CQV16 v Minister for Immigration and Border Protection - [2019] FCA 1098 - FCA 2019 case summary — Zoe

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CQV16 v Minister for Immigration and Border Protection

[2019] FCA 1098

Federal Court of Australia|2019-07-15|Before: Mr P, Griffiths J

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Source facts

Court

Federal Court of Australia

Decision date

2019-07-15

Before

Mr P, Griffiths J

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

Background matters 4 The appellant is a citizen of Ukraine. He has a lengthy migration history. He initially came to Australia on 16 May 2000 holding a tourist visa, which expired on 16 August 2000. He subsequently applied for a protection visa. That application was refused by the Minister's delegate. The appellant sought a review in the then Refugee Review Tribunal (RRT). The RRT's decision which affirmed the delegate's decision was set aside by the FCCA, as was a subsequent decision of the RRT which was made on the remitter. A third decision of the RRT (which again affirmed the delegate's decision) was the subject of an unsuccessful judicial review application in the FCCA. The appellant was then removed from Australia to Ukraine in September 2009. 5 While he was overseas, the appellant obtained a fraudulently altered Lithuanian passport and returned to Australia on 18 February 2013. He applied again for a protection visa. The appellant claimed that he was a political activist between 1999 and 2010 and that this activity attracted the attention of the Security Service of Ukraine (SSU), who persecuted him by attempting to fabricate a situation to allow them to bring false criminal proceedings and prevented him from living and working in Ukraine. He claimed that when he returned to that country in 2009 his telephone calls and movements had been monitored and his former brother-in-law had provoked him with a view to creating a pretext for the false criminal charges. 6 The appellant claimed that upon returning to Ukraine on 25 September 2009, he did not spend more than four months at a time there. He had travelled to, resided and worked in Poland, Sweden and Italy from January 2010 to February 2013. He said that he had sought asylum in Sweden and Poland. The appellant acknowledged that he had purchased a forged invitation to work in Poland and was granted a Polish visa. 7 The protection visa application was refused by the Minister's delegate on 25 February 2014. The appellant sought a review of that decision in the then Refugee Review Tribunal (later to become the AAT). The AAT conducted a hearing on 9 October 2014 (first AAT hearing), at which the appellant gave evidence. There was then a long delay without a decision. On 26 May 2016, the same member who conducted the first AAT hearing arranged for the AAT to invite the applicant to appear before her again on 21 June 2016 to give evidence "in relation to any new issues that may have arisen since the last hearing" (second AAT hearing). The appellant was also asked to provide in advance of the second AAT hearing any document upon which he sought to rely. None was provided. The appellant relied on various events in support of his claim for protection, some of which he said occurred after he returned to Ukraine in 2009, while others related to his alleged involvement in anti-government activities in Australia. He claimed that his experiences in Ukraine and Poland resulted from covert action by the SSU. 8 The AAT's reasons for decision are lengthy and comprehensive, totalling 45 pages. In brief, the AAT found the appellant not to be a witness of truth and that he had exaggerated and fabricated accounts of events and his claimed fears. There is a dispute as to whether the adverse findings on credit were based upon an assessment of the appellant's demeanour (see [42]-[46] and [65] of the AAT's decision record). This matter is discussed further below in these reasons for judgment. 9 In summary, the AAT's analysis and findings for affirming the delegate's decision included that: (a) no adverse action was taken by the SSU or anyone else when the appellant returned to the Ukraine. The appellant's own evidence and the country information indicated that the SSU could have detained and interrogated the appellant at the airport and the SSU "did not need to go to all of the claimed, cross-border efforts [(eg. Sweden)] in order to seek revenge against the [appellant] and harm him" (at [74]). The AAT also noted that the appellant had not claimed that the Ukrainian authorities had interrogated him when he returned from Australia (at [67]-[71] and [79]-[81]); (b) the evidence given by the appellant regarding the threats he received from his brother-in-law was not credible (at [83] ff); (c) the appellant had an ongoing asylum claim in Poland but had decided to return to the Ukraine in August 2011 (and on two other occasions). The AAT considered this undermined his claim that he had a genuine fear of harm in the Ukraine, especially when he alleged that Ukraine was a dangerous place and that in 2012 he saw no other way out for himself but to go to Australia (at [99] and [109]); (d) the appellant was prepared to change his evidence and make up claims in response to matters raised by the AAT as to what would happen to him if he returned to Ukraine (at [112]); and (e) he only commenced political activities in Australia after the refusal of his first protection visa application in 2003 by the first RRT. The AAT noted that the appellant's evidence in his protection visa application was that he only started writing articles and claimed to be politically active in 2004 (at [122]). 10 The AAT did not accept that the appellant engaged in any political activities when he was in the Ukraine prior to coming to Australia in 2000. It did not accept that the appellant was persecuted, targeted or harmed by the SSU, the Ukrainian authorities or anyone else prior to coming to Australia (for the first time). The AAT found that the appellant did not leave the Ukraine for fear of persecution. The AAT concluded that the appellant fabricated his claims to support his first protection visa application, and had relied upon these claims in his second protection visa application (at [144]). The AAT then proceeded to give a detailed explanation of its rejection of the various elements of the appellant's claims (at [145] - [187]). 11 Having concluded that the appellant did not meet the refugee criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (Act), the AAT considered whether he met the criteria in s 36(2)(aa). The AAT was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to Ukraine, there was a real risk that he would suffer significant harm for the purposes of complementary protection. It did not accept that the appellant faced a real risk of significant harm for any of the reasons advanced by him (at [188] to [192]).

