Federal Court of Australia

DGS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 982

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants are to pay the costs of the first respondent, to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J

1    The appellants are citizens of Turkey. The first and second appellants are wife and husband respectively, and the third appellant is their son. The appellants arrived in Australia on 10 October 2013. The first appellant held a student visa, with the second and third appellants being dependents. That visa expired on 5 August 2014. On 11 May 2015, the delegate refused to grant the appellants a protection visa pursuant to s 65 of the Migration Act 1958 (Cth).

2    On 2 June 2015, the appellants lodged an application for review of the delegate’s decision at the Refugee Review Tribunal (which was later amalgamated to the Administrative Appeals Tribunal (Tribunal)). On 6 February 2017, the Tribunal wrote to the appellants’ representatives, inviting them to attend a hearing on 10 March 2017 and to provide written submissions. On 2 March 2017, the appellants’ representatives provided the Tribunal with submissions and further supporting materials. On 10 March 2017, the appellants appeared before the Tribunal to give evidence and make submissions. The hearing was adjourned part-heard. At the hearing, the appellants provided, inter alia, a letter from the Association for Services to Torture and Trauma Survivors dated 3 March 2017, which indicated that the first appellant had ongoing symptoms of “significant trauma” and required counselling and psychiatric care. On 30 March 2017, the appellants’ representative submitted further documents to the Tribunal. On 31 March 2017, the appellants again appeared before the Tribunal to provide further arguments and evidence. On 7 April 2017, the appellants’ representative submitted further written submissions and a number of medical documents and records. On 3 May 2017, a letter from the first appellant’s psychiatrist, dated 21 April 2017, was provided to the Tribunal.

3    On 16 February 2018, the Tribunal wrote to the appellants’ representatives inviting them to indicate by midday 19 February 2018 whether or not any further submissions would be provided, noting the delay that had occurred in finalising the review. The appellants’ representatives subsequently indicated to the Tribunal that further submissions would be provided. On 8 March 2018, the appellants’ representative submitted further written submissions. On 1 June 2018, the Tribunal affirmed the delegate’s decision not to grant the appellants the protection visa: see 1507487 (Refugee) [2018] AATA 2829. The appellants were notified of the decision on 4 June 2018.

4    On 24 July 2020, the Federal Circuit Court of Australia (FCC) dismissed the appellants’ application for judicial review of the Tribunal decision: DGS18 & Ors v Minister for Immigration & Anor [2020] FCCA 1973. The appellants appeal from those orders dismissing their application for judicial review of the decision of the Tribunal.

5    The sole ground of appeal is that the primary judge erred in failing to accept that the Tribunal had failed to provide procedural fairness to the appellants owing to the delay between the matter being heard and the Tribunal publishing its reasons.

6    For the reasons below, the appeal is dismissed.

The Tribunal

7    The appellants and the first respondent (respondent) adopted the summary of the history of the proceedings, including the reasons of the Tribunal, as set out by the primary judge at [1]-[50].

8    In that context, I rely on without repeating [15]-[50] of that summary, it being accurate as to the reasons of the Tribunal.

Federal Circuit Court

9    Against that background, the primary judge’s consideration of what was Ground B in that Court began at [84]. Ground B was recited by the primary judge at [83] as follows:

The decision of the second respondent was vitiated by a denial of procedural fairness in that the 427 days between the hearing and the publication of reasons impaired [sic] Tribunal’s capacity to assess the applicants’ evidence and evaluate their claims, and permitted unconscious bias.

10    The primary judge briefly summarised the submissions in relation to Ground B at [84]:

Ground B argues that the delay between the Tribunal hearings and the decision was substantive and that this caused the Tribunal’s decision to be unsafe. The applicants submit that the Tribunal relied on “impression” when making its findings as to the applicants’ evidence and made various incorrect references to the applicants’ evidence at the hearing.

11    The primary judge’s consideration of Ground B commenced with a consideration of NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 (NAIS) and the relevant principles therefrom: at [85]-[86].

12    The primary judge noted that the delay in this case is approximately 14 months, which is not as substantial as the delay addressed in NAIS or Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17 (Expectation), relied on by the appellants: at [88].

13    The primary judge addressed the appellants’ submission that the Tribunal did not acknowledge the length of delay in its decision or refer to any aids in its decision, such as accessing the transcript or having listened to the audio recording: at [89].

14    It accepted that the letter sent by the Tribunal on 16 February 2018 which expresses “regret” for the amount of time taken to finalise the matter, and makes clear that the appellants can make any further submissions they wish to make, supports the contention that the Tribunal was conscious of the delay and took steps to ensure that the appellants had a further opportunity to present their case: at [90].

15    The primary judge, acknowledging there was no reference in the reasons to any “aids” used by the Tribunal, described the statement of evidence as comprehensive, and referred to Expectation at [71]: at [91].

