BIX15 v Minister For Immigration and Border Protection

Federal Court of Australia|2017-09-22|Before: Mr P, Markovic J

The appeal be dismissed.
The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 The appellant appeals from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 14 March 2017 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (as it was then known, now the Administrative Appeals Tribunal (Tribunal)) dated 27 June 2015: BIX15 v Minister for Immigration and Border Protection [2017] FCCA 376 (BIX15). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a protection visa. 2 As identified at [3] of BIX15, at issue before the primary judge was the effect of the Tribunal's delay of 22 months from its first hearing of the application before it to the time of making its decision. That was also the sole ground of appeal relied on before me.

the Tribunal's decision 13 The Tribunal was satisfied that the appellant was a Tamil born in Batticaloa district, Eastern Province, Sri Lanka; accepted that the appellant's religion was Hindu; accepted that the appellant travelled to Qatar in 2007 and worked there until returning in June 2009; and accepted that he lived in a village in Batticaloa district from the time of his birth until his departure for Australia in June 2012, apart from the period when he lived in Qatar and periods working in Trincomalee and Colombo. However, apart from those claims, the Tribunal did not accept the appellant's account of what happened to him in Sri Lanka and the reasons he gave for departing Sri Lanka in June 2012. The Tribunal found at [185] of its decision record that the appellant had "fabricated his claims for protection" and was "not a credible witness". 14 At [186] of its decision record the Tribunal said: Whilst the Tribunal is of the view that although applicants should be given the benefit of doubt in relation to recalling details of events that have taken place, the Tribunal is not required to uncritically accept an applicant's claims. The Tribunal has considered the applicant's claims that he was not in a good state of mind; was quite nervous; he made mistakes in not providing information at an earlier opportunity; mistakes were made in recording his evidence; and he had given evidence which may not have been recorded. In this case, the Tribunal was not persuaded by the applicant's evidence, details of which are set out below. The Tribunal found the applicant's evidence in the hearings to be vague, inconsistent, evasive and he tailored his responses to the questions asked. The Tribunal finds that the applicant's vague, inconsistent evidence, evasive evidence, failure to provide significant claims at an earlier opportunity and development of his claims over the course of the application, were not because of the explanations offered by the applicant, but, rather, because the applicant has fabricated his claims for protection, reasons for leaving Sri Lanka and fears of returning. This also leads the Tribunal to find that the applicant is not a witness of truth. 15 The Tribunal then considered the appellant's evidence and each of his claims in detail and rejected each one. Having considered the appellant's claims singularly and cumulatively, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a convention reason if he returned to Sri Lanka now or in the reasonably foreseeable future. Nor did the Tribunal accept that the appellant satisfied the complementary protection criterion in s 36(2)(aa) of the Act. The Tribunal accordingly affirmed the delegate's decision. 16 It is relevant to the ground of appeal raised by the appellant to note the Tribunal's description of the hearings that took place before it. At [92]-[145] the Tribunal set out the evidence given by the appellant at the first hearing. At [146]-[175] the Tribunal set out the evidence given by the appellant at the second hearing. At [147] the Tribunal explained the purpose of the second hearing, noting that it invited the appellant to a further hearing "because of the delay since the last hearing and also because there had been new information in a report from the Department of Foreign Affairs and Trade to which the Tribunal [had to] have regard".