[2]

The FCCA proceeding 12 The appellant delayed in seeking judicial review of the AAT's decision. He applied to the FCCA to extend the 35 day time period under s 477 of the Act. The primary judge elected to hear the application for an extension of time together with any substantive hearing of his judicial review application. It was not until orders were made and reasons for judgment were published on 14 December 2018 that the appellant learned that the FCCA extended time under s 477(2) of the Act for the making of an application for a remedy in the exercise of the FCCA's jurisdiction under s 476 of the Act and that the extension was based on the primary judge's acceptance that only one of the 11 proposed grounds of review was arguable. The remaining 10 proposed grounds of review were dismissed because they were found to lack merit and did not present any reasonably arguable jurisdictional error. These matters are mentioned here because one of the appellant's contentions on the appeal is that, having extended time under s 477(2), the FCCA was obliged to consider and determine on a final basis all 11 proposed grounds of review, notwithstanding the primary judge's negative assessment of the other 10 proposed grounds on the interlocutory application to extend time. 13 There was a delay of approximately 13 months between the FCCA's hearing and the publication of the Court's orders and reasons for judgment. As will shortly emerge, the length of this delay figures prominently in the appeal, as also is the even lengthier delay in the AAT. 14 In the FCCA, the appellant was represented by the same counsel who appears for him in the present proceeding. The 11 proposed grounds of judicial review set out in the amended originating application for an extension of time which were said to give rise to jurisdictional error on the part of the AAT were as follows (without alteration): The Decision Maker 1. erred in identifying the correct issues; 2. asked incorrect and irrelevant questions; 3. failed to provide appropriate time to the Applicant to respond to the questions; 4. ignored relevant material and/or in the alternative relied on irrelevant material; 5. adopted a wrong test from the provisions of Section 36 Migration Act 1958 and Migration Regulations 1994 6. erred in finding that documents from Ukraine in general and in particular are not to be relied upon; 7. had regard to irrelevant considerations namely the first decision of the Respondent in 2003 and the related events; 8. made a decision that was in breach of the principles of natural justice; 9. exercised power of Tribunal in accordance with policy without having regard to the merits of a particular case namely that documents from Ukraine are generally not to be trusted; 10. erred in finding that there was no evidence or material before the Tribunal to justify the making of the Tribunal's discretion; 11. rejected and refused to have regard to the relevant evidence. 15 The primary judge considered the explanation given by the appellant and the supporting material as to why he delayed in challenging the AAT's decision. That material included reports from a psychologist which were to the effect that the appellant's mental state affected his judgment and decision-making such that he was unable to lodge a timely appeal. The primary judge also summarised the cross-examination of the appellant in the FCCA, which highlighted the appellant's mental capacity to initiate proceedings in 2003, 2005 and 2007. 16 The primary judge explained why he was not satisfied that the appellant had given an adequate explanation for not bringing the FCCA proceedings within the 35 day period. It was found that, although the appellant knew that he could bring those proceedings, he elected instead to seek Ministerial intervention under s 417 of the Act. 17 The absence of an adequate explanation for the delay was not, however, fatal to the application for an extension of time. Instead, the primary judge described the delay as not being significant (see [71]). His Honour concluded that, on assessing each of the 11 proposed grounds of judicial review with a view to determining whether any had reasonable prospects for the purposes of determining whether or not to extend time, only one ground was reasonably arguable, as raising a jurisdictional error. This was proposed ground 8 which relied upon the lengthy delay which occurred between the first and second AAT hearings. Taking into account that assessment, and despite the inadequate explanation by the appellant for his delay, time was extended by the primary judge. 18 The primary judge's reasons for determining that, apart from proposed ground 8, none of the other proposed grounds was reasonably arguable, may be summarised as follows. It should be noted that this summary is not comprehensive, but rather focusses upon the primary judge's reasoning which is challenged on the appeal. 19 Proposed ground 1: At [28] to [41], the primary judge explained why he did not consider that it was reasonably arguable that certain findings made by the AAT did not relate to the "correct issues" as contended by the appellant. Those findings included findings relating to information from the first protection visa application and related merits review proceedings, what the appellant described as "an ironic approach to the evidence" by the AAT, the test of persecution, as well as a claim that the AAT failed squarely to put to him its view that he had fabricated his claims. The primary judge found that in each instance, the AAT's findings were open to it, and it was not arguable that the AAT made the misunderstandings or errors alleged. Lastly, the primary judge concluded the appellant had been on notice that his credibility was in issue and the AAT was not obliged to expose its "mental processes or provisional views to comment before making the decision in question" (citing SZBEL v Minister Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [24] (SZBEL). 20 Proposed grounds 2 and 3: The primary judge's reasons for concluding that these grounds were not reasonably arguable are set out at [42] to [49] of the reasons for judgment. His Honour concluded at [46] that "even on a casual reading of the transcripts of the hearings before the Tribunal it is beyond argument the Tribunal provided the applicant with an ample opportunity to say what he wanted to say". He described the submissions relating to proposed grounds 2 and 3 as having no merit. 21 Proposed ground 4: The primary judge's reasons for concluding that this ground was not reasonably arguable are set out at [50]-[52]. In brief, the appellant's contention that the AAT had ignored the evidence he provided about how he knew the security forces were monitoring his telephone calls was not arguable. Moreover, at [51] the primary judge said that it was not arguable that any misunderstanding by the AAT as to the relevance the appellant attached to this evidence was material in the AAT's conclusion that his claims lacked credibility. 22 Proposed ground 5: The primary judge explained at [53] that this ground was not arguable for the same reasons given in respect of proposed ground 1. 23 Proposed ground 6, 9 and 11: The primary judge explained at [54] to [60] why he viewed these grounds as not being arguable and lacking merit. Essentially this was because, contrary to the appellant's claims, the AAT gave no weight to certain documents from the Ukraine because of the AAT's significant concerns regarding his credibility and that it was open to the AAT to reason the way that it did. 24 Proposed ground 7: The primary judge explained at [61] why it was not arguable that the AAT had misconstrued the phrase "that information" in s 416(d). The AAT's reasons made "it plain it considered the applicant's claims for protection as made before it, and had limited regard to what occurred in the applicant's previous applications". 25 Proposed ground 8: As noted above, this is the only ground viewed as arguable by the primary judge. His Honour's reasons are at [63]-[68] and essentially relate to the lengthy delay between the first and second AAT hearings, a period of between 21 and 22 months. 26 Proposed ground 10: The primary judge's reasons for finding this ground not to be arguable are at [69]-[70]. They relate to the appellant's claim that the AAT failed to consider the evidence of a Professor Bowring. 27 The primary judge's reasons for concluding that ground 8 should ultimately be rejected (even though he initially found it to be arguable) are set out at [73] to [96] of his reasons for judgment. In brief, they are as follows: (a) the question was whether the delay between the first and second AAT hearings produced procedural unfairness; (b) regard needed to be had to relevant provisions in the Migration Act, including s 425, and relevant authorities including Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575 (SZNVW) at [83] per Perram J and Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; 140 FCR 17 (Expectation); and (c) addressing the question whether the delay diminished the AAT's capacity to evaluate the appellant's claims and evidence, the primary judge gave five reasons for answering that question adversely to the appellant: (i) the AAT had before it recordings of both the hearing and, although they were of poor quality, they were capable of being transcribed; (ii) the AAT member had expressly said that she had listened to the tape of the first AAT hearing and would take into account all that evidence; (iii) the AAT member had taken notes by typing into a computer matters that were said during the first AAT hearing; (iv) the AAT's adverse credibility findings were not based on the appellant's demeanour, but rather on the inconsistencies in, and inherent improbabilities of, his evidence and claims; and (v) the AAT's reasons were comprehensive in setting out the appellant's claims, the matters put to the appellant during the hearing and the appellant's responses, as well as detailed reasons for its finding that he was not a credible witness. 28 Because of their significance to the appellant's contention on the appeal that, having extended time under s 477(2) of the Act, the primary judge was required to address and determine on a final basis all 11 proposed grounds of appeal, including the 10 which were found on the interlocutory application to disclose no reasonably arguable case of jurisdictional error, it is desirable to set out the formal orders made by the FCCA on 14 December 2018, being also the date of publication of the reasons for judgment (without alteration): THE COURT ORDERS THAT: 1. Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the 35-day period provided by s.477(1) of the Act for making an application to the Federal Circuit Court of Australia for a remedy to be granted in the exercise of the Federal Circuit Court's jurisdiction under s.476 of the Act in relation to the decision of the second respondent made on 30 June 2016 is extended to 16 September 2016. 2. The application is dismissed. 3. The applicant pay the first respondent's costs fixed in the amount of $7,206. DATE ENTRY IS STAMPED: 14 December 2018. 29 Counsel for the appellant submitted that the material demonstrated that the basis for the AAT's adverse credibility finding was misconceived and involved a fundamental misapprehension of the facts.

