FEDERAL COURT OF AUSTRALIA

MZYUM v Minister for Immigration and Citizenship [2013] FCA 51

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth)

REASONS FOR JUDGMENT

INTRODUCTION

1    By a notice of appeal filed on 10 September 2012, the appellants appeal from a decision of a Federal Magistrate who, on 21 August 2012 dismissed their application for review of a decision of the second respondent, the Refugee Review Tribunal (“the Tribunal”) made on 9 January 2012. The Tribunal affirmed a decision of a delegate of the first respondent refusing the appellants’ application for a Protection (Class XA) visa made on 15 April 2010.

2    The first appellant, a citizen of Sri Lanka, aged in his seventies, arrived in Australia on 9 December 2009 with the second appellant, his wife, travelling on Sri Lankan passports. The first appellant claimed to fear persecution because he had assisted the Liberation Tigers of Tamil Eelam (“LTTE”).

3    On 18 January 2010, the first appellant filed an application and supporting documentation with the Department of Immigration and Citizenship (“the Minister”) for a Protection (Class XA) visa and appointed a migration agent as his authorised recipient. His wife, who claimed to be a member of the first appellant’s family unit, combined her application with his. Hereafter in these reasons, unless otherwise indicated, “the appellant” refers to the first appellant.

4    On 26 March 2010, a delegate of the Minister invited the appellant to attend an interview in relation to his visa application.

5    On 15 April 2010, the delegate refused to grant the appellants a protection visa, as the delegate was not satisfied that the appellants were non-citizens in Australia to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol.

application to the tribunal

6    On 3 May 2010, the appellant applied to the Tribunal for a review of the delegate’s decision.

7    On 11 May 2010, the Tribunal, by facsimile to the appellant’s authorised recipient, invited the appellant to appear before it on 18 June 2010. On 21 May 2010, the appellant informed the Tribunal that he, his wife, and his representative would attend the hearing on 18 June 2010 and that an interpreter was required. The appellant also provided further supporting documentation. On 8 June 2010, the appellant informed the Tribunal that his wife would not attend the hearing.

The Tribunal hearing

8    On 18 June 2010, the appellant, his daughter, and his migration agent attended the Tribunal hearing.

9    Before the Tribunal, the appellant confirmed that he worked for the Sri Lanka Tea Board from 1960 to 1999 and lived in Wattala, Colombo until he retired as an Assistant Commissioner. After his retirement, he joined the United National Party which he supported by canvassing for his local member in the December 2001 general election.

10    The appellant claimed that in April 2002, he went to Jaffna, which was his birthplace, and from 2003 to 2006 helped the LTTE by translating newspapers from Sinhala into Tamil, including news about the LTTE’s propaganda work. The appellant stated that he selected the news items to be translated. The Tribunal put to him that it was difficult to believe that the LTTE, as a well-resourced organisation, required such services. The Tribunal also questioned the appellant on why he assisted the LTTE, which was a banned terrorist organisation which had killed innocent civilians. The appellant responded that his role was mainly to do translations, rather than to help the LTTE. The Tribunal put to the appellant that it found his evidence very difficult to believe, and did not think he was telling the truth.

11    The Tribunal questioned the appellant about his claim that he was detained and threatened by members of the Eelam People's Democratic Party (“EPDP”) in a camp in May 2006, and was released only on payment of a ransom after intervention by the Bishop of Jaffna. The Tribunal questioned why, if the appellant had only been making translations, that would occur.

12    The appellant claimed that he joined the Civil Monitoring Committee (“Committee”) in May 2006, and helped lawyers to collect details of, and represent, missing persons. When queried, the appellant responded that a friend who worked for the Tamil Congress had requested him to assist.

13    The appellant claimed that he worked with the Committee until November 2006 when it ceased work due to the assassination of Mr Raviraj, a member of parliament. According to the appellant, he had no other involvement because he wanted a peaceful life, and worked for the Committee because he wanted to serve the Tamil community.