16    The primary judge noted that the Tribunal detailed its approach to the assessment of credibility and that the Tribunal noted that it had taken into account the fact that the hearing took place by video-link. The primary judge also acknowledged that the Tribunal had noted that the first appellant was “upset” at various times during the hearing: at [93]

17    The primary judge found that the Tribunal set out in significant and forensic detail the documentary evidence that the appellants had provided and makes numerous references to what was discussed at the hearing. The primary judge referred to paragraphs of the Tribunal’s reasons to illustrate this. His Honour found that “it is apparent from the Tribunal’s decision that it was able to recollect in significant detail (whether by reference to an aid or not) what transpired in the hearing. The Court draws no adverse inference in that regard”: at [92].

18    The primary judge referred to the Tribunal’s approach to credibility: at [93]-[94]. The primary judge addressed the appellant’s submission that the Tribunal relied on “impression”: at [95]-[97]. The primary judge concluded that the Tribunal’s observations were not matters “that turned upon [an] assessment of the first [appellant’s] presentation or demeanour. Rather, they reference objective matters that were distinct from the way in which the first [appellant] gave her evidence”: at [96]. The primary judge concluded that the “concerns and any credibility findings in relation to the claim did not, to any significant extent, rely on the demeanour, sincerity or reliability of the first [appellant] before the Tribunal. Rather, what was of concern were inconsistencies, the lack of detail and the unpersuasive explanations given for certain matters (such as why there was no contemporaneous material) – all of which were matters that could be assessed without issue and despite any delay”: at [97].

19    The primary judge concluded at [98]:

The Court is satisfied that the Tribunal’s delay in producing reasons here did not impair the Tribunal’s ability to assess the applicants’ evidence and evaluate their claims. No flaws in the Tribunal’s reasoning process can be attributed to the delay, however significant. Overall, there is nothing to suggest that the Tribunal’s judgment is “unsafe”. The Tribunal engaged in a detailed, analytical and focussed assessment of the evidence and the claims without impairment.

20    The primary judge addressed the appellants’ submission that there were incorrect statements in the reasons, which reflected that the Tribunal “incorrectly recalled things”: at [99]. His Honour addressed [65] of the Tribunal’s reasons, the paragraph relied on by the appellants in this regard. The primary judge at [99]-[103], reciting the relevant extracts from the transcript, rejected the submission that [65] was incorrect:

[99]    The applicants also draw attention to “incorrect” statements on the part of the Tribunal in relation to the first applicant’s evidence. In effect, they contend that this indicates that the Tribunal “incorrectly recalled things”.

[100]    The applicants refer specifically to the Tribunal’s decision at [65], wherein the Tribunal states:

… The Tribunal discussed with the applicant the reported mob attack on the BDP office in Gaziantep in 2012. Asked if she knew about the events that led to it, the applicant was not sure, but commented that the Turkish state is always trying to provoke the Kurds. The Tribunal put to the applicant that a bomb explosion had killed nine people (Turkish civilians) the previous day and this had prompted protestors to attack the BDP office. It signalled its surprise that she was not familiar with that incident even though, at the time, she was mainly preoccupied with her young child.

[101]    The transcript of the hearing records as follows:

TRIBUNAL: In Gaziantep, in the town or the city, there was a significant event in 2012 with the BDP in the office. What happened?

FIRST APPLICANT: Yeah, the BDP building was ...

Yeah, there was a bombing of the office and also there was an attack at the office, to the office, but don’t know who are responsible for that attack.

TRIBUNAL: And why? The attack followed on from something that happened. Do you know why the BDP office was bombed?

FIRST APPLICANT: The state ran ... there is such an organization and such activities. State provokes people with some things and when the people are provoked or organized by state, they attack the organizations.

TRIBUNAL: And there was a bombing of the ... Do you know when the bombing of the office took place?

FIRST APPLICANT: Sorry when?

TRIBUNAL: Do you know when the bombing of the office took place?

FIRST APPLICANT: It could be 2012 but I don’t know. I don’t remember exactly.

TRIBUNAL: Okay. There was an attack on the BDP office in May of 2012. It was triggered by a particular event and I’m just wondering if you ... you’d probably heard from your BDP colleagues what that incident was.

FIRST APPLICANT: I didn’t understand. Can you repeat?

TRIBUNAL: There was an attack. People attacked the BDP office in May, 2012 and there was a very specific reason why people attacked the BDP office. Do you know what that was?

FIRST APPLICANT: I’m thinking. I’m trying to remember.

TRIBUNAL: That’s fine. The truth of it was, there had been a bombing in Gaziantep. Does that ring a bell?

No? That’s fine. I just wanted to say the reports that I’ve seen, and it was very widely reported, was that the BDP office was attacked because they’d been a bombing in Gaziantep where nine people had been killed and after that bombing, a lot of people then turned on both the PKK and the BDP blaming or somehow retaliating against their office. But that was a very specific incident, right.

FIRST APPLICANT: Now I remember there was this public transport bus called [inaudible 01:44:48] it’s a private public bus. That’s why.

But there were not only one incident of attacking the office. There had been previous attacks all the time. They were throwing stones.

TRIBUNAL: Yeah, no, no, I’m aware of that, but this one was much more serious and that’s why I was asking you if you as a BDP member knew about it. That’s why I was asking

[102]    The applicants say that [65] (specifically, where the Tribunal states that the applicant was “not sure” of particular events) is incompatible with what occurred during the hearing (as transcribed above).