[4]

The appellant's interlocutory application to adduce further evidence 31 As noted above, by an interlocutory application filed on 14 June 2019, the appellant sought to adduce further evidence in the appeal. That further evidence took the form of an affidavit by the appellant also filed on 14 June 2019. In truth, large parts of the affidavit are in the form of submissions, rather than evidence. In broad terms, the further "evidence" comprised the appellant's accounts of his complaints regarding the adverse credibility findings made by the AAT; the claimed true identity of the appellant's biological father; the appellant's political activities while he was a university student; the appellant's time in the Army; the circumstances surrounding the appellant obtaining the fraudulent Lithuanian passport and the appellant's beliefs as to the role his biological father played in facilitating his return to Australia in 2013. The appellant also relied upon an affidavit of his solicitor affirmed on 14 June 2019 in support of his interlocutory application. This affidavit was relied upon in support of the appellant's submission that he only obtained the further evidence shortly after the FCCA published the orders and reasons for judgment on 14 December 2018. 32 In his oral submissions, the appellant contended that the further evidence should be admitted on the appeal because: (a) it was only obtained by the appellant after the FCCA published it reasons for judgment; (b) it demonstrated the AAT obtained information between the first and second hearing which was not put to the appellant; (c) the material was relevant to the issue of the appellant's credit and, in particular, to why he was not persecuted when he returned to Ukraine in September 2009; and (d) it contained evidence of the appellant's activities in Ukraine which was inconsistent with some of the material relied upon by the AAT. 33 The Minister opposed the interlocutory application. In brief, the Minister submitted that leave should be refused on the basis that even if the evidence had been available and had been placed before the FCCA, it was irrelevant to either ground 8 of the judicial review application (which was the only ground heard and determined on a final basis by the primary judge) or any of the other 10 proposed grounds. Secondly, the Minister contended that the further evidence would have been contested by him if it had been adduced below. Finally, as to the claim the AAT obtained information from undisclosed sources, the Minister submitted that the claims were unsupported and amounted to no more than speculation on matters that do not give rise to any known ground of judicial review. 34 After hearing argument, I indicated in the course of the hearing that the interlocutory application would be dismissed and that I would provide reasons for that ruling in these reasons for judgment (see [44] ff below).

