “as an ordinary KGB provocation” where the “organisers of the break in thought that the police would arrive after the burglary and find there illegal workers (i.e. me), who would be the main suspect in the burglary”, and that the applicant “would be arrested, and after a quick trial would be sent to Ukraine”.[28] The applicant also claimed he realised that “the SSU keeps me under control even in Stockholm”, and that there were “several other provocation towards” the applicant which he considered “to be SSU provocations”.[29]
[24] CB175, [11], [12]
[25] CB175-177, [12]-[18]
[26] CB184-185, [37]-[41]
[27] CB185-186, [41]-[42]
[28] CB177, [17]
[29] CB177, [17]
Tribunal’s reasons
The Tribunal concluded the applicant is not a witness of truth, and that the applicant exaggerated and fabricated accounts of events, as well as claimed fears on which he based his claims for protection.[30] The Tribunal relied on a number of matters, including the following.
[30] CB301, [142]
a)The Ukrainian authorities took no action against the applicant when he returned to Ukraine from Australia.[31] The Tribunal considered that the applicant’s own evidence, and country information, “indicates that the SSU could have detained and interrogated [the applicant] at the airport, and they did not need to go to all of the claimed, cross-border efforts in order to seek revenge against the applicant and harm him”.
b)At the Second RRT hearing the applicant claimed the SSU controls the criminal syndicates and they will organise for him to be robbed or attacked because everyone will think he has money because he has been living in Australia for at least three years. The Tribunal found, however, that the SSU could have used that method after the applicant had returned to Ukraine after living in Australia for nine years, “instead of going to such elaborate, unsuccessful, seemingly random plans, as claimed by the applicant”.[32]
c)Had the Ukrainian authorities been concerned about the applicant’s political activities in Australia, they could have interrogated him about such matters when he returned from Australia; but the applicant did not claim he had been questioned or interrogated by the Ukrainian authorities.[33]
d)The applicant’s evidence of the threats he received from his brother-in-law, Mr K, was not credible.[34] In the Statement the applicant referred to having recorded conversations with Mr K, but the applicant did not provide the transcript of such conversations to the delegate or the Tribunal;[35] and if, as the applicant claimed, Mr K threatened the applicant every day over a period of four months, it was difficult to understand why the applicant would remain living in his mother’s house.[36]
e)The applicant claimed during the second hearing that in 2011 his daughter was acting as an informant for the SSU, but the applicant did not make such claim before the second hearing.[37]
f)The Tribunal found it difficult to accept that the applicant would have approached the Ukrainian police after he returned to Ukraine, given his claimed fears of the authorities in Ukraine.[38]
g)The Tribunal found the applicant’s evidence about the robbery to be highly unlikely;[39] and that the applicant’s return to Sweden indicates he did not fear persecution or harm in Sweden, and he did not leave Sweden because he feared the secret services but because he chose Australia as his preferred destination.[40]
h)Although while in Poland the applicant had an ongoing asylum claim, he returned to Ukraine in August 2011, which appears to undermine his claim he had a genuine fear of harm in Ukraine.[41]
i)There was other evidence that indicated the applicant did not suffer difficulties in 1999 and 2000 before he first came to Australia. Here the Tribunal referred to the claim the applicant made in his first protection visa application that he decided to leave Ukraine after he claimed to have received a warning that he was wanted by the SSU. The Tribunal found that the applicant left Ukraine five months after he received the warning.[42]
j)The applicant gave inconsistent evidence about his activities in Australia. In the Statement the applicant said he was an activist over the whole period from 1999 to 2000 yet, according to the evidence the applicant gave to the delegate, the applicant’s political activities commenced in Australia in 2004. The Tribunal found the applicant undertook political activities in Australia to strengthen his claims to be a refugee “and to be a political threat to the Ukraine upon his return”.[43]
[31] CB286, [67]
[32] CB288, [78]
[33] CB288-289, [79]
[34] CB289, [83]
[35] CB289, [84]
[36] CB290, [85]
[37] CB290, [87]
[38] CB390, [89]
[39] CB291, [95]
[40] CB291, [98]
[41] CB292, [99]
[42] CB294-295, [113]-[118]
[43] CB298, [123]
Given the adverse credibility findings it made, the Tribunal concluded as follows:
a)The applicant was educated as a mechanical engineer, he worked in various positions in the Ukraine, and his last place of residence in Ukraine was Ternopil where his mother resided in the family home.[44]
b)The Tribunal did not accept the applicant engaged in any political activities or involvement when he was the Ukraine before he came to Australia in 2000, or that he had been persecuted, targeted, or harmed by the SSU or anyone else before he first came to Australia, or that he first left Ukraine to come to Australia for fear of persecution; the applicant fabricated these claims to support his first application for a protection visa.[45]
c)The applicant commenced political activities in Australia in 2004 after his claim for protection was refused by the first RRT.[46] The applicant published articles and speeches critical of all leaders and the government of the Ukraine, but the Tribunal did not accept these represented the applicant’s genuine opinion, but these were expressed to support the applicant’ claims to remain in Australia.
d)The Tribunal did not accept the applicant was a person of international renown, or that he was of interest within the Ukraine community, inside or outside Ukraine.[47]
e)The applicant had no difficulties after he returned to Ukraine from Australia in 2009.[48] The Tribunal did not accept the applicant “garnered any adverse interest from the SSU or Ukrainian authorities during his time in Australia”.[49]
f)The applicant returned to Ukraine on three occasions after he was removed from Australia. The Tribunal did not accept the SSU took any or all of the “elaborately claimed steps, either alone or in collusion with others, to harm the applicant indirectly or directly after his return to Ukraine”.[50] The Tribunal found the applicant fabricated these claims.[51] The applicant voluntarily returned to Ukraine on two further occasions after he was involuntarily removed there from Australia which indicates the applicant believes he faces no harm in Ukraine for his past Australian activities because he was aware that they would be of no consequence for him.[52]
g)The Tribunal did not accept the applicant has any genuine reasons for writing or publishing any political statements.[53]
[44] CB301, [143]
[45] CB301, [144]
[46] CB302, [146]
[47] CB302, [149]
[48] CB302, [151]
[49] CB302, [151]
[50] CB303, [155]
[51] CB303, [155]
[52] CB304, [161]
[53] CB305, [164]
The Tribunal considered but did not accept other claims the applicant made[54] but, given the grounds on which the applicant proposes to rely before me, it will not be necessary to say anything more about those claims.
[54] CB306-308, [177]-[187]
For these reasons the Tribunal was not satisfied the applicant satisfied the criteria provided for by s.36(2)(a) of the Act or s.36(2)(aa) of the Act.[55]
[55] Given the applicant had previously applied for, and was refused a Protection visa based on his being a refugee, as provided for by s.36(2)(a), the Tribunal was required to consider only whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act. The Tribunal, however, made no jurisdictional error by also considering whether the applicant satisfied s.36(2)(a) of the Act.
Explanation for delay
The applicant’s evidence explaining his delay is contained in two affidavits, one made on 15 September 2016, and the other on 5 December 2016. The applicant also gave evidence under cross-examination. In the first of the affidavits, the applicant deposes to his having been informed by his Australian friends that he could “appeal the Tribunal’s decision by writing a letter to the” Minister. The applicant did so by letter dated 25 July 2016 requesting that the Minister use his powers under s.417 of the Act.[56] That letter was supported by a letter dated 25 July 2016 from a clinical psychologist which, among other things, recorded the psychologist’s opinion that the applicant “continues to suffer from a mixture of chronic depression and anxiety, which has recently deteriorated in reaction to the fact that his application for granting protection visa was rejected”.[57] The applicant could not think properly. On 8 August 2016 the applicant received a letter dated 8 August 2016 from the Department of Immigration and Border Protection (Department) informing the applicant his request for Ministerial intervention would not be referred to the Minister. On 8 August 2016 the applicant decided to seek legal advice. He was unaware he “may be out of time to appeal the AAT’s decision”. The applicant initially did not accept the legal advice to file an application with this Court because he was advised that if he were successful his case would be remitted to the Tribunal. The applicant, however, requested copies of the audio recording of the hearing before the Tribunal. He received these on 24 August 2016 and provided them to his lawyers. Because of their poor quality, it took a week to prepare the transcript. On 6 September 2016 the applicant instructed his lawyers to commence this proceeding.