[103]    The Court disagrees. The Tribunal’s statement at [65] is not incompatible with what the first applicant stated at the hearing. The Tribunal (at [65]) is referring to the fact that the first applicant was not able to identify a “specific incident” which was “widely reported” as being the reason for the mob attack and the bombing at the BDP office (i.e., it occurred because of a bombing in Gaziantep that killed 9 Turkish civilians). The first applicant’s responses to the Tribunal’s questions were generic and refer only to a bomb at the BDP office and an attack generally (i.e., she does not refer to the reason behind the attack on the BDP office which was what the Tribunal’s questions directly asked for). It is only when the Tribunal discloses the reason for the attack (i.e., puts to the first applicant the information about the bombing that killed 9 Turkish civilians) that she remembers. In these circumstances, it was open to the Tribunal to state that the first applicant was “not sure”.

21    The primary judge at [104] then referred to NAIS at [87] per Kirby J (citations omitted):

In addition to these considerations, there is another factor that is repeatedly mentioned in authority concerned with judicial delay. It is equally applicable to decision-making by members of quasi-judicial tribunals, such as the Tribunal. Extensive delay may sometimes tempt (or appear to tempt) the decision-maker to take the path of easy resolution. In Expectation Pty Ltd v PRD Realty Pty Ltd, the Full Court of the Federal Court, in an appeal against delayed judicial reasons, explained the problem in terms of the increasing pressure which prolonged delay occasions to publish a decision. That pressure will bear upon the decision-maker as time passes, leading to the possibility that: “[t]hat pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction.” These comments are addressed to a human propensity. They are not confined by the legal character of the body in which the propensity may be manifested.

22    The primary judge noted that the appellants appeared to submit at the hearing that there was some evidence that the Tribunal member’s workload at the relevant time was “extreme” and that this supports the view that the Tribunal may have taken the “easier option” when considering the evidence: at [105]. His Honour found that there was nothing before the Court relevant to the Tribunal member who decided the review and nothing that indicated that the member’s “workload” affected their decision: at [105]. His Honour concluded at [106], in this regard:

While the Court agrees that the workload of Tribunal members is often unacceptable and that Tribunal members work in difficult and often stressful circumstances, the Court does not agree that these issues had any effect of the Tribunal’s decision here. The Tribunal’s reasons do not demonstrate that the Tribunal here took the “easier option”. The reasons are of an extraordinarily high quality. Indeed, others would do well to emulate the approach taken by the Tribunal in this regard. The reasons provided are extensive, detailed and forensic. There is nothing in the Tribunal’s decision which can be seen as evidence of it “skirting more difficult issues and driving toward simple conclusions” or which demonstrates a “lack of clarity”: Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13 at [113].

Submissions

23    The appellants characterised the delay in this case as one of over 10,000 hours. Relying on NAIS, the appellants contended that where a decision deciding the fate of asylum-seekers turns on credibility, lengthy delay of itself may invite an inference that the Tribunal’s capacity to assess the appellants’ evidence was impaired, unless the reasons themselves disclose some countervailing considerations (emphasis in the submissions). The Tribunal did not “acknowledge the delay in its reasons” and was silent about accessing a transcript or recordings or even notes. The appellants submitted that “[f]atally, the Tribunal’s reasons are silent on delay and therefore silent on countervailing considerations”.

24    The appellants also referred to Expectation, a case which involved judicial delay of more than 21 months. In Expectation, the Full Court at [74], citing Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [31], held that the effect of a long delay is not simply about fading memory, but a “a long delay can give rise to disquiet, not only because of the lengthy period of uncertainty with which the litigants are required to live pending the judgment, but also because of the suspicion, on the part of the losing party, that the task may have become too much for the trial Judge and that he or she had been unable, in the end, to grapple adequately with the issues”. The appellants submitted that Expectation also propounded the proposition that it is incumbent upon a decision maker, in a case of serious delay, to put beyond question in its reasons that the delay has not operated unfairly against a litigant. Further, they submitted that where the Tribunal hears many other similar cases, there is a risk of confusing cases with similar facts, citing NAIS at [92] per Kirby J. In cases of asylum-seekers seeking Australia’s protection, delay can also be particularly destructive, referring to NAIS at [100] per Kirby J.

25    The appellants also submitted at the hearing that in this case there was the “perfect storm”; the evidence was given by video, the children were in the next room being taken care of and the evidence was given through interpreters. As noted above, the Tribunal recorded that the first appellant was visibly upset: at [29] and [35]. It was submitted that all “the cautionary statements about credit findings are present”.