the Federal Circuit Court proceeding 17 The appellant sought judicial review of the Tribunal's decision. In an amended application filed in the Federal Circuit Court the appellant raised two grounds of review. However, at the hearing, the appellant, who was legally represented, withdrew reliance on ground two: see BIX15 at [11]. 18 Ground one of the amended application provided that: The AAT's decision is infected with jurisdictional error caused due to substantial delay between the Tribunal's hearing and Tribunal's decision. The jurisdictional error alleged involved a "denial of procedural fairness" and "a substantial risk that the AAT's capacity to assess the applicant's case was impaired" (emphasis in original) 19 There were 18 particulars to ground one, some of which provided further sub-particulars. After noting the way in which ground one was expressed, describing it as "dense, repetitive and convoluted", the primary judge observed at [13] that, ultimately, the solicitor for the appellant submitted that the appellant's complaints were contained in [24] of his written submissions, which was in the following terms: It is further submitted that the delay of over 22 months in the AAT reaching its decision is unreasonable, as no reason for the delay had been provided, and the delay/lapse of time in reaching a decision, has created a real and substantial risk that the AAT's own capacity to assess the applicant's case has been impaired for the following reasons, a. At [CB 271, Paragraph 208] the AAT states of having accepted a claim which was never made by the applicant. The applicant did not claim of having "previously travelled to India during the period of the civil war". b. The letter dated 25 February 2015 was addressed to Mr Pushparajah [CB 224] who clearly is not the applicant. c. While other DFAT publications were provided to the applicant for comment, the DFAT report of 3rd October 2014 was not provided to the applicant for comment. d. As particularised in Ground 1(r)(iv) The AAT did not write to the applicant about "many of the issues" which were discussed at the hearing [CB 254, 138 and 139] which the Tribunal said it would write to the applicant about. e. As particularised in Ground 2 (e) and (f) below the AAT erred in its reasoning as it did not consider contents in the applicant's statutory declaration dated 17 July 2013. 20 The primary judge relevantly made the following findings in relation to the ground of review: (1) the delay of 22 months between the first hearing and the decision was inordinate. That delay, coupled with the failure of the Tribunal to explain the delay, to recognise any possible effect of the delay or to seek to explain how any possible problem resulting from the delay might have been taken into account or overcome, and together with the Tribunal's adverse credibility findings, which involved some element of demeanour, created "a real and substantial risk that the Tribunal's capacity to assess the [appellant's] evidence and to evaluate his claims was impaired such that he may have been denied a fair hearing". The appellant's "demeanour and credibility" were "relevant to the Tribunal's decision given the adjectives it used to describe the [appellant's] evidence": BIX15 at [46]; (2) however, a fair reading of the Tribunal's decision made clear that "at the Second Hearing the Tribunal re-explored with the [appellant] all his claims and discussed its concerns about the [appellant's] evidence with him". The Tribunal summarised in detail what occurred at the first hearing and the appellant did not provide any evidence to suggest that the summaries in the Tribunal's decision were not accurate: BIX15 at [47]; and (3) thus, the primary judge did not draw the inference that the 22 month delay between the first hearing and the Tribunal's decision denied the appellant procedural fairness. During the second hearing all of the appellant's claims were re-explored and the Tribunal's concerns discussed. The second hearing had the effect of addressing the procedural unfairness that may otherwise have been found to exist in the absence of the opportunity given to the appellant at that hearing to fully explore his claims again: BIX15 at [48].

the appeal 21 While the appellant's notice of appeal sets out three grounds of appeal, the appellant only presses ground two, which provides: Though the FCC judge was of the view that the 22 month delay was "inordinate" and though the FCC judge was of the view that the delay "created a real and substantial risk that the Tribunal's capacity to assess the applicant's evidence and to evaluate his claims was impaired such that he may have been denied a fair hearing" the FCC judge failed to accept that the Tribunal's decision was tainted with jurisdictional error. a. At [46] of the FCC decision the FCC judge However, the delay of 22 months is inordinate and, as stated above, coupled with the failure of the Tribunal to explain the delay or to recognise any possible effect of the delay or to seek to explain how any possible problem resulting from the delay might have been taken into account or overcome; together with the Tribunal's adverse credibility findings expressed to be ones that involve some element of demeanour, in my view, the delay created a real and substantial risk that the Tribunal's capacity to assess the applicant's evidence and to evaluate his claims was impaired such that he may have been denied a fair hearing. The applicant's demeanour and credibility are found to have been relevant to the Tribunal's decision given the adjectives it used to describe the applicant's evidence. (original emphasis)