[56] Applicant’s affidavit 15.09.2016, annexure “C”
[57] Applicant’s affidavit 15.09.2016, annexure “B”
In his second affidavit the applicant says that, due to his depression, he was “unable to realise that [he] should have promptly lodged an appeal of the AAT’s decision”.[58] The applicant attached a report dated 17 October 2016 prepared by the clinical psychologist which states the applicant meets the criteria for the diagnosis of “adjustment disorder mixed with anxiety and depressed mood, chronic”. The psychologist then give the following opinion:
It is my professional opinion that [the applicant’s] current mental state adversely affects his judgment and decision making due to which he was unable to react on time, i.e. to submit his appeal to the Federal Court. He says that the decision of the Immigration Office to leave immediately Australia had so shocking effects on his mental functioning that he was unable to think rationally and make a reasonable decision for his future actions. As a consequence, he failed to appeal within the prescribed period.
[58] Applicant’s affidavit 05.12.2016, annexure “A”
The applicant also attached a second report from the psychologist, one dated 23 November 2016. It says that after following the treatment recommended by the psychologist, and the applicant’s taking a particular medication, the psychologist confirmed the applicant no longer manifests the symptoms of “Adjustment Disorder with Mixed Anxiety and depressed Mood, Chronic”.
There is also an affidavit of the applicant’s lawyer, Mr Shumsky,[59] who deposes that the applicant first spoke to him on 9 August 2016 about the Tribunal’s decision. On 10 August 2016 the applicant provided Mr Shumsky documents and Mr Shumsky advised the applicant that to obtain judicial review he needed “to urgently commence proceedings in the FCCA”. Mr Shumsky deposes the applicant “appeared to be very frightened and disoriented”, and said he did not want to commence proceedings in this Court; the applicant told Mr Shumsky he wanted to appeal to the High Court, and not go back to the Tribunal. Mr Shumsky met the applicant again on 12 August 2016 where the applicant agreed to take Mr Shumsky’s advice.
[59] M G Shumsky affidavit 15.12.2016
Under cross-examination, the applicant accepted that in 2003 he commenced proceedings against the Minister in relation to a decision of the RRT, and that he was represented by a solicitor and by counsel. The applicant also accepted that in 2005 he had again commenced proceedings against the Minister in relation to a decision of the RRT and, in that proceeding, the applicant was represented by a solicitor. The applicant accepted that in 2007 he commenced a proceeding against the Minister but said he was not represented by a solicitor. The applicant maintained that evidence even when he was shown a copy of the application filed with this Court on 5 April 2007 which, although signed by the applicant, gave a solicitors’ address as the address for the applicant.[60]
[60] Exhibit C
The applicant submits the evidence reveals he did not have the mental capacity “to contemplate the existence of statutory time limit to file an appeal with the Federal Circuit Court, and further, even if the applicant had knowledge of the existence of said time limit, the applicant would not have been able to contemplate the consequences of missing the statutory deadline”.[61] I do not accept that the evidence supports this submission. It is true there is an uncontradicted opinion to the effect that the applicant manifested the symptoms of “Adjustment Disorder with Mixed Anxiety and depressed Mood, Chronic”. The opinion, however, does not identify what it is about the condition that prevented the applicant from seeking legal advice in relation to the Tribunal’s decision, as he did on 8 August 2016 immediately after he was notified of the Department’s decision not to refer his letter dated 25 July 2016, and also given that the applicant had on at least two previous occasions sought legal advice in response to the earlier RRT decision. Further, on the psychologists’ evidence, the applicant continued to suffer from “Adjustment Disorder with Mixed Anxiety and depressed Mood, Chronic” until November 2016. Yet the applicant was able, while labouring under this condition, to decide to seek legal advice, understand the advice he was given, and give instructions to his lawyer. There is nothing in the evidence that suggests lacked capacity to do these things during the 35-day period after the Tribunal made its decision. Finally, the psychologist’s opinion does not explain how it is that the “Adjustment Disorder with Mixed Anxiety and depressed Mood, Chronic” with which the applicant was diagnosed prevented him from making a decision about applying to this Court for judicial review yet did not prevent him, apparently without any legal assistance, from deciding to write and be in a position to compose the letter dated 25 July 2016 seeking Ministerial intervention.
[61] Applicant’s Outline Submissions, [32]
The applicant also submits that he chose Ministerial intervention as the preferred method of “appealing” the Tribunal’s decision, given the previous history of his engagement with judicial review as a consequence of which “the applicant was disenfranchised with the appeal system and had little faith in it”. I do not accept that submission accurately reflects any evidence the applicant gave. His evidence is that he did not want the matter to be remitted to the Tribunal. In any event, even if it accurately reflects the applicant’s evidence, it is not an adequate reason for not commencing proceedings in this Court within the 35 day period. It shows the applicant knew he could apply to this Court to challenge the Tribunal’s decision, but he instead elected to seek Ministerial intervention under s.417 of the Act. As was stated by Jessup J in Vu v Minister for Immigration and Citizenship:[62]
I do not think that the applicant’s approach to the Minister under s 351 of the Act [being equivalent to s.417 of the Act] provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in a position whereby he might lodge an appeal well out of time appears to be a kind of “Plan B” to which resort was had once the approach under s 351 proved unsuccessful.
[62] [2008] FCAFC 59 at [29] (Gyles and Besanko JJ agreeing)
Apparent merits of proposed grounds
As I have already noted the grounds on which the applicant proposes to rely if I were to make an order under s.477(2) of the Act are set out in the amended application. There are eleven grounds:
The Decision Maker
1.erred in identifying the correct issues;
2.asked incorrect and irrelevant questions;
3.failed to provide appropriate time to respond to the questions;
4.ignored relevant material and/or in the alternative relied on irrelevant material;
5.adopted a wrong test from the provisions of Section 36 Migration Act 1958 and Migration Regulations 1994
6.erred in finding that documents from Ukraine in general and in particular are not to be relied upon;
7.had regard to irrelevant considerations namely the first decision of the Respondent in 2003 and the related events;
8.made a decision that was in breach of the principles of natural justice;
9.exercised a power of Tribunal in accordance with policy without having regard to the merits of a particular case namely that documents from Ukraine are generally not to be trusted;
10.erred in finding that there was no evidence or material before the Tribunal to justify the making of the Tribunal’s discretion; and
11.rejected and refused to have regard to the relevant evidence.
Considered alone, these grounds are not arguable because they lack particularity. It is necessary, therefore, to set out the submissions made in support of each ground. It will become apparent that in many cases there is no obvious connection between the written submissions and the grounds the submissions are said to support.
Proposed ground 1
In his written submissions the applicant seeks to make good this ground by referring to particular findings the Tribunal made.[63] The claim, as I understand it, is that these matters did not relate to the “correct issues” and, by that, I understand the applicant submits that by doing what it did the Tribunal either took into account an irrelevant matter or it otherwise misunderstood the correct legal principles it was required to apply.[64] I will identify each of the things applicant submits the Tribunal did.