26    The appellants submitted that the primary judge erred in relying on the “letter of regret” sent to the parties on 16 February 2018, arguing that it is irrelevant. The appellants submitted that it was a private communication, and that what is necessary is for the acknowledgment of the delay to be contained in the Tribunal’s published reasons. Citing Expectation at [71], the appellants submitted that the Tribunal, exercising quasi-judicial functions, must “make manifest, to the parties and public, that the delay has not affected the decision”. They submitted, relying on Expectation, that in cases of delay a “more comprehensive statement of the relevant evidence” is necessary, but that is not in itself a sufficient answer. It was submitted that the primary judge’s conclusion that there was nothing in the reasons that reflected the Tribunal had simply taken the easy option in resolving the case is incorrect, as the reasons do not need to demonstrate that the Tribunal took the easy option. Rather, the reasons must foreclose the inference. It was submitted that the conclusion of the primary judge that the Tribunal’s findings did not turn on an assessment of the first appellant’s presentation or demeanour was incorrect, as the issue is whether after the delay the Tribunal was able to recall everything. It was submitted that the Tribunal relied on matters of impression, referring, inter alia, to the Tribunal’s remarks at [30] that the appellants’ claims were often “vague, unsubstantiated and lacking context, leading to the strong impression that the [first appellant (and the first appellant’s husband)] was sometimes not recalling personal experiences at all”. A number of other examples from the Tribunal’s reasons are provided in the appellants’ submissions, in particular, paragraphs [48], [50], [61], [69], [76] and [80]. The appellants also submitted that in this case the Tribunal’s recollection was unreliable and identified two matters (at [65] and [11] of the Tribunal’s reasons) which they say reflect such an error.

27    The respondent submitted that delay in and of itself is not sufficient to establish jurisdictional error, but that delay may lead to a relevant error being committed. Whilst the categories of error that may occur as a result of delay are not closed, the authorities identify two circumstances where delay may occasion or result in identification of relevant error:

(1)    where a decision maker makes credibility findings arising from the demeanour or appearance of a witness in giving evidence, referring to NAIS; and

(2)    where a decision maker’s reasons do not specifically address a particular piece of evidence or issue in dispute, the decision maker may be denied the benefit of an assumption that it was considered but not referred to such that it may be inferred the delay resulted in the decision maker failing to have regard to, or to determine, such matters, referring to Expectation.

28    It submitted that in determining whether an error arises, the relevant question is whether the decision maker’s reasons demonstrate that the delay did not affect the decision, referring to Expectation at [80]-[81]. What must be established is that there was a material error of unfairness in the process followed by the decision maker that renders the decision unsafe. The requirement that the reasons must demonstrate the delay did not affect the decision does not require a particular formula or expression to be used by a decision maker in giving their reasons. Whether or not the reasons are sufficient to demonstrate that is a matter of substance not form.

29    The respondent submitted that the primary judge’s reasons set out at [83]-[107] are comprehensive, identify the correct legal principles and reveal that the primary judge undertook the task which was required of him. They are not demonstrative of error.

30    The respondent rejected the appellants’ characterisation of the Tribunal’s letter of 16 February 2018 as a “private letter expressing regret”. It submitted it was neither irrelevant nor erroneous for the primary judge to consider the evidence of the letter. The respondent submitted that in so far as the appellants contend that the Tribunal made findings of credit based upon its observations or impressions of the witnesses’ demeanour or presentation and that was apt to demonstrate or establish the error complained of, that is not established as a matter of fact. In so far as the appellants contend the decision was unsafe because its assessment of the evidence as a whole (whether documentary, oral etc) cannot be said to be complete such that the delay may have led the Tribunal to consider the matter on something other than the complete body of evidence, that too is not established. The Tribunal’s findings were comprehensive and forensic, and its reasons as to why the Tribunal did not accept certain claims made by the first appellant were detailed and cogent, referenced to the evidence. The respondent submitted no finding based on credibility was determined on the basis of the appellants’ demeanour or presentation as a witness and referred to and relied on the primary judge’s reasons at [92]–[98]. The respondent also addressed the alleged errors in the Tribunal’s reasons and submitted no such error is established.

31    The respondent submitted that the appellants do not make any particular contention that the Tribunal did, in fact, overlook or fail to refer to available evidence or determine a relevant matter. Rather, with two exceptions, the appellants’ submission rises no higher than submitting that the Tribunal did not accept the appellants’ claims or evidence in particular respects. Preferring or rejecting evidence in circumstances where there has been delay is not, of itself, determinative of error.

32    It was submitted that in circumstances where the Tribunal’s reasons were detailed as to the relevant evidence and did not merely rely on generalised statements of having considered that evidence and provided an explanation by reference to the evidence (both documentary and oral) as to why it had formed the views that it did, there is nothing to suggest that the Tribunal failed to refer to evidence (or that it assessed the appellants’ credibility by reference to demeanour or presentation as a witness). Therefore, no unfairness in the process followed by the Tribunal is established.

