Consideration
34 The appellants' submission was based on the contention that there was a lengthy delay between the hearing in the Tribunal and the publishing of its reasons in circumstances where the decision turned largely on credit. The delay in this case was fourteen months.
35 In that context, although the appellants accepted that the circumstances in which delay of itself will vitiate decisions are rare and that the delay must be causative of some error, the appellants submitted that the inference or presumption is that the decision is flawed. They submitted that the Tribunal's reasons are silent on the delay and therefore there are no countervailing considerations to rebut an inference or to otherwise establish that the delay did not cause an error. That is, it is incumbent on the decision maker to displace that inference. They submitted that detailed reasons cannot display that inference.
36 As explained above, the submission is based on NAIS where the High Court considered the effect of an inordinate delay in delivering a decision on the decision making process. The delay was four and a half years. There, the application for review was made to the Tribunal on 5 June 1997. There had been two oral hearings, which occurred on 6 May 1998 and 19 December 2001. The Tribunal delivered its decision on 14 January 2003.
37 In NAIS, Gleeson CJ at [5] described the relevance of delay as follows (citations omitted):
Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare. Of course, statutes of limitation impose a legislative direction that certain delays will bar proceedings; and analogous consequences may flow from the application of equitable principles. There is, however, nothing in the Act that prescribes a time limit for decisions of the Tribunal, and this Court has no power to determine some such limit. A court may have power to relieve against oppressive conduct of a complainant, or a prosecutor, and delay may be a factor in the oppression. In such circumstances, the ground for relief is the oppression, not the delay. A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself. Where delay gives rise to a ground of supervisory or appellate intervention, the remedy must be tailored to the circumstances and justice of the case. In adversarial litigation, for example, neither party may be at fault, and it may be unnecessary and unjust to visit the successful party with all the consequences that flow from having to start again. Remedies available where delay has caused problems may be discretionary. (In the present case, counsel for the first respondent disclaimed any reliance upon a discretionary argument.) In some cases, mandamus may be an available remedy for dilatory behaviour, and failure to seek mandamus could constitute a discretionary reason to deny later relief.
38 Gleeson CJ stated that in NAIS, the focus of the Federal Court decision was upon alleged jurisdictional error, specifically in the form of denial of procedural fairness, in administrative decision-making: at [6]. In that context, Gleeson CJ observed at [7] (citations omitted):
In Blencoe v British Columbia (Human Rights Commission), Bastarache J, speaking for the majority, said it was "accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied". There may be some circumstances in which delay has had a direct and demonstrable effect on the outcome of administrative proceedings. Bastarache J gave examples. On the other hand (and this was the point of departure between Hill J and Finkelstein J in the Full Court of the Federal Court), there may be cases where it is difficult, or even impossible, to know the consequences of delay…In the present context, which is not one of appellate scrutiny, but of judicial review of an administrative decision for jurisdictional error, the question is one of fairness of procedure. What is said to be unfair is that the Tribunal made demeanour-based findings against the appellants in circumstances where four and a half years elapsed between the observation of the demeanour and the making of the findings…
39 When inordinate delay is established, close analysis of the circumstances of the case and the effect of the delay is required: NAIS at [82] and [85]-[88] per Kirby J. At [88] Kirby J observed (citations omitted):
…Where the decision-maker reaches a decision in reliance upon considerations of the credibility of parties or witnesses, significant delay undermines the acceptability of such assessments. Where there is lengthy delay in the provision of a reasoned decision, whether by a judge or a tribunal, it may not be enough for the decision-maker simply to announce conclusions on credibility. It may then be necessary to say why the evidence of a witness is believed or disbelieved, in effect to demonstrate that any countervailing evidence has not been forgotten or overlooked. That it has not been would, in a timely provision of the decision, more readily be assumed.