[63] Applicant’s Outline Submissions, [3]
[64] Applicant’s Outline Submissions, [4]
The first thing is the Tribunal had an undue or any regard to “information obtained by the department with respect to the Applicant’s first Australian visit instead of addressing the actual application relating to the second visit”.[65] The information to which the applicant intends to refer is the information the Tribunal identifies in paragraphs 13, 47, and 118 of its reasons for decision.
a)In paragraph 13 of its reasons, the Tribunal refers to material from the first application for a protection visa on which the applicant said he wanted to rely in support of the application for review before the Tribunal. The Tribunal noted that it “has relied upon the material selected by the applicant from the previous proceedings and identified by the applicant in his statements/evidence as the material he seeks to rely upon in the current proceedings”. It is not arguable the Tribunal could not have had regard to this information or that by doing so it misdirected itself.
b)In paragraph 47 of its reasons the Tribunal referred to s.416 of the Act, and noted the Tribunal “can decide if it wants to accept what is in the previous decision of 1 March 2007”. This paragraph says nothing more than that the Tribunal could under s.416 of the Act have regard to and consider whether it will accept any decision of a previous Tribunal. There is no suggestion the Tribunal exercised the power conferred by s.416 of the Act to accept a decision of the first, second, or third RRT. It is not arguable, therefore, that by referring to its powers under s.416 the Tribunal misdirected itself in any way.
c)In paragraph 118 of its reasons the Tribunal set out its conclusions about the reason for which the applicant claimed he had first left Ukraine. It is not arguable the Tribunal could not have regard to this information or that it misdirected itself by having regard to it. That is particularly so because the reasons for which the applicant claimed he had first left the Ukraine included a claim that he worked for H, and in his form of application for a Protection visa that was before the Tribunal the applicant also claimed to have worked for H.
[65] Applicant’s Outline Submissions, [3.a.]
The second irrelevant thing it is submitted the Tribunal did was “adopting an ironic and impermissible approach to the application and in particular the ground of persecution by treating a person who claims to have made political protests in Ukraine the Applicant as having to show he was ‘different to millions of others’ when all that the law required was to demonstrate he probably fell within the parameters of the persecution test and its application”.[66] Counsel for the applicant refers to paragraphs 39 and 40 of the Tribunal’s reasons. It is not arguable the Tribunal adopted any such approach. Paragraphs 39 and 40 of its reasons set out the delegate’s statement of the applicant’s claims, and the delegate’s findings.[67]
[66] Applicant’s Outline Submissions, [3.b.]
[67] The delegate set out what he understood to be the applicant’s claims at CB220-221
In his submissions in reply the applicant identified three further instances where it is claimed the Tribunal adopted an “ironic approach to the evidence” of the applicant.[68]
a)The first is the Tribunal member stating: “You claim to be a person of international renown …” The applicant submits the applicant “never claimed that”.[69] It is beyond argument that it was reasonably open to the Tribunal to understand the applicant to have made that claim. In paragraph 52 of the Statement, after describing in the previous paragraph[70] that he had given a speech where he subjected the Ukrainian government to strong criticisms at an assembly attended by 500 people, which included the “First Secretary of the Embassy of Ukraine in Australia”, the applicant stated: “Thus, my ‘anti-government’ activity reached the international level”.[71]
b)The second instance is the Tribunal stating “you say that you are an internationally renowned critic of the Ukrainian system. So why didn’t you give it a go yourself?”[72] The words “give it a go” is a reference to the applicant’s not having attempted to do that which the applicant in preceding answers said the Ukrainian Minister for Economy did, namely, apply for asylum in the Czech Republic. The only reason given by the applicant for submitting that the Tribunal asked this question with an ironic attitude is that the Tribunal compared the applicant with a Ukraine Minister. That by itself does not give rise to an arguable case the Tribunal adopted an ironic or belittling tone.
c)The third instance is the Tribunal’s stating: “You strike me as a very resourceful man”. It is submitted this displays “incredulity”.[73] That is not arguable. The passage from which the Tribunal’s statement is taken identifies the matters on which the Tribunal relied for stating the applicant struck the Tribunal as a resourceful man. It was reasonably open to the Tribunal to form that view, and there is nothing to suggest it did not genuinely hold that view.
[68] Applicant’s Outline Submissions in Reply, [8.c].
[69] Applicant’s Outline Submissions in Reply, [8.c.i.]
[70] CB189, [51]
[71] CB189, [52]
[72] Applicant’s Outline Submissions in Reply, [8.c.ii.]
[73] Applicant’s Outline Submissions in Reply, [8.c.iii.]
The third thing it is submitted the Tribunal did was to adopt an inappropriate test of persecution. The basis of that submission is that the Tribunal found the authorities in Ukraine can do whatever they want, and “that test was sufficient to satisfy the obligations of protection of Australia”.[74] This does not arguably disclose any misunderstanding by the Tribunal of the correct test of persecution. It is true the Tribunal accepted country information that showed authorities could do whatever they want. The Tribunal found, however, that given that finding, the applicant’s claims that the SSU undertook to harm him indirectly by fomenting conflict between the applicant and his brother-in law to be not credible; and that is so because, given authorities could do what they want, those authorities could have harmed the applicant directly.
[74] Applicant’s Outline Submissions, [3.c.] relying on CB387, [71], and CB303, [153]
The fourth thing it is submitted the Tribunal did related to a report of a Professor Bowring.[75] The Tribunal referred to the report noting that it expressed the opinion that the applicant’s activities would certainly have come to the attention of the “the regime and its secret police”. The Tribunal gave the report no weight because it was written in 2006 and the applicant had returned to Ukraine on three occasions after that and had not been arrested or subjected to trumped-up charges or otherwise.[76] It is not arguable the Tribunal made any error, jurisdictional or otherwise, in giving Professor Bowing’s report no weight for the reasons it gave.
[75] Applicant’s Outline Submissions, [3.d.]
[76] CB300-301, [140] - [141]
The fifth thing the Tribunal impermissibly did relates to the information to which the Tribunal refers in paragraphs 13, 47, and 118 of its reasons. It is submitted the Tribunal obtained this information “contrary to the restrictions” in s.424 and s.424A “in accepting limited material from the first visa application and then not inviting further information but obtaining same and not giving it to the Applicant”.[77] This submission discloses no arguable case that any of the information to which it related became subject to s.424A of the Act. Nor is there any arguable case that any of the information to which this part of the applicant’s submissions relates came to the Tribunal other than by the applicant providing it to the Tribunal or by means of s.418 of the Act.
[77] Applicant’s Outline Submissions, [3.e.]
The sixth, and final thing, it is said the Tribunal impermissibly did is to make a finding the applicant fabricated his claims without giving the applicant an opportunity to “squarely counter” that finding.[78] There is no arguable case the Tribunal was required to give the applicant such notice. The applicant was on notice from the delegate’s decision that his credibility was an issue;[79] and the Tribunal was not obliged to expose its “mental processes or provisional views to comment before making the decision in question.”[80]
[78] Applicant’s Outline Submissions, [3.f.]
[79] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. The delegate concluded: “Based upon these considerations as a whole, I find that the applicant clearly demonstrated a desire to travel to and remain in Australia and his activities show how he has attempted to achieve this end. I find his claims of persecution in Ukraine as a whole are not credible.” – CB223
[80] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [24].
In his written submissions in reply, the applicant submits that the “Respondent’s case was not squarely put to [the applicant] by the RRT; or delayed to the end and never returned to or given an opportunity to contradict”.[81] The applicant relies on the following findings and matters.
a)The finding at paragraph 83 of the Tribunal’s reasons that the Tribunal “considered the applicant gave evidence which was not credible concerning threats received form his brother-in-law”.[82]
b)The finding at paragraph 112 of the Tribunal’s reasons that it “was concerned that the applicant was prepared to change his evidence and make up claims in response to matters raised by the Tribunal in relation to what would happen to him if he returns”.[83]
c)The findings at paragraphs 65 and 123 of the Tribunal’s reasons about the genuineness of the applicant’s political activities, it being submitted that “nothing [was] squarely put that he fabricated his political activities in Australia, or that he undertook political activities in Australia”.[84]
[81] Applicant’s Outline Submissions in Reply, [8.a.]