33    The appellants made four submissions in reply. First, that the respondent’s reliance on the Tribunal’s reasons being detailed is misplaced, noting that the reasons of the Tribunal in NAIS were detailed and that was insufficient. Second, that it is no answer to say that the Tribunal “provided an explanation by reference to the evidence (both documentary and oral) as to why it had formed the views it did”. Rather, relying on NAIS, significant delay in making an administrative decision that turns on credibility, without any explanation in the decision maker’s reasons as to how they confronted the delay, creates an inference that the procedure is unfair and it is for the respondent to obviate that inference. Third, the appellants submitted in any event, if they are correct that there is an inference that the procedure is unfair, it does not assist for the respondent to point to matters which are absent from the reasons. The respondent must point to matters in the Tribunal’s reasons to rebut that inference. Fourth, the appellants took issue with the respondent’s submission that the Tribunal’s findings did not involve demeanour. The appellants argued that the principle in NAIS is not limited to demeanour. Whether or not the Tribunal’s reasons involved findings of the appellants’ presentation is a question of fact, and it is clear from the appellants’ submissions that the Tribunal made such findings. Regardless of whether the Tribunal made findings in relation to demeanour or presentation, the inference of unfairness arises to be rebutted by the respondent.

Consideration

34    The appellants’ submission was based on the contention that there was a lengthy delay between the hearing in the Tribunal and the publishing of its reasons in circumstances where the decision turned largely on credit. The delay in this case was fourteen months.

35    In that context, although the appellants accepted that the circumstances in which delay of itself will vitiate decisions are rare and that the delay must be causative of some error, the appellants submitted that the inference or presumption is that the decision is flawed. They submitted that the Tribunal’s reasons are silent on the delay and therefore there are no countervailing considerations to rebut an inference or to otherwise establish that the delay did not cause an error. That is, it is incumbent on the decision maker to displace that inference. They submitted that detailed reasons cannot display that inference.

36    As explained above, the submission is based on NAIS where the High Court considered the effect of an inordinate delay in delivering a decision on the decision making process. The delay was four and a half years. There, the application for review was made to the Tribunal on 5 June 1997. There had been two oral hearings, which occurred on 6 May 1998 and 19 December 2001. The Tribunal delivered its decision on 14 January 2003.

37    In NAIS, Gleeson CJ at [5] described the relevance of delay as follows (citations omitted):

Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare. Of course, statutes of limitation impose a legislative direction that certain delays will bar proceedings; and analogous consequences may flow from the application of equitable principles. There is, however, nothing in the Act that prescribes a time limit for decisions of the Tribunal, and this Court has no power to determine some such limit. A court may have power to relieve against oppressive conduct of a complainant, or a prosecutor, and delay may be a factor in the oppression. In such circumstances, the ground for relief is the oppression, not the delay. A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself. Where delay gives rise to a ground of supervisory or appellate intervention, the remedy must be tailored to the circumstances and justice of the case. In adversarial litigation, for example, neither party may be at fault, and it may be unnecessary and unjust to visit the successful party with all the consequences that flow from having to start again. Remedies available where delay has caused problems may be discretionary. (In the present case, counsel for the first respondent disclaimed any reliance upon a discretionary argument.) In some cases, mandamus may be an available remedy for dilatory behaviour, and failure to seek mandamus could constitute a discretionary reason to deny later relief.

38    Gleeson CJ stated that in NAIS, the focus of the Federal Court decision was upon alleged jurisdictional error, specifically in the form of denial of procedural fairness, in administrative decision-making: at [6]. In that context, Gleeson CJ observed at [7] (citations omitted):

In Blencoe v British Columbia (Human Rights Commission), Bastarache J, speaking for the majority, said it was "accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied". There may be some circumstances in which delay has had a direct and demonstrable effect on the outcome of administrative proceedings. Bastarache J gave examples. On the other hand (and this was the point of departure between Hill J and Finkelstein J in the Full Court of the Federal Court), there may be cases where it is difficult, or even impossible, to know the consequences of delay…In the present context, which is not one of appellate scrutiny, but of judicial review of an administrative decision for jurisdictional error, the question is one of fairness of procedure. What is said to be unfair is that the Tribunal made demeanour-based findings against the appellants in circumstances where four and a half years elapsed between the observation of the demeanour and the making of the findings…

39    When inordinate delay is established, close analysis of the circumstances of the case and the effect of the delay is required: NAIS at [82] and [85]-[88] per Kirby J. At [88] Kirby J observed (citations omitted):

…Where the decision-maker reaches a decision in reliance upon considerations of the credibility of parties or witnesses, significant delay undermines the acceptability of such assessments. Where there is lengthy delay in the provision of a reasoned decision, whether by a judge or a tribunal, it may not be enough for the decision-maker simply to announce conclusions on credibility. It may then be necessary to say why the evidence of a witness is believed or disbelieved, in effect to demonstrate that any countervailing evidence has not been forgotten or overlooked. That it has not been would, in a timely provision of the decision, more readily be assumed.

40    Kirby J concluded at [102] (citations omitted):

The result of this analysis is that prima facie the delay that happened before the Tribunal, in the provision of its reasoned decision in this case, was materially excessive. On the face of things, it deprived the appellants of a "decision" of the type required by the Act. It rendered suspect the reasons, findings and references to the evidence contained in the Tribunal's "decision". The "decision" was not reached by a process that was procedurally fair and just to the appellants. By reason of the delay, the "decision" was presumptively flawed by jurisdictional error.