[5]

The appellant's submissions on the appeal summarised 35 At the forefront of the appeal was the correctness of the primary judge's rejection of ground 8, which related to the delay between the first and second AAT hearing, as well as the FCCA's own delay. These matters were said to be raised by grounds 1, 4 and 7 of the notice of appeal. The appellant described the length of delay in the FCCA, being 13 months, as "deplorable" referring to Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 (Aon) at [152] per Heydon J. 36 The appellant also emphasised what was described as "administrative decision-making delay" in the AAT, including the seven month delay between the filing of his review application and the first AAT hearing. He emphasised that there was a 20 month delay between the first hearing and the conduct of the second AAT hearing on 21 June 2016. He said that there was overall a 21 month delay after the first hearing before the AAT published its decision and reasons on 30 June 2016. The appellant submitted that the significance of this delay lay in the fact that the AAT's findings on the appellant's credibility were pervaded by the "subtle influence of demeanour" (relying on the observations in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 68; 228 CLR 470 (NAIS)). 37 The appellant complained that, contrary to Expectation at [71], the FCCA failed to explain and address the effect of operative delay by the AAT, which contributed to the FCCA's failure to consider "critical aspects" of the appellant's case. The appellant emphasised that the 13 month delay between the hearing and giving of judgment in the FCCA underpinned the primary judge's obligation to provide a comprehensive statement of the relevant evidence so as clearly to show that the Court had not overlooked issues in its fact-finding and law-ruling tasks. Contrary to that obligation, the appellant asserted that: (a) the FCCA failed to refer sufficiently to the evidence, including misdescribing a statement by the appellant as being dated 7 July 2013 when in fact it was dated 17 July 2013; (b) the FCCA's failure to explain its delay gave rise to an inference that it had insufficiently appreciated its "superadded task" as described in Expectations; (c) although the FCCA gave a short summary of the appellant's statement dated 17 July 2013 in the context of determining the application for extension of time, it failed to elaborate upon that summary in the context of its substantive consideration of the amended judicial review application and refer to other statements dated 1 February 2014 and 18 March 2014; and (d) moreover, the primary judge's summary of the 17 July 2013 statement at [12] was inadequate because it failed to refer to various relevant evidence or was inaccurate, for reasons which are set out in [22] to [26] of the appellant's written outline. The appellant also complained that the primary judge's summary at [12] did not explain the antipathy between the appellant and the Ukraine Government nor the basis of its rejection of his claim that it was a "rogue government run or influenced by criminal business interests", which interests had been criticised by him. Similarly, the appellant complained that the summary did not address his "fundamental complaint" that Ukraine had become a corrupt regime. 38 The appellant claimed that the primary judge did not grapple with the significance of the delays within the processes of the AAT and the background delays stretching back to 2000. 39 The appellant complained that the primary judge erred in not considering, in the substantive proceeding, the other proposed grounds of judicial review. It was submitted that a "perfunctory review of proposed grounds for the purpose of deciding if there is a basis for an extension of time is one function; a judicial review of the facts and evidence in a case where honesty of the Appellant is in issue is another". The appellant contended that these issues are raised by grounds 2, 5 and 7 of the notice of appeal. It was said that those grounds also raised a complaint that the primary judge erred in not finding that the AAT's second hearing was flawed because it did not constitute a full hearing of the matter given the time that had lapsed since the first AAT hearing, and merely involved inviting the appellant to put anything further that he wished to say. The appellant submitted that the AAT's failure to conduct a full rehearing of the matter at the second hearing resulted in a subversion of the review process required by Pt 7 of the Act (referring to SZNVW at [83] per Perram J). 40 As to grounds 3 and 5, and the claim that the primary judge did not give sufficient consideration to the appellant's complaint under the Refugee Convention that Ukraine had become a corrupt regime etc, the appellant relied on Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 214 CLR 496 (Dranichnikov) for the proposition that a failure to appreciate and consider a claim made by the applicant may give rise to jurisdictional error. In his written outline of submissions, the appellant submitted that neither the AAT nor the FCCA addressed his claim, supported by Professor Bowring's evidence, that he was a member of a social group or held political opinions which exposed him to persecution. He said that both the AAT and the FCCA "confused the question at the heart of the matter with credit issues". Thus the FCCA erred "in failing to correctly characterise or apply the Convention test to the Appellant". As will shortly emerge, this claim was expressed differently in oral address.

[7]

(a) Appellant's interlocutory application to adduce further evidence 44 I shall now explain why leave was refused for the appellant to adduce further evidence on the appeal. 45 The general principles guiding the exercise of the Court's discretion under s 27 of the FCA Act are well settled. As the Full Court stated in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [42], there are two guiding conditions. The first is that the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial. Secondly, the evidence must be such that very probably the result would have been different. It is necessarily implicit in the second condition that the evidence would have been relevant to the issues raised in the trial below. 46 Even if it is accepted that an adequate explanation has been provided by the appellant's instructing solicitor in his supporting affidavit as to why the further evidence only came to the appellant's attention after publication of the FCCA's reasons for judgment, the second condition is fatal to the appellant's interlocutory application. That is because the evidence would not have been relevant in the FCCA proceeding, given that the Court there was exercising judicial review jurisdiction under s 476 of the Act. That jurisdiction is confined to determining whether or not there is jurisdictional error. As Bromwich J stated in AAW16 v Minister for Immigration and Border Protection [2017] FCA 49 at [33] any further evidence had to be relevant to the issues which were able to be agitated properly before the FCCA "which was confined to asserted errors capable of establishing jurisdictional error on the part of the Tribunal". 47 In Ozberk v Minister for Immigration and Multicultural Affairs [1998] FCA 12; 79 FCR 249, Marshall J held in the context of a judicial review proceeding in this Court that the Court had no jurisdiction to admit fresh evidence to demonstrate an alleged error of fact on the part of the Refugee Review Tribunal. His Honour noted at 254 that the real purpose for which the admission of the fresh evidence was sought was to contradict the evidence which was before that Tribunal. The same may be said here, while also noting that this is an appeal from a judicial review decision. 48 The limited scope of judicial review of findings of fact and the implications of that confined role in assessing whether to admit further evidence is an important consideration in determining whether or not to grant leave under s 27 of the FCA Act (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [59]-[60]; Vo v Minister for Home Affairs [2019] FCAFC 108 at [42] ff). There is a risk that the important limitations on the scope of judicial review, and the need to avoid straying into an impermissible review of the merits of a decision, would be circumvented if, on an appeal from a decision in the exercise of judicial review jurisdiction, evidence is admitted which would not have been relevant to any ground of judicial review if the evidence had been available at that time. 49 The further evidence is not relevant to the only judicial review ground which the appellant was permitted to run in the FCCA, namely that relating to delay on the part of the AAT (i.e. ground 8). Evidence obtained by the appellant for the first time several days after the FCCA published its reasons for decision and almost 18 months after the AAT published its decision could hardly be relevant to the appellant's complaint concerning delays in either the AAT or the FCCA. As to the appellant's unparticularised claim that parts of the further affidavit show the AAT's obtained information between the two hearings without disclosing it to the appellant, I accept the Minister's submission that the claims are unsupported and speculative. 50 Finally, large parts of the further evidence in the appellant's affidavit filed on 14 June 2019 comprise hearsay or take the form of submission or conjecture and are not admissible evidence. 51 These matters provide a sufficient basis for dismissing the interlocutory application.