[82] Applicant’s Outline Submissions in Reply, [8.a.i.]. The submissions use “RS14(b)”. That is a reference to paragraph 14(b) of the Minister’s written submission which refers to paragraph 83 of the Tribunal’s reasons.
[83] Applicant’s Outline Submissions in Reply, [8.a.ii.]. The submissions use “RS14(b)”. That is a reference to paragraph 14(d) of the Minister’s written submission which refers to paragraph 112 of the Tribunal’s reasons.
[84] Applicant’s Outline Submissions in Reply, [8.a.iii.]
The applicant also relies on the submission that the applicant sought to answer what he understood were the Tribunal’s concerns, but the Tribunal disregarded those matters “preferring to plough on with its questions schedule, and dealing with his evidence by deferral of his responses to the conclusion of the hearing”; but the “deferral of the applicant’s real explanation” in that way ran the risk of “that explanation never being given as was the case or if given not taken seriously”.[85] The applicant relies on the passages from the transcript identified in his written submissions in reply. These have been extracted in the document I marked “MFI2”.
[85] Applicant’s Outline Submissions in Reply, [8.a.iv.]
Counsel for the Minister, in his written submissions in reply to the applicant’s submissions in reply, submitted the Tribunal was not required to “squarely put” to the applicant the matters which the applicant identifies; it was only required to raise the relevant issues.[86] The Minister also submitted that the applicant was given an opportunity at the end of each hearing to elaborate on any matter he wished.[87] That was met with further written submissions from the applicant repeating that none of the references identified by the Minister in his written submissions manifests the Tribunal putting to the applicant that the Tribunal found or may find that the evidence provided by the applicant about his brother-in-law was not credible,[88] or that the applicant was prepared to change his evidence and make up claims.[89]
[86] First Respondent’s Submissions in Reply to Applicant’s further submissions dated 24 November 2014 and Exhibit B, [2], referring to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
[87] First Respondent’s Submissions in Reply to Applicant’s further submissions dated 24 November 2014 and Exhibit B, [3]
[88] Applicant’s Response [by leave] to First respondent’s Supplementary Submissions dated 1 December 2017 [‘RSS’], [9]
[89] Applicant’s Response [by leave] to First respondent’s Supplementary Submissions dated 1 December 2017 [‘RSS’], [11]
There is no arguable case the Tribunal was required to put to the applicant the matters the applicant submits it was required to put to him. As I have already noted, the applicant was on notice from the delegate’s decision that his credibility was an issue;[90] and the Tribunal was not obliged to expose its “mental processes or provisional views to comment before making the decision in question.”[91]
[90] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. The delegate concluded: “Based upon these considerations as a whole, I find that the applicant clearly demonstrated a desire to travel to and remain in Australia and his activities show how he has attempted to achieve this end. I find his claims of persecution in Ukraine as a whole are not credible.” – CB223
[91] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [24].
Finally, it is not an arguably correct characterisation of the transcript on which the applicant relies that the Tribunal disregarded the applicant’s attempts to answer the Tribunal’s concerns, choosing instead to “plough on” with its questions. The examples on which the applicant relies manifest an attempt by the Tribunal to elicit responsive answers from the applicant to the questions the Tribunal was asking of him. Further, as the Minister submits, the applicant was in any event given an opportunity at the end of each hearing to elaborate on any matter he wished. Finally, the applicant has not attempted to identify with any precision the explanation which he submits he was prevented by the Tribunal from giving, whether the applicant failed to give the explanation at the time he was invited to elaborate on any matter he wished, and, if so, how his not having addressed that matter affected or could have affected the decision the Tribunal made.
The proposed ground 1, therefore, discloses no reasonably arguable case of jurisdictional error.
Proposed grounds 2 and 3
In his written submissions the applicant treats these two grounds together, noting that the “evidence and submissions in relation to this ground [that is, ground 2] is cognate with the material under Ground 3”.
The applicant’s written submissions make a number of general claims not all of which appear to be related to the grounds. The written submissions are divided into three sections. The first makes eight general and unparticularised assertions about the conduct of the Tribunal member, these being that the Tribunal member at times was “angry and irate”, “engaged in unnecessary interruptions”, “quickly adopted an impression as to past demeanour”, “was disbelieving or sceptical”, “was typing throughout the evidence – and disturbing answers”, “made transcripts difficult”, “lost 14 pages of the transcript as a result”, and “as a lay observer the evidence was of a person who had translated in other tribunals including courts that the possibility of a preconceived view had been formed”.[92] By themselves these unparticularised assertions disclose no reasonably arguable case that the matters asserted by them occurred.
[92] Applicant’s Outline Submissions, [5]
The second section of this part of the applicant’s written submissions (described in the written submissions as “Ground 3.1”) claims the Tribunal failed to provide the applicant time to respond to questions, and the Tribunal “repeatedly interrupted the applicant as he was attempting to answer the questions that had been asked”.[93] The written submissions give four examples.[94]
a)The first is at page 36 of the transcript of the first hearing[95] where the Tribunal said “the answer is yes or no”. That passage when considered in the immediate context in which it appears raises no arguable case that the Tribunal was repeatedly interrupting the applicant. In the context in which the Tribunal member asked this question, it was unclear whether the applicant was claiming he would be harmed in Ternopil by the war with Russia in eastern Ukraine. The applicant initially said “[n]ot as a result of the war but as [a] result of everybody who was in power, are people who were in power are still in power”. Then, in answer to the Tribunal’s question whether the applicant was not claiming the applicant would be harmed because of the war the applicant said that “[w]ar made them live in power. So yes, it would be as a result of war”. It was reasonably open to the Tribunal to consider that the applicant was claiming both that he would and he would not be harmed by the war. The Tribunal member’s statement “The answer is ‘yes’ or ‘no’” was directed to obtaining from the applicant whether he was or was not claiming he would be harmed because of the war.
b)The second example is at page 7 of the transcript of the second hearing,[96] where the Tribunal member said: “I just want you to answer yes or no”. In context, it is not arguable the Tribunal was repeatedly interrupting the applicant. The Tribunal made the statement to obtain clarity to an answer the applicant had already given. In particular, the Tribunal member wanted to know that when the applicant said “they won’t allow me to be employed”, he meant “Ukrainian security forces”.
c)The third example is at page 13 of the transcript of the second hearing,[97] where the Tribunal member said: “Why? Why? In one sentence, “why?” In context, it is not arguable the Tribunal was repeatedly interrupting the applicant. The Tribunal’s asked the question for the purpose of eliciting a clear answer on why the applicant was suggesting the security forces would be interested in the applicant when he returns to Ukraine.
d)The fourth example is at page 17 of the transcript of the second hearing,[98] where the Tribunal member said “Alright, what you consider, just in a nutshell, in one sentence, what is [sic] that you predicted”. Again, in context, it is not arguable the Tribunal was repeatedly interrupting the applicant. The Tribunal member said this in the context in which she was attempting to obtain a clear answer to a question.
[93] Applicant’s Outline Submissions, [6]
[94] Applicant’s Outline Submissions, [7]
[95] Being at page 38 of the affidavit of M Shumsky 12.05.2017
[96] Being at page 54 of the affidavit of M Shumsky 12.05.2017
[97] Being at page 60 of the affidavit of M Shumsky 12.05.2017
[98] Being at page 64 of the affidavit of M Shumsky 12.05.2017
In his submissions in reply, the applicant provides three further examples.[99]
a)The first is the Tribunal’s stating: “I consider my questions to be relevant”.[100] That is part of a longer passage. It does not constitute any interruption of the applicant.
b)The second instance is identified as “TR p13/ articles in ‘The Free Thought’”.[101] The transcript does not indicate any interruption in relation to the questions the Tribunal asked about an article printed in “Free Thought”. Perhaps the applicant refers to the applicant uttering “but” after which the Tribunal said “Thank you”. This arguably is an interruption. The applicant, however, has not identified what it is the Tribunal interrupted the applicant from saying and whether had it not interrupted the applicant what the applicant would have said could have affected the Tribunal’s decision. In any event, it is not arguable that the interruption formed part of any pattern of interruption by the Tribunal.
c)The third instance is identified as “TR p 16/re marshalling of documents”.[102] That appears to be a reference to the Tribunal’s asking questions about whether the applicant was the author of particular papers. Before the Tribunal asked the question, it asked the applicant to “Stop, please”. That was an attempt by the Tribunal to prevent the applicant from moving away from the questions the Tribunal wanted to ask the applicant. There is no arguable case it was not entitled to require the applicant to ask questions. To the extent the question can be construed as an interruption, it did not form part of any pattern of interruption by the Tribunal.