41    Kirby J rejected the hypothesis of the Minister’s case that the Tribunal could remember, assess and evaluate the principal evidence given by the appellants at the first hearing in May 1998 for the credibility findings that it made four years and seven months later: at [103]. At [105]-[106] Kirby J said (citations omitted):

[105]    As observed by Callinan and Heydon JJ, one way in which a decision-maker can breach this requirement is if the decision-maker is infected with bias. This is because bias prevents the decision-maker from fairly considering the case before it. By analogy, the delay in this case impaired the Tribunal's capacity to assess the case presented by the appellants, and in particular the Tribunal's capacity to make a proper assessment of the appellants' credibility. As such the requirements of procedural fairness applicable to the Tribunal were not fulfilled.

[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….

42    Callinan and Heydon JJ observed at [161]:

Sometimes the pressures of work on administrators and courts can be very great. The sufficiency of the resources and the number of people to do the work depend upon the funds which governments are prepared to expend on them. Not all people have the same capacity for efficient and expeditious work, including decisiveness itself, as others. Care accordingly needs to be taken before condemning what may, in some cases, at first sight appear to be cases of inordinate delay. Nonetheless, nothing, apart from bias or unfairness, is more likely to bring public administration and the law into disrepute than inexplicable prolonged delay in the disposition of matters. Delay of that kind immediately and inevitably raises questions. How earnest was the consideration given to the matter? Did the maker of the decision truly apply his or her mind to it? Did he or she find it too hard? Was the decision-maker distracted? Was the decision in the end made out of desperation, or a realization that it had at last to be given, regardless of its correctness or otherwise? All of these questions can be asked but not satisfactorily answered in this case. That they cannot does not mean that the decision of the Tribunal can on that account alone be set aside. But it does mean that a reviewing court should scrutinize the decision, if not with a disposition against it, at the very least, with scepticism, especially if, as the decision in this case does, it depends in any way at all upon the assessment of competing claims of fact and credit, and impressions based on demeanour.

43    Callinan and Heydon JJ concluded, inter alia, at [168]-[170]:

[168]    In our opinion it is not possible to say that the Tribunal's decision, depending so much as it did, on the credibility of the appellants who gave oral evidence, was made fairly. Their application for review was lodged on 5 June 1997. The decision was delivered more than five and a half years later, on 14 January 2003, and after two sessions of intervening oral evidence separated by a period of about three and a half years. This was not a matter in which the Tribunal merely had to weigh up oral evidence against written evidence. It had to weigh up oral evidence given on one occasion with oral evidence given three and a half years later, as well as the further written material that had come to hand. That is not an exercise that can satisfactorily and fairly be carried out over widely separated serial proceedings.

[169]    The outcome of the appellants' application for review of the decision not to grant them protection visas did depend in part at least on demeanour and credibility. The appellants undertook the task of persuading the Tribunal that they did hold well-founded fears of persecution. That in respect of some of the abuses they claimed to have suffered, they admitted fabrication, or were unable to deny collusion, provides no answer to their entitlement to have their other claims and their applications assessed in a comprehensive, unattenuated and not excessively delayed process. Unlike the majority in the Full Court of the Federal Court we are unable to regard the possibility, indeed, even the likelihood if that be the case, of the consultation of contemporaneous notes and tape recordings of the proceedings, as a satisfactory substitute for the observation and formation of impressions of persons in the flesh, and the timely personal commitment of these to paper as part of the process of making a decision in the light of the materials supplied to the Tribunal and all the arguments advanced to it.

[170]    It is right, as Finkelstein J in dissent said in effect, that what appears to be a summary only, without analysis, of the transcript erodes confidence in the findings of fact of the Tribunal. Demeanour was clearly of some relevance here. One example suffices to make the point. The Tribunal purported to be influenced by the daughter's failure to display signs of trauma or concern while recounting the threats she said were made to her on her way to church, and her parents' reaction to her recounting of the incident. This is a matter of some subtlety. To delay committing to paper a recollection of this evidence until a long time afterwards runs a real risk of failing to recapture and give effect to that subtlety.

44    NAIS, properly read, does not have the proscriptive effect, and consequences in this case, as contended for by the appellants. Rather, as apparent from NAIS, whether a delay is one which creates a real and substantial risk that the Tribunal’s capacity to assess an appellant’s evidence was impaired necessarily involves an examination and consideration of the individual circumstances of each case. As stated by the Full Court in Frugtniet v Tax Practitioners Board [2019] FCAFC 193 at [39] per Perry, Moshinsky and Lee JJ (emphasis added), “the question is ultimately whether in all of the circumstances the procedure adopted by the decision-maker was fair”.

45    As Markovic J observed in BIX15 v Minister for Immigration and Border Protection [2017] FCA 1116 at [43] (BIX15):

Not every delay will cause unfairness to an applicant resulting in a finding of jurisdictional error. The delay must, to adopt the words of Gleeson CJ in NAIS, be one which creates a real and substantial risk that the Tribunal’s capacity to assess an appellant’s evidence was impaired. In the present case the delay between the time of the first hearing and the delivery of the Tribunal’s decision was around 22 months. That falls well short of the period considered by the High Court in NAIS of over four years. However, it is in my opinion an unacceptable or, as described by the primary judge, an inordinate delay.