40 Kirby J concluded at [102] (citations omitted):
The result of this analysis is that prima facie the delay that happened before the Tribunal, in the provision of its reasoned decision in this case, was materially excessive. On the face of things, it deprived the appellants of a "decision" of the type required by the Act. It rendered suspect the reasons, findings and references to the evidence contained in the Tribunal's "decision". The "decision" was not reached by a process that was procedurally fair and just to the appellants. By reason of the delay, the "decision" was presumptively flawed by jurisdictional error.
41 Kirby J rejected the hypothesis of the Minister's case that the Tribunal could remember, assess and evaluate the principal evidence given by the appellants at the first hearing in May 1998 for the credibility findings that it made four years and seven months later: at [103]. At [105]-[106] Kirby J said (citations omitted):
[105] As observed by Callinan and Heydon JJ, one way in which a decision-maker can breach this requirement is if the decision-maker is infected with bias. This is because bias prevents the decision-maker from fairly considering the case before it. By analogy, the delay in this case impaired the Tribunal's capacity to assess the case presented by the appellants, and in particular the Tribunal's capacity to make a proper assessment of the appellants' credibility. As such the requirements of procedural fairness applicable to the Tribunal were not fulfilled.
[106] …I also agree with Gleeson CJ that, in order to make good a claim of unfairness, it is sufficient to establish that there was a substantial risk that the Tribunal's capacity to assess fairly the appellants' evidence, and to carry out its decision-making functions conferred by the Act, was impaired by the procedures adopted by the Tribunal….
42 Callinan and Heydon JJ observed at [161]:
Sometimes the pressures of work on administrators and courts can be very great. The sufficiency of the resources and the number of people to do the work depend upon the funds which governments are prepared to expend on them. Not all people have the same capacity for efficient and expeditious work, including decisiveness itself, as others. Care accordingly needs to be taken before condemning what may, in some cases, at first sight appear to be cases of inordinate delay. Nonetheless, nothing, apart from bias or unfairness, is more likely to bring public administration and the law into disrepute than inexplicable prolonged delay in the disposition of matters. Delay of that kind immediately and inevitably raises questions. How earnest was the consideration given to the matter? Did the maker of the decision truly apply his or her mind to it? Did he or she find it too hard? Was the decision-maker distracted? Was the decision in the end made out of desperation, or a realization that it had at last to be given, regardless of its correctness or otherwise? All of these questions can be asked but not satisfactorily answered in this case. That they cannot does not mean that the decision of the Tribunal can on that account alone be set aside. But it does mean that a reviewing court should scrutinize the decision, if not with a disposition against it, at the very least, with scepticism, especially if, as the decision in this case does, it depends in any way at all upon the assessment of competing claims of fact and credit, and impressions based on demeanour.
43 Callinan and Heydon JJ concluded, inter alia, at [168]-[170]:
[168] In our opinion it is not possible to say that the Tribunal's decision, depending so much as it did, on the credibility of the appellants who gave oral evidence, was made fairly. Their application for review was lodged on 5 June 1997. The decision was delivered more than five and a half years later, on 14 January 2003, and after two sessions of intervening oral evidence separated by a period of about three and a half years. This was not a matter in which the Tribunal merely had to weigh up oral evidence against written evidence. It had to weigh up oral evidence given on one occasion with oral evidence given three and a half years later, as well as the further written material that had come to hand. That is not an exercise that can satisfactorily and fairly be carried out over widely separated serial proceedings.
[169] The outcome of the appellants' application for review of the decision not to grant them protection visas did depend in part at least on demeanour and credibility. The appellants undertook the task of persuading the Tribunal that they did hold well-founded fears of persecution. That in respect of some of the abuses they claimed to have suffered, they admitted fabrication, or were unable to deny collusion, provides no answer to their entitlement to have their other claims and their applications assessed in a comprehensive, unattenuated and not excessively delayed process. Unlike the majority in the Full Court of the Federal Court we are unable to regard the possibility, indeed, even the likelihood if that be the case, of the consultation of contemporaneous notes and tape recordings of the proceedings, as a satisfactory substitute for the observation and formation of impressions of persons in the flesh, and the timely personal commitment of these to paper as part of the process of making a decision in the light of the materials supplied to the Tribunal and all the arguments advanced to it.