[99] Applicant’s Outline Submissions in Reply, [8.b].
[100] Applicant’s Outline Submissions in Reply, [8.b.i.]
[101] Applicant’s Outline Submissions in Reply, [8.b.ii.], being at page 13 of the affidavit of M Shumsky 12.05.2017
[102] Applicant’s Outline Submissions in Reply, [8.b.iii.], being at page 16 of the affidavit of M Shumsky 12.05.2017
Quite apart from these instances, even on a casual reading of the transcript of the hearings before the Tribunal it is beyond argument the Tribunal provided the applicant with an ample opportunity to say what he wanted to say. The matters stated in support of “Ground 3.1”, therefore, are not arguable.
The third section of the applicant’s written submissions in relation to grounds 2 and 3 (described in the written submissions as “Ground 3.2”) claims the Tribunal “failed to provide appropriate time for the applicant to respond to the assertion that the applicant’s article that was published in Ternopil in 2010 was clearly an attempt to continue to pursue future asylum claims”.[103] It is then claimed that “this was part of the Tribunal’s reasoning for affirming the decision under review”, but there was no written invitation to comment pursuant to s.424A of the Act. The claim appears to be that the Tribunal failed to comply with s.424A of the Act. The information of which, it is claimed, the Tribunal was required to give particulars is the Tribunal’s finding that the applicant wrote an article “in order to strengthen his asylum claims, and then published in 2010”.
[103] Applicant’s Outline Submissions, [10]
That is not arguable. The Tribunal’s finding that the applicant wrote an article “in order to strengthen his asylum claims, and then published in 2010” is not “information” for the purposes of s.424A of the Act; it is a determination. For the purposes of s.424A “information” “does not encompass the tribunal’s subjective appraisals, thought processes or determinations”.[104] Further, the requirement imposed by s.425 of the Act that the Tribunal invite the applicant to appear before it for the purpose of giving evidence and presenting arguments did not require the Tribunal to give notice to the applicant of the possibility it might find that the applicant wrote an article “in order to strengthen his asylum claims, and then published in 2010”. A “decision-maker would not be otherwise obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”[105]
[104] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, at [18], quoting from the judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at pages 476-477
[105] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [24] quoting from the judgment of Northrop, Miles and French JJ in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd at (1994) 49 FCR 576.
For these reasons, grounds 2 and 3, and the submissions made or purported to be made in support of them, have no merit.
Proposed ground 4
In his written submissions the applicant submits the Tribunal ignored the evidence the applicant provided about how he knew the security forces were monitoring his telephone calls, and “extrapolated an incorrect inference that the test was done in a manner where the applicant was attempting to provoke his brother-in law”.[106] The applicant claimed that during a telephone conversation with his sister the applicant called Mr K unpleasant names and “less than half an hour after these phone calls [Mr K] would phone” the applicant.[107] The applicant submitted that while “not specifically outlined in the decision, the Tribunal did advance questions on how the applicant knew his phone calls were being monitored” and that “it is arguable that the Tribunal was contemplating these points when making” its decision. The applicant then submits the Tribunal focused on why the applicant would attempt to provoke his brother-in-law in a conversation with his sister if he knew it would get back to his brother-in-law (Mr K), and by so doing missing the point of the evidence, namely that the comments the applicant made to his sister were to see if the security forces were monitoring his calls.[108]
[106] Applicant’s Outline Submissions, [17]
[107] CB174, [17]
[108] Applicant’s Outline Submissions, [17]-[19]
The contention, therefore, appears to be that the Tribunal misunderstood the relevance of the evidence the applicant attached to his claim that, in a telephone conversation with his sister, the applicant called Mr K offensive names. That is not arguable. The Tribunal understood the relevance the applicant attached to his calling Mr K names in telephone conversations with his sister. At the hearing the applicant said he told certain things about Mr K to his sister because the applicant “wanted to check him”. The Tribunal asked why the applicant was provoking a person whom in his Statement the applicant claimed threatened to kill the applicant; in particular, the Tribunal asked whether the applicant was doing that “just to prove a point”.[109] In any event, even if the Tribunal had misunderstood the relevance the applicant intended to attach to this part of his evidence, it is not arguable that the misunderstanding played any material role in the Tribunal’s concluding the applicant’s claims lacked credibility.
[109] M Shumsky affidavit, 12.05.2017. page 26
Proposed ground 4, therefore, discloses no reasonable case of jurisdictional error.
Proposed ground 5
This proposed ground appears to rely entirely on the matters submitted in support of proposed ground 1. Proposed ground 5, therefore, discloses no arguable case of jurisdictional error for the same reasons I have found proposed ground 1 discloses no reasonably arguable case of jurisdictional error.
Proposed grounds 6, 9, and 11
In his written submissions, the applicant says these grounds overlap, and one set of submissions is made for all three.[110] The proposed grounds relate to the Tribunal’s findings in relation to documents on which the applicant relied.
[110] Applicant’s Outline Submissions, [22]
In this part of the applicant’s written submissions, it is submitted there were “several interventions from the member to suggest that documents from the Ukraine in general and [in] the particular case are not to be relied upon, or not to be trusted and hence should be rejected as not being able to assist the Tribunal”. It is then submitted that this approach “was in error, the issues being firstly whether the material was relevant and secondly assuming relevance whether in the absence of evidence contradicting that evidence there is any reason to discount or reject it”. [111]
[111] Applicant’s Outline Submissions, [22]
The written submissions do not identify from the transcript of the hearings before the Tribunal where it is said the Tribunal member suggested that “documents from the Ukraine in general and [in] the particular case are not to be relied upon, or not to be trusted and hence should be rejected as not being able to assist the Tribunal”. The Tribunal did refer to country information about document fraud during the first hearing:[112]
. . . . The other information I want to put to you is that there is country information available, which suggests that documents can be fabricated from Ukraine. . . . . Sir, I may not accept the documents, which suggests that here has been a police report, that you cannot start a business or reside anywhere. . . . That depends on my considerations [sic] of credibility, which I have not made up my mind yet.
[112] Affidavit of M Shumsky 12.05.2017, pages 45-46 (T43.10-T43.1)
In its reasons for decision the Tribunal identifies documents the applicant submitted, these being a notification about the applicant’s “Person-Entrepreneur certificate”, a translation of an article from Article 6 of the Ukrainian law on the registration of places of residence for Ukrainian citizens, decision to commence a criminal case on behalf of the applicant claiming that Mr K is threatening him, the applicant’s mother and sister, three extracts from the criminal code, a second statement to the Ukrainian police, and a second refusal to commence a criminal proceeding.[113]
[113] CB299, [127]
The Tribunal then noted that in the second statement to the police it is claimed a conversation between the applicant and Mr K was recorded “on an MP3”, being a recording the applicant mentioned in his current application for a protection visa, and noting that the applicant did not produce to the Tribunal the recording or a transcript of the recording noting further, however, that even if such recording had been produced, the Tribunal would not have given any weight to such recording given the “Tribunal’s significant concerns about the applicant’s credibility”, and that “conversations can be manufactured”.[114] The Tribunal then made the following findings:[115]
As put to the applicant at hearing, there is country information indicating the documents from the Ukraine can be fabricated, and the Tribunal would have to consider this country information and the credibility concerns in relation to the documents he has provided. The Tribunal noted that it may not accept as genuine the claimed reports about his brother-in law, the police, and the inability to commence a business or have a residence. In response, the applicant said that everything he said and claimed is the truth.