46    Markovic J’s observations were cited with approval by Griffiths J in CQV16 v Minister for Immigration and Border Protection [2019] FCA 1098 (CQV16) at [76]. For examples of the application of the relevant principles, see: CQV16; SZQUY v Minister for Immigration and Citizenship [2012] FCA 856; and SZKJV v Minister for Immigration and Citizenship [2011] FCA 80, where the delay in delivering the Tribunal’s reasons were twenty-one months, one year and eight months and eight months respectively.

47    As will be readily apparent, there are factual distinctions between NAIS and this case. Two are uncontroversial.

48    First, the delay in NAIS was four and a half years, which is vastly longer and more egregious than in this case, which involved a fourteen month delay. The delay in NAIS was described as “inordinate”: at [3] per Gleeson CJ. It was described as a “very exceptional case”: at [174] per Callinan and Heydon JJ, and see [115] per Kirby J. Given the concerns which arise from a delay as explained in NAIS, the length of the delay is necessarily a relevant consideration. This must also necessarily affect the context in which the conclusions were expressed in NAIS. The matter is not to be approached, as the appellants did, by applying various statements from NAIS, absent a consideration of the circumstances particular to this case.

49    Second, as is apparent from the passage recited above at [43], in NAIS the Tribunal was in a situation of comparing and weighing up oral evidence given on different occasions (which were a considerable time apart, being three and a half years, with the last occasion being held over a year before the decision was delivered), which does not arise in this case. This existence of two hearings was also part of the factual circumstances in BIX15.

50    A third matter of distinction relates to the appellants’ assertion that this case turned largely on credit findings which involved demeanour based assessments. The primary judge rejected the submission. A proper reading of the Tribunal’s reasons reflect he correctly did so. The Tribunal’s references, inter alia, to the first appellant struggling to give specific examples of matters the subject of the claims, and the Tribunal’s remarks that the evidence was vague or unpersuasive, unfocussed or repetitive, when read in the context of the reasons, are not based on an assessment of the first appellant’s presentation or demeanour. As the primary judge concluded at [96], “[f]or example, the use of ‘impression’ by the Tribunal (at [30] and [61]) amounts to no more than the Tribunal expressing its own opinion. It is not a reflection of the Tribunal’s assessment of the [first appellant’s] presentation of the evidence. The fact that the evidence was vague, unsubstantiated and lacking in context (i.e., deficient in detail) led to the impression – not the way in which the first [appellant] presented her evidence”. The Tribunal’s reasons detail the bases on which it did not accept the various claims made. The Tribunal gave detailed reasons for the adverse credibility findings it made on each of these various aspects of those claims. The Tribunal’s findings were not simply “bland assertions”: BIX15 at [47].

51    It is necessary to refer to some of the specific submissions advanced by the appellants.

52    The appellants relied on the fact that the Tribunal did not refer to the delay, for example, by reference to having listened to the audio of the hearing or accessing the transcript of it, and gives no explanation for the delay. Although that may be accepted, the delay is patent on the face of the reasons, as at the outset the Tribunal sets out the relevant dates of the hearing. Moreover, there was evidence that the Tribunal was aware of the delay as it had written to the parties inviting further submissions. No error has been established in the primary judge referring to that correspondence as reflective of the Tribunal’s awareness of the delay and its concern to take steps to provide the appellants with a further opportunity to present their case. It can be inferred that the Tribunal was conscious of the effect of the delay. In any event, contrary to the appellants’ contention, NAIS does not prescribe if there is any delay that there must be a public acknowledgement of any delay in the manner contended. That any delay has not affected the decision can be manifest to the parties and the general public in other ways (for example, demonstrated by the reasons for the decision: see Expectation at [71]-[73]).

53    The appellants also submitted, in effect, that if the Tribunal in its reasons does not expressly refer to the delay and what steps it took, for example, listening to the audio of the hearing or reading the transcript, then the Tribunal’s reasons (regardless of whether they are detailed) are irrelevant to the issue to be determined. This was said to be based on an observation by Callinan and Heydon JJ in NAIS when describing the Tribunal’s reasons that “the Tribunal gave an account in detail of what the appellants had said and claimed at the first oral hearing”: at [148] (emphasis in submissions). It is correct, as the appellants submitted, that the reasons in NAIS were described as detailed, and nonetheless, that was not sufficient to displace any suggestion in that case that the decision maker had fallen into error: see, for example, the reasons of Callinan and Heydon JJ at [168]-[170] recited above at [43]. As is apparent from their Honour’s reasons, the circumstances of the individual case were considered. However, it cannot be extrapolated from that, as the appellant has suggested, that whenever there is an argument as to delay and the effect thereof (regardless of the length of the delay and circumstances of the case), that the Tribunal’s reasons are necessarily irrelevant to that consideration. It was not suggested in NAIS that the content of the Tribunal’s reasons are not relevant to the issues that arise in relation to considering a ground of appeal based on delay, if the reasons do not explain or address the delay. Nor is it suggested in NAIS that there is only one way in which the countervailing considerations arise. As Kirby J said at [88], recited above at [39], the delay may mean that it “may then be necessary to say why the evidence of a witness is believed or disbelieved, in effect to demonstrate that any countervailing evidence has not been forgotten or overlooked. That it has not been would, in a timely provision of the decision, more readily be assumed”: and see Expectation at [71]-[73].