14    The Tribunal questioned the appellant about his claim that in June 2009, one Mr Vinayagamoorthy asked him to accommodate a Tamil couple in the annexe of his residence. The appellant claimed that when the couple was arrested in August 2009 as LTTE cadres, he was detained overnight by police and thereafter, on numerous occasions until October 2009, was taken to the police station. He also received anonymous phone calls accusing him of being an LTTE collaborator.

15    The Tribunal put to the appellant that, given that he obtained a visa on 26 October 2009, his delay in leaving Sri Lanka until 8 December 2009 did not make sense if, as he claimed, he was distressed by police activities and was fleeing Sri Lanka.

16    The Tribunal stated at [63]:

I indicated to the applicant that I was going to give him some information which I considered would be the reason, or a part of the reason, for affirming the decision under review. I indicated that I would explain the information to him so that he understood why it was relevant to the review and that I would also explain the consequences of the information being relied upon in affirming the decision under review. I indicated that I would ask him to comment on or to respond to the information. I indicated that if he wanted additional time to comment on or to respond to the information he could tell me and I would then consider whether to adjourn the review to give him additional time.

17    The Tribunal recorded that it orally put to the appellant the matters identified in [64]-[68] of its reasons, explained that all the information was relevant because it cast doubt on whether he was telling the truth and made it difficult to accept that there was a real chance that he would be persecuted as a Tamil or because of a perceived political opinion in support of the LTTE if he returned to Sri Lanka. The Tribunal stated that the information, if relied upon, might form part of the reason for concluding that the appellant was not a person to whom Australia had protection obligations, who was entitled to a protection visa.

18    The Tribunal recorded that the appellant said that he understood, and it then invited him to comment on or to respond to the information. The appellant made some oral responses, after which “[t]he [appellant’s] representative said that he would prefer to respond in writing but he also wanted to have an adjournment and for the [appellant] to be given a further opportunity to respond orally” at [70].

19    After the adjournment, the appellant made further oral responses in relation to a number of issues. The Tribunal recorded that the appellant’s representative then stated “that he would paraphrase what the [appellant] had said in a better way” (at [75]) and proceeded to make a number of submissions.

20    The Tribunal recorded that after the appellant and his representative had addressed the matters, the Tribunal and the appellant’s representative discussed whether any person had been charged in relation to the assassination of, among other persons, Mr Raviraj.

Subsequent correspondence with Tribunal

21    On 21 June 2010, the Tribunal invited the appellant, by a facsimile which it described as a s 424A letter, to comment on or respond to information which the Tribunal considered would (subject to the appellant's comments or response) be the reason or part of the reason, for affirming the decision under review. The facsimile included the matters which the Tribunal had already put to the appellant, and to which he and his agent had responded orally, during the hearing. The Tribunal requested a response by 5 July 2010.

22    On 5 July 2010, the appellant’s migration agent requested a one day extension for the response, which the appellant provided on 6 July 2010. On 21 November 2010, the appellant provided further documentation dated 19 November 2010 and on 11 January 2011 made a further submission to the Tribunal.

23    On 9 January 2012, the Tribunal decided to affirm the delegate’s decision. The Tribunal’s reasons recorded that on 21 June 2010, it sent the s “424A letter” set out at [83]. The Tribunal noted the appellant’s written response dated 5 June 2010 (received on 5 July 2010), a letter dated 19 November 2010 and a press report, and a further submission dated 11 January 2011 forwarded by the appellant’s representative.

The Tribunal’s findings

24    The Tribunal concluded at [91]:

The applicant was articulate and gave his evidence in a forthright manner and he indicated that he understood the issues which I raised with him in the course of the hearing although he appeared unforthcoming in his responses to my questions and unwilling to engage with the issues. I consider that the applicant was able to participate effectively in the hearing before the Tribunal.