[114] CB299, [128]
[115] CB299, [129]
It is not arguable that the Tribunal indicated to the applicant during any of the hearings before it “documents from the Ukraine in general and [in] the particular case are not to be relied upon, or not to be trusted and hence should be rejected as not being able to assist the Tribunal”; and it is not arguable that this is the ground on which the Tribunal decided to give no weight to the documents on which the applicant relied. The reason the Tribunal gave no weight to the documents is “the Tribunal’s significant concerns about the applicant’s credibility”.[116] It is not arguable that the Tribunal needed to be satisfied there was some material that contradicted the documents before the Tribunal could discount the documents. And it is not arguable the Tribunal made any error in deciding to give the documents for the reasons it did. As the Full Federal Court said in Minister for Immigration and Citizenship v SZNSP:[117]
[I]t was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.
[116] CB299, [128]
[117] [2010] FCAFC 50, [33] (North and Lander JJ; Katzmann J agreeing at [42])
There is no merit in grounds 6, 9, and 11.
Proposed ground 7
The applicant submits the Tribunal misconstrued the expression “that information” that appears in “section 416(d) as extending beyond the earlier decision, and to authorise a complete review of the earlier matter”.[118] This submission appears to claim the Tribunal purported to review the earlier application for a Protection visa. That is not arguable. The Tribunal’s reasons make it plain it considered the applicant’s claims for protection as made before it, and had limited regard to what occurred in the applicant’s previous applications for a protection a Protection visa.
[118] Applicant’s Outline Submissions, [23]
Proposed ground 7 also has not merit.
Proposed ground 8
The applicant submits the Tribunal member failed to provide the applicant with an opportunity to be heard by cutting him off and restricting his answers “similar to what I set out in ground 3.1”.[119] The applicant gives no further information in support of this contention other than to set out a passage from the judgment of Callinnan J in Antoun v The Crown.[120] I have already held there is no merit in the contention that the Tribunal member failed to provide the applicant with an opportunity to be heard by cutting him off and restricting his answers.
[119] Applicant’s Outline Submissions, [24]
[120] [2006] HCA 2
The applicant further submits that the “unusual delay” between the first and second hearings meant “there was not a fair hearing”. It is submitted that the “excessive delay amounted to ‘self-disablement’ by the Tribunal effectively equivalent to the self-disablement caused by bias”.[121] It is submitted that the Tribunal’s reliance on the time that had passed since 2010 when the applicant had last published an article and, therefore, the time that had passed since the applicant was politically active, “would not have been as significant had they reached a decision after the first hearing” and this “prejudiced [the applicant’s] chance of a fair hearing”.[122] The applicant also relies on the following passage from the judgment of Gleeson CJ in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs:[123]
The fact that the impairment resulted from the default of the Tribunal is important. Many events, outside the control and influence of the Tribunal, might occur to make it more difficult to evaluate the claims of an applicant. That does not make the procedure unfair. On the other hand, when the Tribunal, exercising the control over its own procedures given to it by the Act, without explanation or justification, and without any fault of an applicant for review, draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the Tribunal's reasons to displace that likelihood, then a case of procedural unfairness arises.
[121] Applicant’s Outline Submissions, [25]
[122] Applicant’s Outline Submissions, [26]
[123] [2005] HCA 77, [11]
In his written submissions the Minister submitted NAIS is distinguishable because in that case the Tribunal based its adverse credibility findings on the appellant’s demeanour in a decision made some four and a half years after the first hearing;[124] but that is not the case in the application that is before me. The Minister relies on the Tribunal handing down its decision one week after the second hearing; the Tribunal making “detailed notes as indicated by its careful reasons for decision and the reference in the transcript to it typing and making notes”; the Tribunal not stating it relied on the applicant’s demeanour; and the Tribunal’ not making “bland assertions” about the applicant’s evidence but instead subjecting the applicant’s evidence and claims to detailed analysis, explaining why it rejected the applicant’s evidence and claims.[125] Counsel for the Minister relied on the judgment of Markovic J in BIX15 v Minister for Immigration and Border Protection.[126]
[124] First Respondent’s Outline of Submissions, [33]
[125] First Respondent’s Outline of Submissions, [34]
[126] [2017] FCA 1116
In his written submissions in reply, the applicant submitted there was a delay of between 21 and 22 months, and this constituted an “operative” delay.[127] The applicant submits that the Tribunal member did not at the second hearing refer to notes it had made during the first hearing. Further, although the Tribunal member said it heard the recording of the first hearing, “the tape is of poor quality and was not a fair substitute for procedural fairness”.[128] The applicant also submits that, contrary to the Minister’s submissions, there “are several obvious findings in the Determination [eg at 62ff] and in the passages in the transcript where demeanour clearly contributed to the result, a result adverse to the Applicant”.[129]
[127] Applicant’s Outline Submissions in Reply, [3]
[128] Applicant’s Outline Submissions in Reply, [4]
[129] Applicant’s Outline Submissions in Reply, [5]
In oral address, counsel for the applicant handed up a document described as “cases on operative delay” setting out cases in which a retrial was ordered because of the delay in arriving at the conclusion on the basis of which the orders were made. Counsel also handed up a document identifying 13 cases decided by the Tribunal member who presided over the applicant’s review.[130] Counsel submitted that, given that the Tribunal did not accept the applicant was credible, the Tribunal necessarily had to “recall what its impression of the witness was” – in other words, what the applicant’s demeanour was - but the only way the Tribunal was able to do this was by listening to the recording of the hearing. Counsel submitted that given the extensive findings of credit the Tribunal made, it “would be surprising that in such extensive findings demeanour had no role to play”[131]; and that “where credibility is in issue, it is - and the acceptability of the responses of the witnesses to questions put to him or her [needs to be assessed?], then clearly, demeanour is going to be an influence in relation to the acceptability or otherwise of those answers”.[132] Counsel submitted the quality of the recording was very poor, and he invited me to listen to it.
[130] I marked the two documents as “MFI1”
[131] T33.40
[132] T26.10
In my opinion, given the significant delay between the first and second hearing before the Tribunal, and the detailed consideration Markovic J gave to the significance of a similar delay in the case before her Honour in BIX15, the applicant’s claims based on the Tribunal’s delay raises a reasonably arguable case of jurisdictional error by the Tribunal.
Proposed ground 10
The submissions made in the applicant’s written submissions in relation to ground 10 are as follows:[133]
The failure to refer to the evidence of Professor Bowring and the uncontradicted evidence of the Applicant, supported by the finding of reckless and unpredictable conduct by the Ukraine authorities, suggests, consistently with the case under ground 8, that the Tribunal erred in finding that there was no evidence or material before it to justify the application.
[133] Applicant’s Outline of Submissions, [29]
These submissions are not arguable to the extent they suggest the Tribunal did not consider the evidence of Professor Bowring. As I have already noted, the Tribunal did consider that evidence. The balance of the submissions is more difficult to deal with. It does not identify the uncontradicted evidence of the applicant, or the finding of reckless and unpredictable conduct by the Ukraine authorities, or the case under ground 8, or the Tribunal’s finding there was no evidence of material before it to justify the application. The submission, therefore, and the grounds in support of which it is made, have no merit.
Should an order under s.477(2) be made?
I have found that one of the eleven grounds on which the applicant relies is arguable. Although I am not satisfied the applicant has given an adequate explanation for his delay in applying to the Court, the delay, although not nominal, is also not significant. Balancing these matters I am satisfied it is necessary in the interests of the administration of justice that I make an order under s.477(2) of the Act, and I will make such order at the time I publish these reasons.