[170] It is right, as Finkelstein J in dissent said in effect, that what appears to be a summary only, without analysis, of the transcript erodes confidence in the findings of fact of the Tribunal. Demeanour was clearly of some relevance here. One example suffices to make the point. The Tribunal purported to be influenced by the daughter's failure to display signs of trauma or concern while recounting the threats she said were made to her on her way to church, and her parents' reaction to her recounting of the incident. This is a matter of some subtlety. To delay committing to paper a recollection of this evidence until a long time afterwards runs a real risk of failing to recapture and give effect to that subtlety.
44 NAIS, properly read, does not have the proscriptive effect, and consequences in this case, as contended for by the appellants. Rather, as apparent from NAIS, whether a delay is one which creates a real and substantial risk that the Tribunal's capacity to assess an appellant's evidence was impaired necessarily involves an examination and consideration of the individual circumstances of each case. As stated by the Full Court in Frugtniet v Tax Practitioners Board [2019] FCAFC 193 at [39] per Perry, Moshinsky and Lee JJ (emphasis added), "the question is ultimately whether in all of the circumstances the procedure adopted by the decision-maker was fair".
45 As Markovic J observed in BIX15 v Minister for Immigration and Border Protection [2017] FCA 1116 at [43] (BIX15):
Not every delay will cause unfairness to an applicant resulting in a finding of jurisdictional error. The delay must, to adopt the words of Gleeson CJ in NAIS, be one which creates a real and substantial risk that the Tribunal's capacity to assess an appellant's evidence was impaired. In the present case the delay between the time of the first hearing and the delivery of the Tribunal's decision was around 22 months. That falls well short of the period considered by the High Court in NAIS of over four years. However, it is in my opinion an unacceptable or, as described by the primary judge, an inordinate delay.
46 Markovic J's observations were cited with approval by Griffiths J in CQV16 v Minister for Immigration and Border Protection [2019] FCA 1098 (CQV16) at [76]. For examples of the application of the relevant principles, see: CQV16; SZQUY v Minister for Immigration and Citizenship [2012] FCA 856; and SZKJV v Minister for Immigration and Citizenship [2011] FCA 80, where the delay in delivering the Tribunal's reasons were twenty-one months, one year and eight months and eight months respectively.
47 As will be readily apparent, there are factual distinctions between NAIS and this case. Two are uncontroversial.
48 First, the delay in NAIS was four and a half years, which is vastly longer and more egregious than in this case, which involved a fourteen month delay. The delay in NAIS was described as "inordinate": at [3] per Gleeson CJ. It was described as a "very exceptional case": at [174] per Callinan and Heydon JJ, and see [115] per Kirby J. Given the concerns which arise from a delay as explained in NAIS, the length of the delay is necessarily a relevant consideration. This must also necessarily affect the context in which the conclusions were expressed in NAIS. The matter is not to be approached, as the appellants did, by applying various statements from NAIS, absent a consideration of the circumstances particular to this case.
49 Second, as is apparent from the passage recited above at [43], in NAIS the Tribunal was in a situation of comparing and weighing up oral evidence given on different occasions (which were a considerable time apart, being three and a half years, with the last occasion being held over a year before the decision was delivered), which does not arise in this case. This existence of two hearings was also part of the factual circumstances in BIX15.