25    The Tribunal stated at [95]:

In the present case, as I put to the applicant in the course of the hearing before me and as referred to in the Tribunal’s section 424A letter, I have difficulty in accepting that the applicant is telling the truth about the problems he had in Sri Lanka. I note that in their response to the Tribunal’s section 424A letter the applicant's representatives complained that the Tribunal had not separated the information in relation to which the Tribunal was obliged to invite the applicant to comment or respond from the other information in the letter. The applicant’s representatives did not suggest that the applicant had been disadvantaged in any way by this course of action and given that the letter was sent after the hearing I do not accept that the applicant was disadvantaged in any way by the inclusion of this information in the Tribunal's letter.

26    The Tribunal referred, seriatim, to inconsistencies, implausibilities or contradictions in the appellant’s story. The Tribunal concluded that, for the reasons given, it did not accept that the appellant was telling the truth about the problems he had in Sri Lanka. The Tribunal did not accept that the appellant lived in Jaffna from April 2002 until May 2006, undertook translation work for the LTTE from 2003 to 2006, was (due to his translation work for the LTTE) taken in May 2006 by members of the EPDP (who threatened to shoot him and demanded money) or was released after paying a ransom with the assistance of the Bishop of Jaffna (at [112]).

27    The Tribunal likewise, on the basis of the view it formed of the appellant’s credibility, did not accept that he was briefly involved with the Committee from around August 2006 until November 2006, when Mr Raviraj was assassinated or that the appellant (as a result of that involvement) received anonymous threatening telephone calls.

28    The Tribunal did not accept that on 27 August 2009, the appellant at [114]:

was summoned to the police station, detained overnight and threatened with being implicated with involvement in the LTTE because he had rented out the annexe to his house in Colombo to a Tamil couple from Jaffna who had been arrested that day as LTTE cadres. I do not accept that thereafter the applicant was routinely taken to the police station, threatened, humiliated and forced to part with money for his freedom nor that he started to get anonymous threatening telephone calls which he believed to be from the police accusing him of being an LTTE collaborator.

29    The Tribunal stated that, having regard to the advice of the Australian Department of Foreign Affairs and Trade (DFAT cable CL605, dated 15 May 1997, CX22852), it was utterly implausible that the appellant would have been accused and treated as claimed, particularly as he and his wife delayed their departure from Sri Lanka for over a month after obtaining an Australian visa.

30    The Tribunal concluded at [116]:

Having regard to my findings of fact above, I do not accept that, as the applicant's representatives said in their submission dated 11 January 2011, the applicant comes within the UNHCR Guidelines as a person suspected of having LTTE links. I do not accept that the applicant has ever worked for the LTTE nor that he has ever been suspected or accused of having links with the LTTE. I do not accept that there is a real chance that the applicant will be harassed, threatened, detained, arrested, imprisoned, killed, or otherwise persecuted by the police, Tamil paramilitary groups or anyone else for reasons of a political opinion imputed to him in favour of the LTTE if he returns to his home in Colombo now or in the reasonably foreseeable future.

31    The Tribunal sent its decision to the appellant’s authorised recipient by registered post, under cover of a letter dated 9 January 2012.

Application to federal magistrates court

32    On 6 February 2012, the appellant filed an application for review of the Tribunal’s decision with the Federal Magistrates Court, and, on 15 May 2012, filed an amended application for review, which set out the following grounds:

1.    The Tribunal has breached section 424A of the Migration Act, in that the exception created by sub section (3) of that section prevents the issue of the notice, thereby leading to jurisdictional error, and there being no probative evidence on the issues in relation to credibility.

2.     The Tribunal has breached sections 414 & 414A of the Migration Act by its failure to review the decision in respect of a valid application that was before it, and further its failure to make a decision within the time prescribed by section 414A of the Migration Act.

3.     The Tribunal breached section 420 and 422B of the Migration Act by its failure to accord to the applicant substantial justice and the merits of the case and further its failure to act in a way that is fair and just, and thereby denying the applicant natural justice.

33    On 3 July 2012, the appellant attended a hearing of the application before a Federal Magistrate. On 21 August 2012, his Honour delivered reasons for judgment and dismissed the application for review.