The appellant's submissions 22 The appellant submitted that the primary judge's critical finding is at [46] of her reasons and that, contrary to the primary judge's findings at [47] of her reasons, the failure by the Tribunal to disaggregate its credit findings as between the first hearing and the second hearing or to explain the delay means that the second hearing cannot be said to have cured the denial of procedural fairness which attended the inordinate delay. He further submitted that, contrary to the primary judge's findings at [48], the inordinate delay identified by her Honour did not invite the court to draw an "inference". The appellant contended that, rather, a presumptive conclusion arose based on the inordinate delay which attended the whole process taken together. 23 In support of his submission that the delay gave rise to a "presumptive conclusion" that the decision was affected by jurisdictional error the appellant relied on NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 (NAIS) at [102], where Kirby J said that "[b]y reason of the delay, the 'decision' was presumptively flawed by jurisdictional error". The appellant submitted that the finding of inordinate delay by the primary judge gave rise to the presumption and it then fell to the Minister to displace it. 24 The appellant submitted that, the primary judge having concluded that the delay was inordinate; that the delay was not acknowledged by the Tribunal; that the adverse credit findings which flowed from the procedurally unfair process were not disaggregated in the findings with respect to credit; and that demeanour impacted on the credit findings, the primary judge's findings of procedural fairness with respect to the first hearing must carry over to the procedures utilised by the Tribunal in the decision as a whole. The appellant further submitted that such a view is consistent with the position taken in NAIS, as acknowledged by the primary judge at [20] of BIX15. 25 The appellant contended that, on a fair reading of the primary judge's decision, the absence of any evidence about what transpired at the second hearing, along with the presumptive conclusion that arises in relation to the primary judge's findings, must be determinative of a finding that there was a denial of procedural fairness.

The Minister's submissions 26 At the time the Minister filed his written submissions the appellant had not yet filed his written submissions. Accordingly, the Minister's written submissions were made by reference to the five reasons argued by the appellant before the primary judge as to why the Tribunal's decision was affected by the delay. Other than as set out below, those submissions do not address the appellant's arguments on appeal and I do not propose to repeat them here. 27 The Minister submitted that this is a case where the Tribunal made very detailed records of the first and second hearings; that at the second hearing the Tribunal "re-explored" the appellant's claims; that the Tribunal did not make any express findings based upon demeanour; and that the appellant's answers, as recorded by the Tribunal, were objectively vague, evasive and inconsistent. The Minister submitted that the extent to which demeanour played any significant role in the Tribunal's assessment is not apparent and cannot be inferred. He further submitted that, as was the case in SZKJV v Minister for Immigration and Citizenship (2011) 120 ALD 52; [2011] FCA 80 (SZKJV), the Tribunal did not adopt "bland assertions" but undertook a detailed analysis of the appellant's evidence and claims and explained why it rejected them, including by reference to country information. 28 In oral submissions the Minister submitted that the Tribunal's decision was exceedingly careful and detailed, such that there could be no inference that the delay between the first hearing and the decision caused any unfairness. In support of that submission the Minister noted the following features of the Tribunal's decision: (1) the decision records the claims made by the appellant at his irregular maritime arrival entry interview and in his statutory declaration lodged with his application for a protection visa; (2) the decision also includes a summary of the recording of the appellant's interview by the delegate which, in the Minister's submission, is an unusual feature of a Tribunal decision. The Minister contended that an inference could be drawn that