54    The appellants also submitted that there is “simply no contrary evidence put on” by the respondent in this case, such as evidence that “the particular tribunal member was a part-time member and only did five decisions that year, for example,” to rebut the presumption that the decision is flawed. In so far as the appellants’ submission is that as there is an issue as to a delay, in the absence of an explanation of the delay in the reasons, the respondent needed to call evidence to discharge an evidentiary onus, the submission cannot be accepted. It is not borne out by a reading of NAIS. The submission appears to be based on the observation of Kirby J in NAIS at [102], recited above at [40], that the decision is “presumptively flawed” because of the delay. From that the appellants submitted “the evidentiary onus shifts and there’s simply no contrary evidence put on” by the respondent. Kirby J’s statement must be read in its context, which included that NAIS was described as an exceptional case (as noted above at [47]). The appellants also appear to rely on the observations of Gleeson CJ at [7], recited above at [38]. Again, that must be read in context. For example, Gleeson CJ at [10] concluded that (emphasis added) “[t]he delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.” As previously observed, the length of any delay is necessarily a relevant consideration in determining whether it is causative of error.

55    The fourteen month delay in this case, while very unfortunate given the nature of the hearing, is different from a delay of four and a half years in the circumstances of NAIS, with the consequences that would necessarily flow from such a delay. The issue of whether the delay in this case created a real and substantial risk that the Tribunal’s capacity to assess the appellants’ evidence was impaired necessarily involves an examination and consideration of the individual circumstances of this case: cf BIX15 and CQV16. The issue is whether, in all the circumstances, the procedure adopted by the Tribunal was fair.

56    The appellants have not established any error in the primary judge’s reasoning. No error has been established in the primary judge considering the reasons of the Tribunal in assessing the ground of appeal before it.

57    As the primary judge observed, the Tribunal explained its approach to credibility: at [28]-[30]. Although the appellants described that there was a “perfect storm” and the need for caution as to credibility, it is unclear how that was said to feed into the submission as to delay. The description given by the appellants, including as to the circumstances in which the first appellant gave evidence, were taken into account by the Tribunal and allowance made for that. The Tribunal was satisfied that the appellants had “ample opportunity to present their claims and evidence”: at [29].

58    On a proper reading of the Tribunal’s reasons, the primary judge’s description that they are “extensive, detailed and forensic” at [106], is accurate. As explained by the primary judge, the Tribunal set out in significant and forensic detail the documentary evidence that the appellants had provided and made numerous references to what was discussed at the hearing. The primary judge concluded that “it is apparent from the Tribunal’s decision that it was able to recollect in significant detail (whether by reference to an aid or not) what transpired in the hearing”: at [92].

59    A consideration of the Tribunal’s reasons reflects that it refers to the oral evidence, which was summarised in respect to relevant topics. This included reference to the topics in which the Tribunal asked the appellant questions and the responses given. In some instances, the Tribunal described why it asked particular questions, for example, as a result of it being puzzled by an answer which had been given: see, for example, [55], [61] and [78]. On occasions the reasons refer to certain words used that are quoted from the oral hearing: see, for example, [49] and [101].

60    As explained above, the Tribunal’s reasons detail the bases on which it did not accept the various claims made and on which it made adverse credibility findings.

61    The appellant’s reliance on two passages in the Tribunal’s reasons, at [65] and [11], to demonstrate error in recollection by the Tribunal, is not borne out on a proper reading of the reasons read as a whole. The primary judge at [100]-[103] (set out above at [20]), having recited the evidence, concluded that the Tribunal’s statement at [65] is not incompatible with what the first appellant stated at the hearing, and explained the reason why that was so. The appellants have not established any error with that reasoning.

62    The appellants’ submission that [11] of the Tribunal’s reasons “implicitly” impugned the appellant’s credibility is not established. As the respondent submitted, there is no adverse finding in [11] or elsewhere in the decision (by inference or otherwise) against the first appellant arising out of her evidence on this topic (that she lived in Sahinbey or that the town had around 1,000 inhabitants).

63    As to the appellants’ submission about the workload of the Tribunal, as explained by the primary judge, and noted above at [22], there is nothing in the Tribunal’s reasons to support any assertion that it was an issue.

64    There is no error established in the primary judge’s reasons. A consideration of the reasons in this case reflect that there is no basis to justify a conclusion the procedures followed in the Tribunal resulted in any unfairness to the appellants. Rather, a consideration of the relevant principles in the circumstances of this case reflect that there was no jurisdictional error of the kind identified in NAIS as a result of the fourteen month delay in the Tribunal delivering its decision.

Conclusion

65    The ground of appeal is not established. Accordingly, the appeal is dismissed with costs.

Associate:

Dated:    24 August 2021