The Federal Magistrate’s decision

34    At [9] to [19] in his reasons for judgment, the Federal Magistrate considered and dismissed the first ground of review. His Honour found that s 424A(1) of the Migration Act 1958 (Cth) (“the Act”) imposed upon the Tribunal a positive obligation to put information to an applicant, whereas s 424A(3) provided exemptions from that obligation. His Honour found that s 424A(3) described the information which was not subject to a positive obligation under s 424A(l) of the Act, but did not oblige a Tribunal not to give that information.

35    Accordingly, his Honour did not accept that the Tribunal had breached s 424A of the Act by sending the letter dated 21 June 2010, which gave the appellant a further opportunity to comment upon information put to him at the hearing on 18 June 2010, following his request for that opportunity.

36    His Honour also concluded that the Tribunal’s findings on the appellant’s credibility were open to it on the evidence, and that its reasons were cogent and probative. He observed that the appellant had, in effect, invited the Court to conduct a merits review, for which it lacked jurisdiction.

37    His Honour dismissed the second ground of the amended application. He found that there was no basis to find that the Tribunal failed to review the application in accordance with s 414 of the Act. He noted that under s 414A(2) of the Act, the Tribunal’s non-compliance with the time period required by s 414A(1) of the Act did not affect the validity of its decision.

38    His Honour noted that counsel for the appellant did not press an argument based on NAIS v Minister for Immigration and Multicultural Affairs (2005) 228 CLR 470 (“NAIS”) in his oral or written submissions. His Honour was, however, satisfied that NAIS was distinguishable, because the finding on the appellant’s credibility was not based solely or significantly on his demeanour, but upon the inconsistencies contained in his evidence. There was thus no jurisdictional error of the kind identified in NAIS.

39    His Honour dismissed the third ground of the amended application. He noted that the transcript of the Tribunal hearing revealed that the Tribunal had adopted the appellant’s own language. There was accordingly no basis for the allegation that the Tribunal had embarked on a “frolic” of its own, and occupied itself with tangential issues (at [26]). His Honour found that the appellant had not established that the Tribunal had “failed to act in a way that was fair and just” (at [28]). Its reasons demonstrated that the Tribunal had discharged its statutory obligations, arrived at a decision that was open on the evidence, and exhibited cogent and probative logic. His Honour referred to s 422B of the Act, and found that there had been no breach of natural justice or procedural fairness.

40    His Honour concluded that the appellant had failed to demonstrate that the Tribunal had made a jurisdictional error. He found that the decision under review was a privative clause decision under s 474 of the Act, and dismissed the amended application.

THE APPEAL

41    The notice of appeal filed on 10 September 2012 set out three grounds of appeal. The appellant also filed written submissions dated 13 November 2012.

42    The first respondent, who sought to uphold the Federal Magistrate’s decision, filed written submissions dated 20 November 2012.

Discussion

Ground 1(a)

43    Ground 1(a) of the notice of appeal states:

The Tribunal has breached section 424A of the Migration Act in that the exception created by subsection 3 of that section prevents the issue of the notice, thereby leading to jurisdictional error.

(a)    The learned Federal Magistrate erred in saying that “the action of the Tribunal in this instance, both in the way it approached the issue of allowing further comment after the hearing, even though not required to do so, amounts to a very generous and fair-minded approach being extended by the Tribunal to the applicant” please see paragraph 15 of the judgment.

44    Section 424A provides:

424A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

45    Section 424AA of the Act provides:

424AA    Information and invitation given orally by Tribunal while applicant appearing

If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

46    On appeal, as “the sheet anchor” of his case, counsel for the appellant, reiterated that the Tribunal’s provision of a section “424A notice” to the appellant constituted jurisdictional error, because it was not required under s 424A(1).

47    While the Tribunal’s letter to the appellant dated 21 June 2010 did not state that it was sent pursuant to s 424A, the accuracy of the Tribunal’s subsequent description of it as a section “424A letter” was not disputed. Nevertheless, it was common ground that the Tribunal had provided the information and invited comment during the hearing, so there was no obligation under s 424A(1) to do so by the letter.

