Grounds of review 2 and 3: absence of procedural fairness because of failure on part of Tribunal to engage with evidence
25 In respect of ground 2, the applicant submitted in summary:
At the Tribunal hearing the Senior Member substantively engaged with numerous witnesses before the matter was adjourned part heard after two weeks.
The question arises as to the characteristics of a decision which lead the reader to infer that the Tribunal's capacity for competent evaluation of the evidence before it was disabled. Procedural fairness will not be given if there was unreasonable delay such that there was a real and substantial risk that the Tribunal's own capacity for competent evaluation was diminished: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 (NAIS).
Principles in NAIS are not only relevant where the credibility or demeanour of a witness is in issue: NAIS at [10], [11], [172].
There was a delay from the conclusion of the hearing until the decision of four months and 22 days.
There is no reference at all in a decision exceeding 38 pages to oral testimony of the applicant, Ms Abiol Mawn or Dr Gary Banks in the case.
While it is possible that the Tribunal did not consider the oral evidence was valuable or relevant, the Tribunal did not expressly make a finding to that effect.
Two important examples of oral evidence to which the Tribunal did not advert in its decision were Ms Mawn's testimony about the changes she had observed in the applicant in the prior two years, and expert evidence of Dr Banks in respect of the predicted risk of reoffending by the applicant.
If nothing of relevance was said during oral testimony, the question arises as to why Counsel for the Minister cross-examined witnesses extensively during that testimony
26 In respect of ground 3, the applicant submitted, in summary:
Key authorities in support of the principle that evidence given before the Tribunal must be given proper, genuine and realistic consideration are NAIS and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164.
"Consideration" requires active intellectual engagement.
When there is an absence of any mention of evidence in a decision, a stronger inference is open that there was not an active intellectual engagement with that evidence by the decision-maker. This was particularly relevant in respect of evidence of Ms Mawn and Dr Banks.
27 In my view, neither ground 2 nor ground 3 has merit. I have formed this view for the following reasons.
28 The applicant directed my attention to the decision of the High Court in NAIS, as a case involving a four and one half year delay following the hearing of the main evidence in the context of inquisitorial proceedings before the then Refugee Review Tribunal.
29 In that case, Gleeson CJ said:
5. 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.
…
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. Appropriately, effort was directed to a search for independent verification of the claims they were making, and objective justification of the fears they were expressing. Yet ultimately the procedure directed attention to the Tribunal's assessment of them as witnesses in their own cause. 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. In a case of failure to give a hearing when a hearing is required, the person complaining of denial of procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness. The appellants in this case do not have to demonstrate that the Tribunal's assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal's capacity to make a proper assessment of their sincerity and reliability. 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.
(Emphasis added.)
30 Kirby J in particular observed:
78. As numerous authorities attest, the issue presented by the complaint of delay is rarely, if ever, about the delay itself. The issue is ordinarily about the effect of the delay upon the decision that is impugned.
31 Callinan and Heydon JJ materially found:
172. The answer to these arguments is that unfairness can spring not only from a denial of an opportunity to present a case, but from denial of an opportunity to consider it. Failure by the Tribunal to consider a case can arise not only from obstruction by the Tribunal of its presentation but also from self-disablement by the Tribunal from giving consideration to that presentation by permitting bias to affect its mind: either way the case is prevented from having a fair impact on the Tribunal's mind. 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.
173. The circumstances of this case are specific to the Refugee Review Tribunal.
174. This is in our opinion a very exceptional case. The facts, it is to be hoped, are extraordinary. It is one in which the Court is bound to hold that the proceedings have not been fairly conducted, by reason of the delays, both from beginning to end, and between each episode in them. We cannot accept that the only relevant delay is that which occurred between the second oral hearing and the giving of the decision. This is so because the decision was concerned with demeanour on two occasions, long separated in time, and each requiring to be related and compared to the other, and weighed with a considerable volume of written evidence.
(Emphasis added.)
32 As was reiterated in NAIS, it is only exceptional cases where the delay in delivering a decision can give rise to an inference of procedural fairness. As a general proposition, a period of four months and 22 days is not a lengthy delay for delivery of reasons for decision, particularly where the matter raises issue of novelty and complexity (as in this case). The reasons of the Tribunal are extensive, and demonstrate significant engagement by the Tribunal with material before it including expert medical evidence of Dr Banks and clinical psychologist Ms Catherine Bone. I am not satisfied that a delay of four months and 22 days by the Tribunal in delivering its decision in this case is such that the Tribunal was unable to, in the words of Kirby J in NAIS at [106], remember, assess and evaluate the evidence offered.