[9]

(i) Whether the substantive hearing below had to address all the proposed grounds of appeal once time was extended 53 It is convenient to first address the appellant's bold contention that the primary judge erred in not proceeding to hear and determine on a final basis all of the 11 grounds contained in the draft notice of appeal. As mentioned, the appellant contended that, having extended time under s 477(2), the FCCA was obliged to then address and determine all the grounds in the originating application notwithstanding that the primary judge determined that only one of the proposed grounds was reasonably arguable so as to warrant time being extended. 54 Sub-sections 477(1) and (2) of the Act provide: Time limits on applications to the Federal Circuit Court (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. .. 55 The terms of the FCCA's orders made on 14 December 2018 are set out at [28] above. 56 The primary judge made clear in [72] of his reasons for judgment that none of the grounds set out in the amended originating application, save for that in ground 8 relating to the AAT's delay, had any merit or was reasonably arguable. His Honour then stated that this "means that the application should be dismissed to the extent it relies on those grounds". 57 There are several reasons why the appellant's contention are rejected. First, there is nothing in the terms in s 477 which supports his contention. Sub-section 477(1) refers to "an application to the Federal Circuit Court for a remedy to be granted" in the exercise of s 476 jurisdiction having to be made within 35 days of the date of the migration decision. The FCCA has a discretion to extend that time if an application for such an order is made by an applicant in which it is specified why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the FCCA is satisfied on that score. That provision is silent on the matter of the grounds of review which the applicant may be permitted to run if the Court extends time. The provision does not state, explicitly or implicitly, that, if time is extended, the applicant is entitled to advance all the proposed grounds of review set out in his or her originating application. Rather, it is implicit that the Court has a discretion in determining which of the proposed grounds an applicant is entitled to run if time is extended. 58 Much clearer language than that which appears in the text of s 477 (or elsewhere in the Act) would be required to bring about the extraordinary result contended for by the appellant here, namely that if only one of eleven proposed grounds of judicial review is assessed as being reasonably arguable for the purposes of determining whether or not to extend time, the FCCA must hear and determine on a final basis all the remaining proposed grounds of judicial review notwithstanding that they have been assessed by the Court on an interlocutory basis and found to lack any merit or prospects of establishing jurisdictional error. 59 The appellant's reliance on the terms of the formal orders made by the FCCA on 14 December 2018 is equally misconceived. Under Order 1 (see [28] above), the 35 day period referred to in s 477(1) "for making an application to the Federal Circuit Court of Australia for a remedy etc" (emphasis added) does not mean that, because time was extended, the amended originating application in its entirety had to be heard and determined by the FCCA. It is notable that the terms of the order make no express reference to the amended originating application filed by the appellant in the FCCA. The reference to "an application" in Order 1 is a reference to an application for judicial review which, having regard to the primary judge's reasons on the interlocutory application to extend time, is to be read as being confined to the only ground which the FCCA found to raise a reasonably arguable case of jurisdictional error by the AAT. It may have been desirable for the Orders to have explicitly required the appellant to file an amended originating application which was confined to ground 8 above, but this failure does not give rise to appealable error. The intent underlying Order 1 is sufficiently clear. 60 The appellant's related contention that the primary judge erred in not addressing all the relevant evidence concerning the ten proposed grounds of appeal apart from ground 8 and confining himself simply to the evidence relevant to the findings on the interlocutory application for an extension of time, must necessarily also be rejected. That is because it is predicated on an assumption that, having extended time, the FCCA was obliged to consider the substance of all those grounds, an argument which I have rejected above.