48    In my opinion, the Federal Magistrate did not err in concluding that, in the circumstances, there was no breach of s 424A. Section 424A(3) neither expressly nor by implication prohibits the Tribunal from providing, an appellant with, and inviting comment on, information that the subsection exempts from the application of the section. As the Federal Magistrate held, subsection (3) merely defines categories of information which are not subject to the obligation in s 424A(1).

49    Although the argument before the Federal Magistrate and on appeal proceeded on the basis that the information in the letter dated 21 June 2010 was excluded under subsection (3) from the application of s 424A(1), more accurately, in my opinion, the information was exempt from the obligation under s 424A(1) pursuant to subsection (2A). The outcome is, in either case, the same, as, like s 424A(3), s 424A(2A) does not, in terms or by implication, preclude the Tribunal from providing particulars of information and a further opportunity to comment merely because, due to compliance with s 424A(2A), there is no obligation to do so.

50    At [15] of his reasons, the Federal Magistrate stated:

The action of the Tribunal in this instance, both in the way it approached the issue of allowing further comment after the hearing, even though not required to do so, amounts to a very generous and fair-minded approach being extended by the Tribunal to the Applicant. In those circumstances, it ill-behoves the Applicant to complain.

51    The appellant relied on the above observations as a “crystal clear” acknowledgement that the Tribunal was under no statutory obligation to send the letter, which was not, in any event, disputed. As the Federal Magistrate noted, the letter was due to the appellant’s request for an opportunity to provide a written response to the information after the hearing. It was not alleged that any prejudice resulted from affording the appellant, at his request, a further opportunity to comment. For the reasons stated above, the provision of that opportunity did not constitute jurisdictional error.

52    In my opinion, ground 1(a) was not established.

Ground 1(b)

53    Ground 1(b) of the notice of appeal states:

(b)    The learned Magistrate further erred in equating that there was no probative evidence as alleged by the applicant as to credibility finding that is uniquely vested within the Tribunal. The applicant content that they are two distinct issues.

54    Sub-ground 1(b) was not clearly expressed. The appellant appeared principally to complain that the Tribunal found that he was not a credible witness without any “probative evidence”, particularly in relation to the following four issues:

    the appellant’s involvement with the Committee;

    the appellant’s rental of his property to a perceived LTTE member;

    the appellant’s six week delay in departure from Sri Lanka; and

    the appellant’s translation work for the LTTE in Jaffna (where he was lived from 2002 to 2006).

55    The appellant’s submissions in support of sub-ground 1(b) were also obscure. If and in so far as the appellant disputed that credibility findings are findings of fact and uniquely within the jurisdiction of the Tribunal (at [16]), his Honour correctly held the contrary, on the basis of Re Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham (2000) 168 ALR 407 at [64]-[67]; NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9].

56    In written submissions, the appellant alleged that the Federal Magistrate misconstrued his complaint about the credibility finding and his conclusion was therefore irrelevant. The appellant did not clearly explain the nature of the alleged misconstruction or how the original complaint under this sub-ground should have been understood.

57    The Federal Magistrate reasonably interpreted the relevant complaint as a covert invitation to make an impermissible merits review and correctly dismissed it on the stated basis.

58    To the extent to which the appellant’s complaint was that the Tribunal made factual findings contrary to his claims in the absence of evidence challenging those claims, such criticism was also unfounded.

59    The Tribunal was not required to make the appellant’s case, nor uncritically to accept any or all of his claims (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] and [14]. There was, in any event, evidence contrary to some claims, such as the DFAT advice relevant to the appellant’s claim concerning the rental to LTTE cadres. The Tribunal was entitled to find that the appellant’s claims were not established because they were inherently implausible, contradictory or inconsistent with country information or other established facts.

60    As the Federal Magistrate found, the Tribunal’s findings on credibility and fact were open on the evidence, and supported by cogent reasons.