the Tribunal member listened to the recording, as opposed to simply reciting the delegate's summary of the interview, and that this inference was reinforced when one compared the delegate's summary of the interview with the summary included in the Tribunal's decision record; (3) the Tribunal briefly summarised the submission received from the appellant's representative and in doing so noted that the submission referred to matters that did not relate to the appellant; (4) the decision record includes a lengthy summary of the first hearing. As an example of why the Tribunal identified the appellant's evidence as vague and evasive, the Minister noted that first the Tribunal member recorded that he had "asked why [the appellant] applied for a protection visa" and then set out the answer given by the appellant. After doing so, the Tribunal member recorded that he had asked the appellant if there was any other evidence the appellant wanted to give and that the appellant had replied that "this is the only evidence that related to his case". Thereafter the Minister submitted that the Tribunal member had "drill[ed] into the detail", asking about aspects of the appellant's evidence; raising inconsistencies in the evidence given by the appellant at different points in time; and seeking an explanation for those inconsistencies, which derived from the way in which the appellant's claims had developed; (5) in setting out what happened at the first hearing, at [97] of the decision record, the Tribunal member used the expression "today he claimed that" when comparing evidence given by the appellant. The Minister submitted that this suggested that the Tribunal member had recorded the events that took place at the first hearing immediately following that hearing; (6) the record of the first hearing sets out in great detail the Tribunal's "drilling into" the detail of very vague claims made by the appellant to see if those claims could be maintained. The Minister submitted that there is no basis on which the Court could infer that the record of the first hearing in the decision record is not an accurate summary; (7) there is then a description of the second hearing. The Minster submitted that, rather than there being no explanation for the delay, the Tribunal said at [147] of its decision record that it explained to the appellant that it invited him to a further hearing "because of the delay since the last hearing and also because there had been new information". The Tribunal recognised that there had been a delay and that the delay was one of the primary reasons for the need for another hearing. The Minister contended that at the second hearing there was a recanvassing of the appellant's claims and that there is no suggestion that that process was not open and fair to the appellant; (8) the Tribunal's findings and reasons commence at [181] of the decision record with a brief description of the appellant's arrival in Australia and its assessment that he is from Sri Lanka. That is followed by a general discussion about credit. In [184] and [185] of its decision record respectively the Tribunal set out some basic facts that it accepted and a summary of the appellant's claims that it rejected. In [186] the Tribunal noted the appellant's explanations that, for example, he was not in a good state of mind, was nervous, made mistakes in not providing information at an early stage and that mistakes were made in recording his evidence. The Minster contended that the Tribunal then found, in summary, that the appellant's "vague, inconsistent evidence, evasive evidence, failure to provide significant claims at an earlier opportunity and development of his claims over the course of the application, were not because of the explanations offered by the [appellant], but, rather, because the [appellant] had fabricated his claims for protection, reasons for leaving Sri Lanka and fears of returning"; and (9) the Minister submitted that [186] was a summary of what followed, with the Tribunal analysing what the appellant said in relation to each of his claims and identifying the inconsistencies. 29 The Minister submitted that not every delay will cause unfairness, but that delay can cause unfairness, particularly when a tribunal has seen a witness give evidence and does not believe the witness. The Minister relied on SZKJV and submitted that the Tribunal in the present case acted in the same way as was found of the tribunal in SZKJV by Reeves J at [37]-[38]. The Minister contended that there was no need to disaggregate the findings as alleged by the appellant because the first hearing is clearly set out in detail, such that one knows the basis for the Tribunal's findings of inconsistency, and because the Tribunal has not made "vague or bland" findings. The Minister further contended that the delay had reached a level where "something had to happen". The Tribunal's response was to hold a second hearing and re-explore the appellant's claims in order to cure what it recognised was becoming a problematic delay.