[10]

(ii) Whether the appellant's demeanour was relevant to the AAT's adverse credibility finding 61 I now address the appellant's contentions relating to the significance which the AAT attached to his "demeanour". The Court was invited, in effect, to view the AAT's statements at [65] and [142] as being untrue and false in recording the basis for the AAT's adverse credibility findings. The appellant argued that demeanour, as referred to in [42]-[46] of the decision record, was also "in the mix" in the adverse credibility finding. 62 I reject the appellant's contentions on this matter. There is no reason to doubt the truthfulness of the AAT's unambiguous statements as to the matters it relied upon in arriving at its adverse credibility findings. In brief, they are based on the AAT's view that the appellant's evidence "was inconsistent, changing and not credible" (see at [65]). The AAT then explained at considerable length at [66]-[141] its reasons for those conclusions. At [142], the AAT explicitly stated that, considered cumulatively, "the concerns the Tribunal holds about the [appellant's] credibility as discussed above lead the Tribunal to conclude that the [appellant] is not a witness of truth and the [appellant] has exaggerated and fabricated accounts of events, as well as claimed fears, upon which he has based his protection claims" (emphasis added). Having regard to the structure of the AAT's reasons, reference to the material in [66] to [141] of those reasons, the AAT's earlier statement at [46] (in an earlier part of the reasons) is directed not to the appellant's credit, but rather to the AAT's satisfaction that he was able to understand the proceedings and present evidence and arguments (noting that the appellant was not represented in either AAT hearing). The appellant has not persuaded me that the primary judge fell into appealable error when he found at [92] of his reasons for judgment that the AAT did not rely on its observations about the appellant's conduct during the hearing for not accepting his claims, nor did it rely on his demeanour. 63 As was recently stated in Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026 at [41], it is a serious matter for the Court to conclude that a clear and unambiguous statement made by the AAT in its decision record does not reflect the reality or truth of the AAT's deliberations. Compelling and cogent reasons need to be demonstrated before finding that such a statement is inaccurate or false or does not truly reflect the AAT's reasoning processes. The same burden applies where the issue is described as "a question of the veracity and the authenticity of the statements", which is how the appellant put his submission. I am not satisfied that this burden has been met here. 64 With the Court's leave, the appellant was given an opportunity after the hearing to provide a list of transcript references in order to support his counsel's submission during oral address that the Court should find that demeanour was taken into account by the AAT in arriving at its adverse credibility findings. Six such references were provided. None of them indicates that, contrary to the AAT's explicit statements, demeanour figured in the AAT's adverse findings on credibility. It is also important to bear in mind the relationship between observations recorded in a transcript and the production of final reasons for decision (see WZAQU v Minister for Immigration and Citizenship [2013] FCA 327; 223 FCR 534 at [30] per Flick J and Kelly v Australian Postal Corporation [2015] FCA 1064; 67 ALR 369 at [51] per Griffiths J).

[11]

(iii) Whether the ambit of the second AAT hearing was unduly limited 65 I shall now address the appellant's claim that the primary judge erred in not accepting his contention that, given the significant lengthy delay between the first AAT hearing and the second AAT hearing, the AAT was required by law to conduct a complete rehearing and that the second AAT hearing was inadequate in law. 66 For the following reasons, I reject this claim. First, as to the appellant's reliance on what Perram J said in SZNVW at [83] it may be accepted that, having regard to the relevant terms of Pt 7 of the Act and to s 425 in particular, the central question is whether the review process contemplated by those provisions and s 425 has been "subverted". Notably, however, that issue arose in SZNVW not in the context of the review tribunal conducting two separate hearings, as is the case here, but rather where the then RRT proceeded with its hearing in circumstances where the review applicant was suffering from mental impairments which affected his memory. This was contended to be a subversion of the review process. 67 The course taken by the AAT here did not subvert the review process contemplated by s 425 and other relevant provisions in Pt 7 of the Act. The delay which occurred after the first AAT hearing was inexplicably lengthy. The AAT was apparently conscious of that fact when, in a letter dated 26 May 2016, it apologised to the appellant and invited him to give evidence at a resumed hearing in relation to any new issues that had arisen since the first AAT hearing, as well as provide any further documents upon which he relied. This was an adequate and appropriate response by the AAT in the particular circumstances here. The opportunities afforded to the appellant to participate in the second AAT hearing are inconsistent with the appellant's claim that the process was "subverted". It is important to bear in mind that the same AAT member conducted the first and second AAT hearings, had the benefit of a transcript of the first AAT hearing and had also taken notes of that hearing. 68 Secondly, in the particular circumstances of this case, nothing more was required in law by the AAT. The appellant had the opportunity to update his evidence by reference to any new issues and to provide documentary evidence in support of his claims. He availed himself of the opportunity to give further evidence, but he provided no further supporting documentary evidence prior to or during the second AAT hearing. 69 Thirdly, towards the conclusion of the second AAT hearing the AAT member stated that she had previously discussed at the first AAT hearing her "concerns and they remain valid". She assured the appellant that she would take into account all of his evidence from the first AAT hearing and what was discussed at the second AAT hearing. When the member then asked the appellant whether there was anything final he wanted to say, his only response was to ask her not to kill him. 70 Fourthly, while it is not determinative of the issue because provisions such as s 425 impose obligations on the AAT which it must discharge, it may be noted that there is no evidence to suggest that the appellant (who was unrepresented at that stage) complained either before or during the second AAT hearing was conducted that its scope was unduly narrow and should be broadened in any way. 71 I also reject the appellant's reliance on Smith v NSW Bar Association [1992] HCA 36; 176 CLR 256 (Smith). There, the Court of Appeal of New South Wales had published reasons for judgment in which it found the appellant, a barrister, to be guilty of professional misconduct because he did not believe on reasonable grounds that he had been instructed to appear in a proceeding in the Local Court in which he announced his appearance. The Court found that the barrister had lied both to it and to the Magistrate in which his appearance had been announced. Before the Court's orders were entered, the appellant sought to have the matter reopened on the ground that there had been a mistake of fact on which the Court of Appeal had relied. The appellant sought to present further evidence, which included evidence from a solicitor that he and the barrister had had a conversation in a carpark about another matter, as well as evidence of the barrister's good character. The Court of Appeal allowed the matter to be reopened, but refused to receive the further evidence. The Court affirmed its earlier orders, including the barrister's disbarment. 72 The High Court found that the Court of Appeal erred by not giving the barrister the opportunity, in the reopened hearing, of giving evidence about the conversation in the carpark which was the subject of an adverse finding by the Court of Appeal in its first reasons for judgment. The plurality added that, once the Court of Appeal reopened the matter, it ought to have received the further evidence relating to the barrister's truthfulness. 73 The circumstances in Smith are far removed from those here. The AAT had not published reasons for decision when the second AAT hearing was conducted. The AAT was under no legal obligation to provide the appellant with an opportunity to comment on its tentative findings or deliberative processes on the issue of credit in circumstances where it was plain to the appellant that this was an issue in the proceeding (see further [80] below).