Grounds of application
I have concluded that none of the grounds stated in the amended application, except to the extent they rely on the Tribunal’s delay, have any merit or are reasonably arguable. That means that the application should be dismissed to the extent it relies on those grounds. That, then, leaves me to consider the ground based on the Tribunal’s delay.
Principles
There is no question that undue delay in administrative decision-making may result in the denial of procedural fairness such as to render invalid a decision that is made after such a delay. But although “[u]ndue delay in decision-making, whether by courts or administrative bodies, is always to be deplored”, that generalisation “does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay”.[134] The question that must be addressed in any given case is whether the delay that has occurred resulted in the denial of procedural fairness; and the answer to that question requires consideration of two preliminary matters. The first is the standard of procedural fairness that must be observed by the particular decision-maker having regard to the nature of the decision-maker’s jurisdiction, and the statutory provisions that govern the exercise of that jurisdiction. The second preliminary matter is how delay is capable of preventing or hindering a decision-maker from complying with the applicable standards of procedural fairness.
[134] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, [5] (Gleeson CJ)
The common law rules of procedural fairness have limited operation to the manner in which the Tribunal exercises its jurisdiction under s.414 of the Act to review decisions. That follows from s.422B(1) of the Act that provides that Division 4 of Part 7 of the Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. Subsection 422B(1) of the Act implies, however, that Division 4 of Part 7 of the Act contains provisions that deal with matters that would otherwise be the subject of the common law rules of procedural fairness. For present purposes the most important provision is s.425(1) of the Act which requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
As I have noted elsewhere,[135] from the fact that s.425(1) of the Act requires the Tribunal to invite an applicant to appear to give evidence and present arguments it has been held that the resulting hearing itself must be conducted according to certain standards. It has been said, for example, that:[136]
Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture.
[135] BVM15 & Ors v Minister for Immigration & Anor [2017] FCCA 3141, [37]
[136] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 at [33]
And in Minister for Immigration and Citizenship v SZNVW, Perram J said:[137]
There are, for present purposes two aspects of these observations which warrant particular emphasis. First, the question is not whether the applicant has, or has not been treated fairly; rather, it is whether the process contemplated by s 425 has been “subverted”. Secondly, that subversion matters because if established it undermines the due administration of Part 7.
[137] [2010] FCAFC 41 at [83]
The principle that an applicant is entitled under s.425(1) of the Act to an oral hearing that is not a “hollow shell or an empty gesture” implies certain obligations on the part of the Tribunal. Important among these are the Tribunal’s obligations to hear, understand, and assess the evidence the applicant gives having regard to the arguments an applicant may advance. Section 425(1) of the Act further implies the Tribunal has the capacity to undertake all three tasks, and that it will maintain this capacity in the course of the conduct of its review of a particular decision. It is the requirement that the Tribunal maintain its capacity to assess an applicant’s evidence throughout its review of a decision that is most vulnerable to being undermined or subverted by delay.
The principal causal mechanism by which delay may undermine, or, just as importantly, give the appearance of undermining the Tribunal’s capacity to assess an applicant’s evidence is the universally acknowledged consequences of time on memory. Time dims even the most vivid of memories. But it is not the passage of time by itself that is most destructive of memory. It is what occurs over time. A person is subjected to a constant stream of new impressions requiring processing that not only pushes out of consciousness previously acquired memories, but burdens a person’s memory with additional matters that may need to be recalled. The problem is particularly acute in the case of decision-makers who are required to hear, understand, and assess many cases. Time’s destructiveness of memory, therefore, gives rise to the risk or to the appearance of the risk that when the Tribunal comes to decide an application, it will not have a recollection of important aspects of what occurred at the hearing, or what issues were raised at the hearing; or it might incorrectly believe certain things were said or not said at the hearing; or it might have an incorrect or incomplete recollection of how the applicant gave his or her evidence. Even worse, the delay may give rise to the risk, or to the appearance of the risk, that the decision-maker will be tempted to “take the path of easy resolution”,[138] and not take the path of arriving at the correct decision.
[138] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, [87] (Kirby J)
Whether or not, however, in any given case delay gives rise or appears to give rise to these risks posed by delay depends on a number of matters. One is whether at the time the Tribunal makes its decision a record was kept of the hearing, and if so the extent to which the record is complete and accurate. All other things being equal, the more complete the record of the hearing, and assuming the Tribunal has regard to the record that was kept when it makes its decision, the less likely will there be a risk or the appearance of the risk that the Tribunal did not recall the evidence the applicant gave at the hearing and, therefore, be in a position properly to deal with the evidence.
Another matter is the grounds on which the Tribunal did not accept an applicant’s evidence. Of significance here is whether an applicant’s “demeanour” played any role in the Tribunal’s decision not to accept an applicant’s claim. That question appeared prominently in the submissions made before me in this case.
The notion of “demeanour” in the context of assessing the credibility of a witness in litigated cases denotes the appearance a witness presents while giving evidence, and the manner in which a witness gives evidence. It has been accepted that the appearance of a witness while giving evidence, and the manner in which he or she gives evidence, are matters on which it is rationally open to a court to rely when assessing the willingness or ability of a witness to tell the truth. The availability of demeanour as a rational source for assessing the credibility of a witness has been recognised in the context of the power of an appellate court to interfere with a primary judge’s findings of fact. Findings based on or at least materially influenced by a trial judge’s assessment of a witness’s demeanour are, in the absence of inconsistency with incontrovertible established facts, generally free from appellate interference.[139]
[139] See, for example, Fox v Percy [2003] HCA 22
What may be regarded as a classical statement of the relevance of demeanour to assessing credibility is the following passage from the judgment of Isaacs J in Dearman v Dearman (emphasis added):[140]
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal. So far as their judgment may depend upon these circumstances they are not in a position to reverse the conclusion which has been arrived at by the primary tribunal. Now it may be that in some cases the effect of what I call the unrecorded material is very small, indeed insignificant, and utterly outweighed by other circumstances. It may be, on the other hand, that it guides, and necessarily guides, the tribunal to the proper conclusion. If that is the case, as I have said before, the Court of Appeal cannot say that the conclusion is wrong without disregarding the material which it knows must have been existent before the tribunal below, and is necessary to a just conclusion.
[140] Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, at pages 561-562
This passage highlights that demeanour cannot be completely recorded and thus completely preserved in some record. That means that the greater a Tribunal’s reliance on demeanour in not accepting an applicant’s credit, the greater will be its reliance on memory; and the greater, therefore, will be the risk that delay will undermine the Tribunal’s capacity to remember an applicant’s appearance and the manner in which the applicant gave evidence and, therefore, be in a position to asses an applicant’s evidence on that basis. And there is another aspect of demeanour that has been noticed, at least where a trial judge resolves a conflict of evidence between witnesses. It has been said that “the subtle influence of demeanour” on that “determination cannot be overlooked”.[141]
[141] Jones v Hyde [1989] HCA 20, at [18] (McHugh J)
Another matter relevant to whether the delay has given rise to the risk of depriving or inhibiting the Tribunal’s capacity to assess the evidence an applicant has given is the reasons the Tribunal has given for not accepting an applicant’s evidence. And here the most important considerations are the extent to which the Tribunal accurately recorded in its reasons the claims that were made, the evidence that was given in support of those claims, whether the Tribunal gave reasons for not accepting the applicant’s evidence and, if so, what those reasons were, and whether they relied on the Tribunal’s assessment of the applicant’s demeanour. Of some relevance is what has been said in the context of appellate review of the reasons of a judge:[142]
In cases not affected by delay, an appellate court is entitled to assume that the mere failure to refer to evidence does not mean that it has been overlooked or that other forms of error have occurred. However, where there is significant delay, no favourable assumptions can be made. In such circumstances, it is up to the trial judge to put beyond question any suggestion that he or she has lost an understanding of the issues. Where there is significant delay, it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected. It is necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses . . .
[142] Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189, [72]
I have so far referred to the risk of delay, or the appearance of the risk of delay undermining the Tribunal’s capacity to assess the applicant’s evidence. I have not, however, said anything about the level of risk that should be found to exist before it could be concluded that delay has led to the Tribunal failing to properly discharge its jurisdiction to review decisions. That risk must be real and substantial. That follows from what Gleeson CJ said in NAIS:[143]
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.
[143] [2005] HCA 77, [10]. See also Kirby J at [106]: “I also agree with Gleeson CJ that, in order to make good a claim of unfairness, it is sufficient to establish that there was a substantial risk that the Tribunal's capacity to assess fairly the appellants' evidence, and to carry out its decision-making functions conferred by the Act, was impaired by the procedures adopted by the Tribunal.”
Did the delay diminish the Tribunal’s capacity to evaluate applicant’s claims and evidence?
The question that arises on this part of the applicant’s case, therefore, is whether the Tribunal’s delay created a real and substantial risk that its own capacity for competent evaluation of the applicant’s evidence and case was diminished.
The first matter to consider is whether at the time the Tribunal made its decision it had before it a record of the two hearings. It is not in dispute the hearings were recorded - a complete copy of the audio recording has been admitted into evidence;[144] and although I was invited to listen to it, I only listened to the extracts contained in annexure B. As submitted by the applicant, however, the quality of the recording I heard is very poor; and I infer that the extracts that form exhibit B are a representative reflection of the entire recording of the two hearings. Although the recordings are of a poor quality, they were not of such quality that they could not be transcribed. The transcript is in evidence before me.[145] In his affidavit made on 15 September 2016 the applicant said the recordings of the hearing were of poor quality “and some parts were obviously missing”.[146] The applicant, however, has not identified what parts were missing. In addition to the recording, it appears from the transcript that the Tribunal member was typing during the course of the hearing. That suggests that the Tribunal member was taking “notes” by typing into a computer matters that were said during the hearing.
[144] Exhibit A
[145] M Shumsky affidavit, 12.05.2017
[146] Applicant’s affidavit 15.09.2016, [27]
The next matter to consider is whether the Tribunal had regard to the recordings or to any notes Tribunal member made during the hearings. During the second hearing, the Tribunal said: “I listened to the tape from the previous hearing”;[147] and that “I am going to take into account all your evidence from last time and what we discussed today”.[148] And in its reasons for decision the Tribunal said:[149]
At the second hearing the Tribunal noted it had listened to the tape of the previous hearing and would take into account that evidence (and that it still had the previous concerns raised about his claims).
[147] M Shumsky affidavit, 12.05.2017, page 51
[148] M Shumsky affidavit, 12.05.2017, page 67.3
[149] CB280, [53]
Counsel for the applicant submitted there is no reference in the Tribunal’s reasons to its having had regard to any notes. Counsel further submitted that “the tape is of poor quality and was not a fair substitute for procedural fairness for a trial upon evidence that is recalled and fully apprehended by the decision-maker”.[150] I take this to be submission that the Tribunal’s listening to a poor quality tape of the first hearing did not overcome the effect of the delay between the first hearing the day on which the Tribunal made its decision.
[150] Applicant’s Outline Submissions in Reply, [4]
Whether that submission is correct depends on whether by listening to the recordings of the hearing and by other means, such as referring to notes it may have made during the hearing, the Tribunal put itself in the position, or at least substantially in the position, it would have been in had the delay not occurred. And that question is not to be determined only by reference to the quality of the audio recordings; it is also to be determined by reference to the Tribunal’s reasons. Those reasons are detailed. A large part of the Tribunal’s reasons consists of setting out matters the Tribunal put to the applicant during the hearings, and the applicant’s responses to what the Tribunal put to him. The inference that is available to be drawn from this, and which I do draw, is that the Tribunal relied on a complete record of what occurred at the first hearing, that record consisting of the audio recording, and of notes the Tribunal member made on the computer during the hearing. My confidence in drawing that inference is enhanced by the fact that the applicant and his representatives have heard the audio recordings and, although with some difficulty, produced a transcript of the hearing; yet the applicant has not submitted that the Tribunal inaccurately recorded in its reasons the claims the applicant made at the hearing or the evidence on which he relied. Nor does the applicant submit the Tribunal failed to consider claims the applicant made, or evidence on which he relied at the hearing in support of those claims.
The third matter to consider are the grounds on which the Tribunal did not accept the applicant’s claims. It is true the Tribunal did not accept the applicant was credible; and it is true that the Tribunal referred to the manner in which the applicant gave evidence at the hearing, that is, the applicant’s demeanour. The Tribunal found the applicant was evasive; he objected to questions the Tribunal asked of him; on occasions the applicant would not answer the Tribunal’s questions, but would instead repeat what he wanted to say; the Tribunal made numerous efforts to stop the applicant from interrupting; and the applicant also yelled and hit the table in response to which the Tribunal asked him not to do so.[151] The relevance the Tribunal attached to these observations is apparent in the following passage from its reasons:[152]
The Tribunal is satisfied that, despite his interruptions and evasive approach, he was able to understand the proceedings, and present evidence and arguments.
[151] CB279, [43]-[45]
[152] CB279, [46]
As should be apparent from the summary I have given of the Tribunal’s reasons for decision, however, the Tribunal did not rely on its observations about the applicant’s conduct during the hearing for not accepting the applicant’s claims. And I am satisfied that the Tribunal did not rely on the applicant’s demeanour in deciding not to accept the applicant’s claims. The Tribunal relied on what it found to be the inconsistencies in and inherent improbabilities of the applicant’s evidence and claims. In those circumstances there is no real and substantial risk that the Tribunal relied on demeanour in circumstances where the delay would have denied it the competence to properly assess the applicant’s evidence having regard to its recollection of the applicant’s demeanour.
The fourth matter to consider is the Tribunal’s reasons. As I have already noted, they are detailed; they set out the applicant’s claims; they set out the matters the Tribunal put to the applicant during the hearings, and the responses the applicant made to what the Tribunal put; and the Tribunal gave detailed reasons to support its finding that it did not accept the applicant to be a credible witness.
For these reasons, I am not satisfied the Tribunal’s delay in making its decision, and in particular the delay between the first hearing that took place on 9 October 2014 and the second hearing that took place on 21 June 2016, gave rise to a real and substantial risk that the Tribunal’s ability to review properly the applicant’s claims and evidence was diminished. I am satisfied the Tribunal listened to the recording of the first hearing, and had regard to notes it made on its computer during the course of the first hearing; and by so doing, and given the Tribunal did not rely on the applicant’s demeanour, the Tribunal put itself in the position or substantially in the position it would have been in had it decided the applicant’s claims without undue delay.
There is one final matter to consider, and that is the applicant’s submission that the Tribunal’s reliance on the time that had passed since 2010 when the applicant had last published an article and, therefore, the time that had passed since the applicant was politically active, “would not have been as significant had they reached a decision after the first hearing” and that this “prejudiced [the applicant’s] chance of a fair hearing”.[153] I do not accept that submission. The Tribunal found that the documents the applicant published did not represent his genuine opinion.[154] Given that finding, the time that may have passed between the publication of the documents and the date on which the Tribunal gave its decision could not reasonably have been of any relevance.
[153] Applicant’s Outline Submissions, [26]
[154] CB302, [148]
This part of the applicant’s claims, therefore, also fails.
Conclusion and disposition
I propose to make an order pursuant to s.477(2) of the Act extending to 16 September 2016 the time by which the applicant may make an application to this Court for a remedy under s.476 of the Act, and then make an order dismissing the proceeding. I will deal with the question of costs at the time I pronounce my orders.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 14 December 2018
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