Consideration 30 The issue for resolution is whether the delay of 22 months from the date of the Tribunal's first hearing to the time of delivery of its decision denied the appellant procedural fairness such that the Tribunal's decision is affected by jurisdictional error. 31 The starting point for the analysis is the High Court's decision in NAIS. The issue in NAIS was whether the Tribunal's decision involved jurisdictional error in the form of denial of procedural fairness as a result of delay. There, the application for review was made to the Tribunal on 5 June 1997; the Tribunal held oral hearings on 6 May 1998 and 19 December 2001; and it handed down its decision on 14 January 2003. There were communications between the Tribunal and the appellants' representatives during some of the intervals and it took the Tribunal some time to obtain country information relevant to the appellants' claims. 32 The High Court held by majority that the Tribunal's decision was affected by jurisdictional error because of the delay. In his decision at [3] Gleeson CJ said: There is no dispute that the delay on the part of the Tribunal was inordinate. There is nothing in the reasons of the Tribunal that seeks to explain or justify the delay. Nor is there anything in those reasons that recognises any possible effect of delay on the decision-making process, or seeks to explain how any possible problem resulting from the delay might have been taken into account or overcome. The reasons are expressed in a form that appears to treat the time involved in the Tribunal process as immaterial to the adjudicative function. 33 At [5] Gleeson CJ observed that "[u]ndue delay in decision-making, whether by courts or administrative bodies, is always to be deplored" but that "[t]he circumstances in which delay, of itself, will vitiate proceedings or a decision, are rare". His Honour recognised at [6] that in the case before the Court "the focus was upon alleged jurisdictional error, specifically in the form of denial of procedural fairness, in administrative decision-making". Further, his Honour noted at [7] that the question was one of fairness of procedure and that what was said to be unfair was "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". At [8] Gleeson CJ noted that some of the Tribunal's findings adverse to the appellants' credit were based on their own admissions, but that there were other examples of findings adverse to the appellants that turned on an assessment of their credibility in circumstances that must have been influenced by the Tribunal's observations of their demeanour. 34 At [9]-[10] Gleeson CJ relevantly said: 9 Because the Tribunal's reasons ignored the question of the time that had elapsed between the taking of evidence and the final assessment of that evidence, it can never be known how that assessment was in fact affected by the delay. What must be kept in mind is that the question concerns the fairness of the procedure that was followed. It was an inquisitorial procedure that, in the circumstances of this case, depended to a significant extent upon the Tribunal's assessment of the sincerity and reliability of the appellants. That is one of the reasons why they were entitled to, and were given, a "hearing". An important purpose of the hearing was to enable the Tribunal to do just what it ultimately did, that is, make a judgment about whether the appellants were worthy of belief. … A procedure that depends significantly upon the Tribunal's assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal's capacity to make such an assessment is impaired. 10 … The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal. 35 In a separate decision Kirby J identified three issues that arose for decision. The first of those was what his Honour termed "the invalidating delay issue", namely, whether the delays that occurred in the disposition of the appellants' application to the Tribunal were material and, if so, whether such delays constituted jurisdictional error, prima facie entitling the appellants to relief. In addressing that issue Kirby J acknowledged at [86] that even appellate judges "willingly accord to primary decision-makers significant advantages derived from their function in considering all of the evidence, perceiving its parts in relation to the whole and reflecting upon it all, as it is adduced". His Honour noted that those advantages, together with those which demeanour is conventionally held to accord to primary decision-makers, are lost or reduced by protracted delay in providing a decision. At [88] his Honour said: … 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. (footnotes omitted) 36 At [102] Kirby J concluded that the result of his analysis was 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. (footnotes omitted) 37 At [103] his Honour 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 [105]-[106] Kirby J relevantly said: 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. … (footnotes omitted) 38 In their joint decision Callinan and Heydon JJ held at [168] that it was "not possible to say that the Tribunal's decision, depending so much as it did, on the credibility of the appellants who gave oral evidence, was made fairly" and that "[t]his 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". At [169] their Honours noted that the outcome of the appellants' application for review of the decision depended in part at least on demeanour and credibility and that they were "unable to regard the possibility, indeed, even the likelihood … 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 light of the materials supplied to the Tribunal and all the arguments advanced to it". 