50 A third matter of distinction relates to the appellants' assertion that this case turned largely on credit findings which involved demeanour based assessments. The primary judge rejected the submission. A proper reading of the Tribunal's reasons reflect he correctly did so. The Tribunal's references, inter alia, to the first appellant struggling to give specific examples of matters the subject of the claims, and the Tribunal's remarks that the evidence was vague or unpersuasive, unfocussed or repetitive, when read in the context of the reasons, are not based on an assessment of the first appellant's presentation or demeanour. As the primary judge concluded at [96], "[f]or example, the use of 'impression' by the Tribunal (at [30] and [61]) amounts to no more than the Tribunal expressing its own opinion. It is not a reflection of the Tribunal's assessment of the [first appellant's] presentation of the evidence. The fact that the evidence was vague, unsubstantiated and lacking in context (i.e., deficient in detail) led to the impression - not the way in which the first [appellant] presented her evidence". The Tribunal's reasons detail the bases on which it did not accept the various claims made. The Tribunal gave detailed reasons for the adverse credibility findings it made on each of these various aspects of those claims. The Tribunal's findings were not simply "bland assertions": BIX15 at [47].
51 It is necessary to refer to some of the specific submissions advanced by the appellants.
52 The appellants relied on the fact that the Tribunal did not refer to the delay, for example, by reference to having listened to the audio of the hearing or accessing the transcript of it, and gives no explanation for the delay. Although that may be accepted, the delay is patent on the face of the reasons, as at the outset the Tribunal sets out the relevant dates of the hearing. Moreover, there was evidence that the Tribunal was aware of the delay as it had written to the parties inviting further submissions. No error has been established in the primary judge referring to that correspondence as reflective of the Tribunal's awareness of the delay and its concern to take steps to provide the appellants with a further opportunity to present their case. It can be inferred that the Tribunal was conscious of the effect of the delay. In any event, contrary to the appellants' contention, NAIS does not prescribe if there is any delay that there must be a public acknowledgement of any delay in the manner contended. That any delay has not affected the decision can be manifest to the parties and the general public in other ways (for example, demonstrated by the reasons for the decision: see Expectation at [71]-[73]).
53 The appellants also submitted, in effect, that if the Tribunal in its reasons does not expressly refer to the delay and what steps it took, for example, listening to the audio of the hearing or reading the transcript, then the Tribunal's reasons (regardless of whether they are detailed) are irrelevant to the issue to be determined. This was said to be based on an observation by Callinan and Heydon JJ in NAIS when describing the Tribunal's reasons that "the Tribunal gave an account in detail of what the appellants had said and claimed at the first oral hearing": at [148] (emphasis in submissions). It is correct, as the appellants submitted, that the reasons in NAIS were described as detailed, and nonetheless, that was not sufficient to displace any suggestion in that case that the decision maker had fallen into error: see, for example, the reasons of Callinan and Heydon JJ at [168]-[170] recited above at [43]. As is apparent from their Honour's reasons, the circumstances of the individual case were considered. However, it cannot be extrapolated from that, as the appellant has suggested, that whenever there is an argument as to delay and the effect thereof (regardless of the length of the delay and circumstances of the case), that the Tribunal's reasons are necessarily irrelevant to that consideration. It was not suggested in NAIS that the content of the Tribunal's reasons are not relevant to the issues that arise in relation to considering a ground of appeal based on delay, if the reasons do not explain or address the delay. Nor is it suggested in NAIS that there is only one way in which the countervailing considerations arise. As Kirby J said at [88], recited above at [39], the delay may mean that it "may then be necessary to say why the evidence of a witness is believed or disbelieved, in effect to demonstrate that any countervailing evidence has not been forgotten or overlooked. That it has not been would, in a timely provision of the decision, more readily be assumed": and see Expectation at [71]-[73].
54 The appellants also submitted that there is "simply no contrary evidence put on" by the respondent in this case, such as evidence that "the particular tribunal member was a part-time member and only did five decisions that year, for example," to rebut the presumption that the decision is flawed. In so far as the appellants' submission is that as there is an issue as to a delay, in the absence of an explanation of the delay in the reasons, the respondent needed to call evidence to discharge an evidentiary onus, the submission cannot be accepted. It is not borne out by a reading of NAIS. The submission appears to be based on the observation of Kirby J in NAIS at [102], recited above at [40], that the decision is "presumptively flawed" because of the delay. From that the appellants submitted "the evidentiary onus shifts and there's simply no contrary evidence put on" by the respondent. Kirby J's statement must be read in its context, which included that NAIS was described as an exceptional case (as noted above at [47]). The appellants also appear to rely on the observations of Gleeson CJ at [7], recited above at [38]. Again, that must be read in context. For example, Gleeson CJ at [10] concluded that (emphasis added) "[t]he delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal." As previously observed, the length of any delay is necessarily a relevant consideration in determining whether it is causative of error.