61    In my opinion, ground 1(b) was not established.

Ground 2

62    Ground 2 of the notice of appeal stated:

The Tribunal breached sections 414 & 414A of the Migration Act by its failure to review the decision in respect of a valid application that was before it, further its failure to make a decision within the time prescribed by section 414A of the Migration Act.

(a)    A reading of the judgment of the learned Federal Magistrate will clearly illustrate the decision was not reviewed by the Tribunal as contemplated by the Act.

(b)    The delay in making a decision under section 414A (2) has nothing to do with the validity of the decision. The interpretation given by the learned Federal Magistrate as seen in paragraph 21 of his honour’s decision does not answer the question of delay as contemplated in the High Court decision of NAIS v MIMA. It would further appear that in ruling “NAIS” is not relevant to the applicant case on account of there being conflict in the evidence of the applicant according to his honour (please see paragraph 23 of the judgment) is ill founded.

63    Section 414 of the Act provides:

414 Refugee Review Tribunal must review decisions

(1)    Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

(2)    The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).

64    Section 414A of the Act provides:

414A Period within which Refugee Review Tribunal must review decision on protection visas

(1)    If an application for review of an RRT-reviewable decision:

(a)    was validly made under section 412; or

(b)    was remitted by any court to the Refugee Review Tribunal for reconsideration;

then the Refugee Review Tribunal must review the decision under section 414 and record its decision under section 430 within 90 days starting on the day on which the Secretary gave the Registrar the documents that subsection 418(2) requires the Secretary to give to the Registrar.

(2)    Failure to comply with this section does not affect the validity of a decision made under section 415 on an application for review of an RRT-reviewable decision.

65    The appellant’s submissions did not elaborate on the allegation that the Tribunal failed to review the decision as required by s 414 of the Act.

66    As the first respondent submitted, the material before the court revealed no basis for a breach of s 414 of the Act. A valid application was made to, and reviewed, by the Tribunal. To the extent to which the appellant complained that there was no review on the merits, a review of that character was neither required nor permissible.

67    The appellant also complained that the Tribunal’s decision had not been made within the stipulated time contemplated under s 414A of the Act and, under sub-ground (b), alleged that the Federal Magistrate erred in distinguishing NAIS.

68    It was not disputed that the Tribunal did not comply with s 414A of the Act. As the Federal Magistrate stated at [6]:

Thereafter followed a lengthy delay until 9 January 2012 when the Tribunal made its decision affirming the delegate’s decision. Part of the delay can be attributed to the late filing of responses and further information by the Applicant in support of his application. Even so, there was nonetheless a delay since the filing of the Applicant’s last material until the decision was made of approximately 12 months.

69    His Honour nevertheless held, in reliance on s 414A(2) of the Act, that the validity of the decision was not affected. He also concluded that the principles in NAIS did not apply to the present case. His Honour stated at [23]:

I am satisfied that the circumstances of this proceeding are different from that examined by the High Court in NAIS, and can be distinguished to some significant degree by the fact that that case focussed on credibility findings arising out of the independent witnesses. In this case, however, the Tribunal made its credibility findings, not on the basis of an adverse assessment of the Applicant as a witness or the Applicant’s demeanour, sincerity or reliability, but upon the conflicts in the evidence given after an examination of those conflicts.

70    The appellant submitted, Delphically in my view, that the Federal Magistrate misconstrued the conflicts and internal inconsistencies in the appellant’s evidence when he distinguished NAIS.

71    Before me, counsel for the appellant also submitted that the Tribunal’s delay had an adverse impact because “the political landscape” significantly changed between the date of the Tribunal hearing and its decision, in a way which encouraged the Tribunal to find against the appellant.

72    In my opinion, the Federal Magistrate did not err as alleged. While the precise meaning of the appellant’s submissions under this ground was unclear, it was not the legitimate role of the Federal Magistrate to construe conflicts or inconsistencies in the evidence. Nor did his Honour purport to do so. As the first respondent submitted, the Federal Magistrate addressed the Tribunal’s findings and found that they were open on the evidence before it, and that the reasons given were cogent and probative (at [18]).