39 At [172] Callinan and Heydon JJ said: … Another way in which the Tribunal can disable itself from giving consideration to the presentation of a case arises where it permits so much time to pass that it can no longer assess the evidence offered. That is what happened here. The first respondent contended that the appellants could not succeed in the absence of findings that "delay by the Tribunal actually resulted in a material failure to analyse the oral evidence of the Appellants". That finding ought to be made because it can be inferred from the delay that, in the absence of contrary evidence, the Tribunal had deprived itself of its capacity to do so, and there is no contrary evidence. 40 In SZKJV Reeves J considered whether a reconstituted Tribunal delayed for so long in delivering its decision that it committed jurisdictional error of the kind identified in NAIS. In that case the Tribunal hearings took place on 18 November 2008 and 26 February 2009 and the Tribunal delivered its decision on 27 October 2009. In considering the issue his Honour referred to passages from the decisions of the majority in NAIS and then succinctly set out what he considered to be the critical principles arising from those decisions at [33]: In summary, I consider the critical principles arising from these various decisions of the majority in NAIS are these: where adverse credibility findings, based solely or significantly on demeanour, are combined with a lengthy or significant delay in delivering the decision containing those findings, in the absence of some reasonable explanation for that delay, it can be inferred that the procedures followed were unfair, in the breach of natural justice sense, thereby giving rise to jurisdictional error. 41 Commencing at [12] of SZKJV Reeves J summarised the proceeding before the primary judge. His Honour noted at [16] that the primary judge had concluded that in the circumstances of that case it could not be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellant's evidence and evaluate her claims was impaired by any delay that had occurred, such that she was denied a fair hearing. At [17] Reeves J noted that in reaching her conclusions the primary judge had regard to the fact that: … while the appellant's credibility was an issue and hence her demeanour must have played some part in that process, the tribunal's assessment was not based on the appellant's demeanour alone and it did not simply find that her evidence was implausible. Instead, she considered the tribunal had provided closely reasoned explanations for its findings that the appellant was not a witness of truth, dealing with each of the various aspects of her claims in turn. … 42 At [37]-[38] his Honour said: 37 First, and most critically, I consider the federal magistrate was correct in concluding that the tribunal's credibility findings against the appellant were not solely, or significantly, founded on an assessment of her demeanour, nor involved "bland assertions", or simple findings of implausibility. Instead, as the federal magistrate correctly observed, the tribunal clearly based its adverse credibility findings: • on inconsistencies that it identified in the written and oral claims of the appellant, eg the inconsistencies in dates upon which she claimed to receive a summons/document from the police in China; and the inconsistency between her claims to be in hiding in China and her written chronology provided to the tribunal where she indicated she was evangelising in the streets of Guangzhou at the same time; and • on contradictions between her conduct and her various claims, eg in travelling to Singapore to seek protection and yet soon thereafter returning to China, where she claimed to fear persecution; and then continuing to work in China when she claimed to be in hiding. 38 It may also be noted that the tribunal gave detailed reasons for the adverse credibility findings it made on each of these various aspects of the appellant's claims and none of those reasons contained, what I consider to be, bland assertions that the appellant's claims lacked credibility, or that they were simply implausible. In other words, while the circumstances were not such as to require it to do so, I consider the tribunal has met the need identified by Kirby J in NAIS (see [29] above) 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". 43 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. 44 Central to the appellant's case on appeal is that the Tribunal's failure to disaggregate its findings as between the first and second hearings means that the Court cannot draw an inference that the Tribunal only relied on the evidence given at the second hearing in making its findings. This submission must be rejected when consideration is given to the way in which the Tribunal went about making its decision. 45 A careful reading and analysis of the Tribunal's decision reveals that: (1) the Tribunal carefully set out the appellant's claims made at the irregular maritime arrival entry interview, in his statutory declaration accompanying his protection visa application, in his interview with the delegate and then in the material provided by his migration agent; (2) the Tribunal recorded the discussion it had with the appellant at the first hearing and the second hearing. The Tribunal's description of what occurred at those hearings makes clear that the Tribunal went to some lengths to investigate each of the appellant's claims, including the way in which those claims changed either in the way they were put or by the addition of new claims over time, and to raise inconsistencies in evidence given by the appellant in support of his claims at various points in time; (3) at the second hearing, as the primary judge found, the Tribunal "re-explored" the appellant's claims with him. The decision record discloses that the Tribunal asked