33 The applicant also submits that the Tribunal may have confused its decision-making in this case with another decision delivered on the same day, namely Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561. The basis of this claim was the applicant's contention that the Senior Member used similar language in its reasoning in both cases. In particular, similar language was used by the Tribunal:
in this decision at [74] and in Bartlett at [43];
in this decision at [75] and in Bartlett at [44];
in this decision at [76] and in Bartlett at [45]; and
in this decision at [95] and in Bartlett at [50]
34 In my view, this submission has no merit. The use of similar language in these paragraphs is suggestive, at worst, only of a lack of variety of terminology in his reasoning on the part of the Senior Member. Both cases had similar factual circumstances, including a long list of drink driving and unlicensed driving offences, substance abuse issues which were the cause of the offending, and a failure on the part of the respective applicants to address those issues. As Counsel for the Minister correctly submitted, notwithstanding the use of similar language, the Tribunal went on to consider the individual facts of each case. I reject the proposition that the Tribunal was confused merely on the basis of common language in these cases.
35 The applicant claims, in substance, that the absence of specific mention by the Tribunal in its decision of the oral evidence of the applicant, Dr Banks and Ms Mawn was indicative of the failure of the Tribunal to properly consider their evidence, and further attributes this absence of consideration to the elapse of time between the hearing and the delivery of reasons. In particular, the applicant referred in his submissions to the oral evidence of Dr Banks and Ms Mawn.
36 As the Full Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(Emphasis added.)
37 The observations of the Court in WAEE are on point in this matter. The Tribunal clearly gave detailed consideration to the issues before it, the submissions of the parties, and the expert evidence. The applicant conceded that the Tribunal extensively engaged with Dr Banks and Ms Mawn during their oral testimony - as I suggested to Counsel for the applicant during the hearing, a more likely inference to be drawn from the absence of reference by the Tribunal to that oral evidence in the reasons for decision was that the Tribunal simply formed the view that that evidence was immaterial.
38 A more useful question is whether there was anything in the oral evidence of the applicant, Dr Banks and Ms Mawn of importance such that, if the evidence was overlooked by the Tribunal, the result was jurisdictional error on the part of the Tribunal.
39 Counsel for the applicant submitted that the importance of this evidence is reflected by the length of time spent by Counsel for the Minister cross-examining them. In my view, however, the extent to which the Minister's Counsel cross-examined those witnesses at the Tribunal hearing is of little relevance to the importance of that evidence. Another and more realistic inference for me to draw is that Counsel for the Minister at the Tribunal hearing was simply testing the evidence of those witnesses.
40 In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, Robertson J referred to the need of the Court to be cautious before concluding that the Tribunal overlooked a piece of evidence (at [28]) and explained:
26. The jurisdictional error of 'ignoring', or failing to be aware of, or totally disregarding, relevant evidence has been traced to a general duty implicit in a statutory power of decision, that the decision-maker "is required to make his decision on the basis of material available to him at the time the decision is made" (see Mason J in Peko-Wallsend (supra) at 45, also Gibbs CJ at 30, Dawson J at 71, Brennan J at 67 and Deane J at 70).
27. It has been suggested that a statutory duty to be aware of the evidence submitted by an applicant is subject to a qualification that the evidence is material to the issues to be decided and is not 'insignificant or insubstantial' (cf. Gibbs CJ in Peko-Wallsend (supra) at 31). To the same practical effect, are suggestions that the materiality and significance of allegedly overlooked evidence should be considered, before drawing conclusions from the decision-maker's reasons as to whether, in fact, the decision-maker was unaware of, or uninformed as to, that evidence (cf. Sackville J in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at 165 and following). These tests also come into play at a discretionary level, since relief will be refused if the Court is satisfied that the overlooking of evidence was of no possible significance to the decision which was made (cf. SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28]- [29], [55]-[59], [91], Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at [85]-[86]).
41 The transcript of evidence in the Tribunal indicated that Ms Mawn had been in a personal relationship with the applicant for some time, and had contemplated marrying him. Her evidence included that the appellant had a propensity to drink large quantities of "strong liquor" (AAT transcript, 22 March 2017, page 80, lines 32-34; page 81, lines 34-47; page 82, lines 6-15), and that the appellant's friends influenced him to drink alcohol (AAT transcript, 22 March 2017, page 84, lines 10-13), although she thought that he had stopped drinking when he was detained on Christmas Island (AAT transcript, 22 March 2017, page 82, lines 23-25). This evidence was consistent with the Tribunal's view that the appellant had serious issues with alcohol, and that he was at real risk of relapsing into abusing alcohol in the future and committing further offences of a dangerous nature (at [95]). While Ms Mawn described her perception of an improvement in the applicant's demeanour during the two years prior to the AAT hearing, in particular his cessation of drinking, it was clear that from the material before the Tribunal that this period coincided with the applicant's time in detention on Christmas Island (a period described by the Tribunal at the hearing - and not challenged by Dr Banks - as a time of forced abstinence in a "dry environment"): AAT transcript, 22 March 2017, page 72, lines 1-3. The Tribunal made factual findings based on medical expert of Dr Banks, including that the applicant required psychological therapies to address the issues which were causing him to abuse alcohol, and that he was at risk of relapse into his previous alcohol abuse.