73    Further, his Honour persuasively distinguished the circumstances of the present case from those in NAIS. In contrast to NAIS, in this case, the Tribunal’s credibility findings did not significantly depend on its assessment of the appellant’s demeanour, sincerity or reliability as a witness before the Tribunal. Rather, they were based on the inconsistencies identified in his written and oral claims, and the contradictions between his conduct and his various claims (see NAIS per Gleeson CJ at [10], Kirby J at [85] and [88], and Callinan and Heydon JJ at [169] to [174]). The time between the hearing and the handing down of the decision was not comparable to the delay in NAIS, where the decision was delivered more than five and a half years after the application was filed following two sessions of intervening oral evidence separated by a period of about three and a half years (at [168])). NAIS was expressly recognised to be “a very exceptional case” (at [174] per Callinan and Heydon JJ). In this case, delay did not occasion the loss or material reduction of any advantage in assessing credibility based on demeanour, and his Honour was entitled to so conclude. The alleged impact of delay on “the political landscape”, and its relevance in this context, were not further explained or established. As Gummow J stated in NAIS, “excessive delay of itself does not prove a breach of the rules of natural justice. The question is whether it is to be inferred that the delay in the particular proceeding has denied to an interested party the opportunity to present its case” (at [55]). Here, there was nothing to suggest that delay had denied the appellant the opportunity to present his case.

74    In my opinion, ground 2 was not made out.

Ground 3

75    Ground 3 of the notice of appeal states:

The Tribunal breached sections 420 & 422B of the Migration Act by its failure to accord to the applicant substantial justice and the merits of the case and further its failure to act in a way that is fair and just thereby denying the applicant natural justice, in that what the applicant said in relation to the civil monitoring committee being “defunct” was not a fair interpretation of what the applicant said in its entirety.

76    Section 420 of the Act provides:

420    Refugee Review Tribunal’s way of operating

(1)    The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)    The Tribunal, in reviewing a decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)    must act according to substantial justice and the merits of the case.

77    Section 422B of the Act provides:

422B    Exhaustive statement of natural justice hearing rule

(1)    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)    Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

78    The appellant referred to the Federal Magistrate’s statement at [28] that:

More generally, in addressing the alleged breach of s.420 of the Act, the Applicant has failed to establish that the Tribunal “failed to act in a way that was fair and just.” In my view, the reasons for decision provided by the Tribunal demonstrate that the Tribunal has discharged fully its statutory obligation and arrived at a decision that was open to it on the evidence and it exhibited cogent and probative logic.

79    The appellant submitted that the Federal Magistrate, in dealing with this ground of complaint, erred by failing to address his specific claim, and rather, made a broad “omnibus” statement, thus denying him natural justice.

80    I reject that submission. The alleged failure to accord natural justice and failure to act fairly was particularised only by the assertion that the appellant’s reference to the Committee being defunct was not a fair interpretation of his evidence in its entirety. The Federal Magistrate (while observing that the appellant’s submissions were largely unparticularised, unclear and limited) addressed the specific aspect of the complaint by observing, correctly, that the Tribunal had adopted the appellant’s own language. Before me, counsel for the appellant asserted that the Federal Magistrate misinterpreted the appellant’s remarks and took them out of context. In my opinion, however, the totality of the appellant’s relevant evidence in the transcript did not qualify or negate his comment that the Committee was defunct.

81    The appellant did not further explain the allegation that the Tribunal failed to “act in a way that is fair and just” in breach of s 420 of the Act. The Federal Magistrate correctly concluded that the appellant’s allegations were unsubstantiated (at [26]-[27]). His Honour’s more general observation (at [28]) appropriately addressed the generalised allegation.

82    In my view, as the Federal Magistrate found, the Tribunal complied with its statutory obligations under Division 4 Part 7 and no breach of natural justice or procedural fairness was established.

83    In my opinion, ground 3 was not established.

Conclusion

84    In my opinion, the appeal should be dismissed.

Associate:

Dated:    6 February 2013