[12]

(iv) Delays in both the AAT and the FCCA 74 I now address the core of the appellant's appeal, which relates to the primary judge's rejection of ground 8 of the proposed notice of appeal, which relates to the AAT's delays. The appellant also complains that the 13 month delay between the hearing and publication of judgment in the FCCA gave rise to appealable error. Grounds 1, 2 and 4 of the grounds of appeal were said to raise these matters. 75 I have deferred addressing this core claim to this point because the other aspects of the appellant's appeal which have been addressed above relate to it. 76 The delay which occurred between the conduct of the first AAT hearing and the second AAT hearing, which is unexplained, may fairly be described as "inordinate". But that does not mean that the delay gives rise to jurisdictional error. As Gleeson CJ observed in NAIS at [5] the circumstances in which delay of itself produces invalidity "are rare". One matter which is relevant in evaluating the legal significance of inordinate delays is whether the decision-maker has ultimately made findings based on the review applicant's demeanour (see NAIS at [7], [9]-[10] per Gleeson CJ and at [170] per Callinan and Heydon JJ and, to similar effect, see SZKJV v Minister for Immigration and Citizenship [2011] FCA 80; 120 ALD 52 at [33], [37]-[38] per Reeves J). The relevant principles were helpfully summarised by Markovic J in BIX15 v Minister for Immigration and Border Protection [2017] FCA 1116 at [43]: 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. 77 As previously mentioned, presumably in recognition of the lengthy delay after the first AAT hearing was conducted, the appellant received a letter dated 26 May 2016 from the AAT in which he was provided with an opportunity "to give evidence in relation to any new issues that may have arisen since the last hearing" and invited to provide "any further documents upon which you seek to rely" prior to the second AAT hearing which was scheduled to take place on 21 June 2016. 78 I am not persuaded that the appellant has established that the primary judge fell into appealable error in rejecting the contention that the AAT's delay produced jurisdictional error. His Honour gave detailed reasons at [73] to [95] of his reasons for judgment for rejecting the complaint. It is notable that the primary judge correctly appreciated that the relevant approach was that approved by the High Court in NAIS. The primary judge gave comprehensive reasons, with which I respectfully agree, as to why the delay in the AAT did not diminish the AAT's capacity to evaluate the appellant's claims and evidence. An important part of his Honour's analysis is his finding at [92] that the AAT's adverse credibility conclusion did not rely upon the appellant's demeanour. I have already indicated that I agree with that conclusion, particularly in the light of the explicit statements by the AAT in its decision record, as well as the structure of those reasons. 79 The primary judge gave considerable weight to the comprehensive nature of the AAT's reasons for decision, in which the appellant's claims and evidence are comprehensively reviewed and the AAT gave detailed reasons in support of its conclusion that the appellant was not a credible witness. I respectfully agree with the emphasis given by the primary judge to these matters. 80 The appellant's counsel suggested several times that in view of the delay between the first AAT hearing and the second AAT hearing the AAT was obliged, prior to conducting the second AAT hearing, to disclose to the appellant for comment its proposed adverse findings on credit. I reject that contention. It is inconsistent with the Full Court's well-known statements in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 (see also SZBEL at [29]-[32]). In general terms, and subject to relevant legislative provisions, a decision-maker is required to advise of any adverse conclusion which would not obviously be open on the known material but is not obliged to expose his or her mental processes or provisional views for comment before finalising the decision. 81 I turn now to address the appellant's separate complaints regarding the delay which occurred between the hearing of the appellant's judicial review application in the FCCA and the publication of orders and reasons for judgment, a period of approximately 13 months. This period is regrettably long, albeit of a lesser magnitude than that which occurred in the AAT. For the following reasons, however, I reject the appellant's submission that the delay in the FCCA produces an appealable error. The appellant's reliance on Expectation for this submission is misconceived. It may be accepted, as a statement of general principle, that where there is a significant delay between the hearing of a trial and the publication of reasons for decision it is important that the trial judge provide "a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to manifest, to the parties and the public, that the delay has not affected the decision" (Expectation at [71]). Moreover, in such circumstances, "it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected. It is unnecessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses…" (Expectation at [72]). 82 Importantly, however, those observations in Expectation were made in the context of a lengthy and complex commercial proceeding involving claims of misleading or deceptive conduct, negligence, breach of fiduciary duty and breach of contract. There were numerous witnesses, whose evidence was given over more than 10 days. Many facts were keenly contested and the demeanour of some witnesses was important in resolving disputed issues of fact. That is to be contrasted with the position in the FCCA here. The primary judge was not hearing a complicated and lengthy commercial case of the kind in Expectation. Rather, his Honour was exercising a judicial review jurisdiction. Several witnesses gave evidence at the hearing in the FCCA, including the appellant. That evidence, including that of the appellant, his solicitor and his psychologist, all sought to explain the delay in bringing the FCCA proceeding and whether time should be extended to bring the judicial review proceeding. As noted above, this issue was determined in the appellant's favour. 83 It was not suggested that the appellant (or any other witness) gave evidence in the FCCA in support of ground 8, which is the only ground for which time was extended. Nor would one ordinarily expect this to occur because the legal significance of such delay would not generally turn on such evidence. 84 The primary judge's reasons for judgment are comprehensive. They total 43 pages and contain an extensive analysis of the background to the proceeding, the appellant's claims for protection, the AAT's reasons for decision, the proposed grounds of judicial review and the reasons why only one such ground was found to be reasonably arguable, as well as an extensive analysis of legal principles concerning the significance of delay on the part of the AAT and why the primary judge ultimately found that those delays did not produce jurisdictional error in the particular circumstances of this case. 85 For all these reasons, I am not satisfied that the 13 months delay in the FCCA gives rise to appealable error. 86 Finally, and lest there be some doubt, I make it clear that I am not suggesting that delay by a court in the conduct of a judicial review proceeding can never give rise to an appealable error. Rather, in assessing that issue it is necessary to bring to bear the nature and limitations of that jurisdiction when compared with other jurisdictions exercised by the court, with particular reference to fact finding. Ultimately, the legal significance of any delay turns on all the relevant circumstances in an individual case.