42 Such findings were open to the Tribunal. If the Tribunal did not advert to Ms Mawn's perceptions of the applicant, I can infer that this was because the Tribunal preferred the medical evidence relating to the applicant's condition and did not attribute Ms Mawn's evidence any weight.
43 In respect of the oral testimony of Dr Banks at the Tribunal hearing, Dr Banks was examined in chief by Counsel for the applicant in relation to matters including the applicant's conviction of sexual assault and the risk of the applicant reoffending. The examination extended over several pages of transcript. However, the exact problem arising from the Tribunal's alleged overlooking of Dr Banks' evidence is not apparent, and not identified by the applicant.
44 While the applicant submits that Dr Banks made concessions about the applicant's scoring on one test, which lowered the score and hence the five-year recidivism risk, the extent to which this evidence could have affected the Tribunal's conclusion concerning the applicant's ongoing risks relating to alcohol abuse and the potential for reoffending is not apparent. I make this observation in the context of the Tribunal's detailed consideration of Dr Banks' expert evidence and the reasons given by the Tribunal. In particular, I note the Tribunal's observation at [94] that the applicant had demonstrated limited insight into his alcohol abuse, and there was no concrete evidence before the Tribunal that the applicant had sufficiently and appropriately managed this issue, and the "real risk of relapsing into abusing alcohol abuse in the future" which did not appear to be disputed in oral evidence by Dr Banks.
45 Further, and in any event, it is evident from the reasons of the Tribunal that it gave genuine and proper attention to the submissions of the applicant in the Tribunal proceedings in respect of the risk of recidivism. At [46] of its reasons, the Tribunal summarised the applicant's case in respect of the risk of recidivism, and the applicant takes no issue with that summary in this appeal. At [48], the Tribunal acknowledged the contention that the applicant's history did not place him in a high risk category of recidivism and danger. Importantly, at [49] the Tribunal disagreed with the applicant's approach to the assessment of danger as being too formulaic and with an overly dominant focus on what had occurred in the past, and further observed:
54. As will be explained in detail later in these reasons, this Applicant's issues with alcohol remain unresolved. There is no evidence of him being under the care, treatment or supervision of a psychiatric or psychological therapist for his predilection towards abusing alcohol. In the absence of any such treatment or management plan addressing this issue, I am not comfortable in concluding the Applicant does not present a risk to the Australian community.
46 The Tribunal's criticism of the "formulaic" approach of the applicant could reasonably extend to the applicant's position in respect of the oral evidence of Dr Banks concerning the applicant's "score" of the risk of recidivism.
47 Finally, as Counsel for the applicant submitted in the current proceedings, it is evident from the Tribunal's reasons that it was cognisant of events at the Tribunal hearing. I note in particular the following paragraphs:
88. Dr Banks is in no doubt that was he to remain in Australia, the Applicant's issues with alcohol (and thus his propensity to re-offend and constitute a danger to the Australian community) warrant "...access [to] psychological therapies to commence addressing these issues." This recommendation led me to a segway at the hearing causing me to - given the novelty of this application - suggest to the parties some type of "agreed outcome" whereby the Applicant be allowed a visa but "conditioned" in the sense that it contained something akin to reporting requirements, much like a parole order in the criminal courts. The parties duly obliged the Tribunal and followed up with this request, for which the Tribunal is grateful. I shall discuss the outcome of that segway later in these reasons.
…
96. As mentioned earlier in these reasons, at the hearing I enquired about the possibility of granting the Applicant a protection visa with conditions. My specific thought involved a visa conditioned by, for example, compulsory reporting requirements (similar to a parole-based order) with perhaps an agreed regime of testing for the presence of alcohol and/or illegal substances in the Applicant's system.
97. Given the novelty of the present application and the possibility of perhaps a novel solution, the parties agreed to adjourn the hearing for a couple of weeks to explore the possibility of a conditional visa…
(Footnotes omitted, emphasis added.)
48 In this respect, it is unlikely that the Tribunal had regard to some, but not all, events which occurred at that hearing.
49 In my view the applicant invites the Court to review the decision of the Tribunal with an eye finely attuned to the perception of error, an approach criticised by the High Court in such cases as Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.