55 The fourteen month delay in this case, while very unfortunate given the nature of the hearing, is different from a delay of four and a half years in the circumstances of NAIS, with the consequences that would necessarily flow from such a delay. The issue of whether the delay in this case created a real and substantial risk that the Tribunal's capacity to assess the appellants' evidence was impaired necessarily involves an examination and consideration of the individual circumstances of this case: cf BIX15 and CQV16. The issue is whether, in all the circumstances, the procedure adopted by the Tribunal was fair.
56 The appellants have not established any error in the primary judge's reasoning. No error has been established in the primary judge considering the reasons of the Tribunal in assessing the ground of appeal before it.
57 As the primary judge observed, the Tribunal explained its approach to credibility: at [28]-[30]. Although the appellants described that there was a "perfect storm" and the need for caution as to credibility, it is unclear how that was said to feed into the submission as to delay. The description given by the appellants, including as to the circumstances in which the first appellant gave evidence, were taken into account by the Tribunal and allowance made for that. The Tribunal was satisfied that the appellants had "ample opportunity to present their claims and evidence": at [29].
58 On a proper reading of the Tribunal's reasons, the primary judge's description that they are "extensive, detailed and forensic" at [106], is accurate. As explained by the primary judge, the Tribunal set out in significant and forensic detail the documentary evidence that the appellants had provided and made numerous references to what was discussed at the hearing. The primary judge concluded that "it is apparent from the Tribunal's decision that it was able to recollect in significant detail (whether by reference to an aid or not) what transpired in the hearing": at [92].
59 A consideration of the Tribunal's reasons reflects that it refers to the oral evidence, which was summarised in respect to relevant topics. This included reference to the topics in which the Tribunal asked the appellant questions and the responses given. In some instances, the Tribunal described why it asked particular questions, for example, as a result of it being puzzled by an answer which had been given: see, for example, [55], [61] and [78]. On occasions the reasons refer to certain words used that are quoted from the oral hearing: see, for example, [49] and [101].
60 As explained above, the Tribunal's reasons detail the bases on which it did not accept the various claims made and on which it made adverse credibility findings.
61 The appellant's reliance on two passages in the Tribunal's reasons, at [65] and [11], to demonstrate error in recollection by the Tribunal, is not borne out on a proper reading of the reasons read as a whole. The primary judge at [100]-[103] (set out above at [20]), having recited the evidence, concluded that the Tribunal's statement at [65] is not incompatible with what the first appellant stated at the hearing, and explained the reason why that was so. The appellants have not established any error with that reasoning.
62 The appellants' submission that [11] of the Tribunal's reasons "implicitly" impugned the appellant's credibility is not established. As the respondent submitted, there is no adverse finding in [11] or elsewhere in the decision (by inference or otherwise) against the first appellant arising out of her evidence on this topic (that she lived in Sahinbey or that the town had around 1,000 inhabitants).
63 As to the appellants' submission about the workload of the Tribunal, as explained by the primary judge, and noted above at [22], there is nothing in the Tribunal's reasons to support any assertion that it was an issue.
64 There is no error established in the primary judge's reasons. A consideration of the reasons in this case reflect that there is no basis to justify a conclusion the procedures followed in the Tribunal resulted in any unfairness to the appellants. Rather, a consideration of the relevant principles in the circumstances of this case reflect that there was no jurisdictional error of the kind identified in NAIS as a result of the fourteen month delay in the Tribunal delivering its decision.