the appellant at the commencement of the second hearing if there were any further claims since the first hearing that he wanted to submit. The appellant said that there were "some things that happened" but that he had not obtained evidence. In response the Tribunal told the appellant that his own statements were evidence and that he did not need documents. The appellant then described some further matters and the Tribunal explored each of those matters with the appellant before turning to once again explore the earlier claims that the appellant had made; and (4) the Tribunal set out its "findings and reasons" in great detail. It rejected the appellant's account of what happened to him in Sri Lanka and the reasons why he left in June 2012; found that he had fabricated his claims for protection; and found that he was not a credible witness. The Tribunal gave detailed reasons for rejecting each of the appellant's claims. For example, at [187] of its decision record, in relation to the appellant's claim that he fled to Qatar to avoid intimidation and harassment by Mr N and other members of the Karuna group and his related claims, the Tribunal noted its concerns about the amount of inconsistent evidence given by the appellant in relation to those claims and the development of those claims in his dealings with the Department and the Tribunal. Those concerns were put to the appellant. The Tribunal then analysed the explanations given by the appellant and explained why they did not account for the "significant amount of inconsistent evidence" given by him in the development of the claims. After doing so the Tribunal found: The implausible evidence, inconsistent evidence, development of claims and failure to provide significant claims at an earlier opportunity leads the Tribunal to reject all the [appellant's] claims of an association or dealings with a person by the name of [Mr N], the attempted abduction, report to the police, threats to him and his family, conviction for murder, membership of the Karuna Group and that the [appellant] would be of any ongoing interest to a person by the name of [Mr N], the Karuna Group, Pillayan Group or any other group or individual if he returned to Sri Lanka. The Tribunal undertook a similarly detailed analysis in relation to the balance of the appellant's claims. 46 At [25] of her decision the primary judge observed that the Tribunal's decision is "peppered with adverse credibility findings expressed to be on the basis of fabrication of evidence, implausible evidence, tailoring of evidence, vague evidence and evasive evidence" and that "[t]hese adjectives describing the [appellant's] evidence may well lend themselves to involving an element of demeanour assessment". At [46] of her decision her Honour found that demeanour and credibility were relevant to the Tribunal's decision. 47 But, as is evident from the primary judge's observations and from the Tribunal's decision record, the Tribunal's findings were not based exclusively or significantly on the appellant's demeanour. The Tribunal relied on inconsistencies in the appellant's evidence; the way in which his claims were developed; his failure to articulate and provide evidence of significant claims at an earlier opportunity; and independent country information. As was the case in SZKJV, the Tribunal did not make "bland assertions" that the appellant's claims lacked credibility, but gave detailed reasons for rejecting the appellant's claims and for finding that the appellant had fabricated those claims and was not a witness of truth. 48 Further, as found by the primary judge, the second hearing was, in effect, a rehearing of the appellant's claims. The Tribunal said that one of the reasons for holding the second hearing was because of the delay since the first hearing. The Tribunal re-explored the appellant's claims at the second hearing and gave the appellant an opportunity to raise any further matters that had arisen since the first hearing. It then delivered its decision approximately six months after that second hearing, with the despatch of a letter purportedly pursuant to s 424A of the Act in the intervening period. There was no requirement for the Tribunal to disaggregate its findings as between the first and second hearings. The Tribunal's decision is detailed and it did not rely on bald assertions to reach its conclusions that the appellant's claims should be rejected and that he was not a witness of truth. 49 The appellant also relied on the Tribunal's failure to explain the delay as a factor that would lead to a presumption of jurisdictional error occasioned by the delay. The Tribunal did not provide any reason for the delay, but it did acknowledge the delay at [147] of its decision record. The Tribunal explained that the second hearing had been arranged due to, among other things, the delay since the first hearing. In that way the Tribunal at least implicitly recognised the effect of the delay since the first hearing: see NAIS at [3]. Even if, as the appellant submitted, the primary judge's finding of inordinate delay on the part of the Tribunal makes its decision "presumptively flawed by jurisdictional error", that presumption was displaced in this case given the Tribunal's stated reasons for and its conduct of the second hearing as set out in its decision record. 50 There is no error in the primary judge's decision. Her Honour was, in my opinion, correct to decline to draw the inference that the 22 month delay denied the appellant procedural fairness: BIX15 at [48].

conclusion 51 The appeal should be dismissed and the appellant ordered to pay the Minister's costs. I will make orders accordingly. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

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