[13]

(v) Failure to address appellant's refugee claim 87 As mentioned, in his outline of written submissions relating to grounds 3 and 5 and the reliance upon Dranichnikov, the appellant claimed that both Professor Bowring and the appellant had "identified membership of a social group or by reason of political opinion amenable to protection", involving criticism of a sovereign foreign government, yet neither the AAT nor the FCCA addressed or focused on that issue. This was said to constitute a failure to deal with this aspect of his claim for protection. 88 These grounds are rejected for several reasons. First, it is not at all clear that the matter is raised by grounds 3 and 5 of the notice of appeal. 89 Secondly, it is notable that the appellant's complaints regarding these matters were expressed somewhat differently in his counsel's oral submissions. His counsel submitted that there was "an error of the Dranichnikov type" because of the failure to deal with his claim that he was at risk of persecution in Ukraine because of "his role as a businessman, that is, as a member of a social grouping opposed by a criminal element in a corrupt regime…". 90 The appellant's counsel referred to no particular part of the appellant's evidence or materials in the AAT where any such claim was either made by him or otherwise clearly arose from the materials (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [59]). Indeed, in his detailed statement dated 17 July 2013 (which was made by the appellant to the Department in support of his latest protection visa application and was in evidence before the AAT), the appellant cited the case of Denys Oleynikov whom he said had been "officially pursued" by the Ukrainian government "for economic offences rather than for political ones". The appellant then immediately stated at [54] of this statement that: Unlike Oleynikov, since 1999 I have no business ventures in Ukraine. Thus it was impossible to fabricate an 'economic' case against me. Therefore, the SSU [the Security Services of Ukraine] tried to fabricate a criminal case against me. 91 In the same statement dated 17 July 2013, the appellant claimed that, when he returned to Ukraine, he "tried to start my private business using my old contacts in business circles in Ukraine and Poland". He then described the difficulties he experienced in obtaining an "Entrepreneur Certificate" (which he said was similar to an Australian ABN), his attempts at obtaining a residence permit and the fact that he was fined for not being registered. He said that he told the Business Registration Department at the City Council that he was not required under Ukrainian law to have a residence permit and that it was sufficient that he was living there. He said that he was kicked out of the office, without explanation. He stated that it was his "belief and understanding… that workers of the Business Registration Department would only break the law of Ukraine following the direction of the SSU". He also described how the police denied him a residence permit because the apartment in which he was living was too small and he did not have his sister's consent (she resided in Italy). 92 None of this material concerning the appellant's unsuccessful attempts to start a private business using his old contacts from business circles in Ukraine and Poland suggests that the appellant's case involved a claim that he was at risk of persecution in Ukraine because of his membership of a social group, being business people who were at risk of persecution by a criminal element in a corrupt regime. The appellant undoubtedly raised a claim of risk of persecution based on his political opinion, but that claim was fully considered and rejected by the AAT for the reasons given by it. 93 There is no reference in Professor Bowring's report dated 28 September 2006 (which the appellant had obtained for one of the hearings in the RRT), to the case of Denys Oleynikov. Nor is there any suggestion in Professor Bowring's report that the appellant advanced a claim based on his membership of a social grouping involving businessmen, which is unsurprising given that Professor Bowring was not asked to address any such claim. 94 Accordingly, the appellant's case is far removed from the circumstances in Dranichnikov, where there was a failure to deal with a claim because of the Tribunal's misdescription of that claim. There was no misdescription by the AAT here. 95 For these reasons, if grounds 3 and 5 are properly read as raising a claim relating to a risk of persecution because of the appellant's role as a businessman and as a member of a social grouping which was opposed by a criminal element in a corrupt regime (as put by his counsel in closing address), these grounds are rejected. 96 For similar reasons, leave ought not to be given to the appellant to amend grounds 3 and 5 to raise such a claim (assuming that such leave is required) because the proposed amendments are doomed to fail. 97 Finally, it is to be noted that the Minister's counsel referred in both her written and oral submissions to the High Court's decision in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 (SZVFW). Counsel for the appellant sought and obtained leave to put in a brief note post hearing on that decision in circumstances where he said that he was not aware of the High Court's decision. The Court made it clear that this aspect of the Court's leave was limited to that particular decision. The note which was subsequently provided by the appellant's counsel went beyond the grant of leave. Those parts of the note have not been taken into account. Insofar as the note addresses SZVFW, it is unnecessary to respond to the appellant's submissions on this topic because the Court places no reliance upon SZVFW in dismissing the appeal.

CQV16 v Minister for Immigration and Border Protection

At a glance

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Judgment (14 paragraphs)

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Legislation Cited (2)

Cases Cited (21)

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