6.1 Alleged breaches of procedural fairness (grounds 1 and 3)
38 Mr Frugtniet submitted, first, that the delay between the date on which the first Tribunal completed its hearing (27 June 2014) and the date on which a decision was given by the reconstituted Tribunal (30 August 2017) meant that the second Tribunal decision was procedurally unfair or was one factor with others which established a breach of procedural fairness. (We note that while the primary judge referred at [26] of his reasons to 7 June 2014, it is agreed on the appeal that the hearing was completed on 27 June 2014: see the agreed chronology.)
39 The circumstances where delay of itself will vitiate an administrative decision are rare: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 (NAIS) at [5] (Gleeson CJ), [174] (Callinan and Heydon JJ); see also e.g. MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82; (2009) 176 FCR 552 at [80] (Graham J). The question is ultimately whether in all of the circumstances the procedure adopted by the decision-maker was fair. Thus, in NAIS the High Court held by majority that the delay (5 years) was so extreme that there was a real and substantial risk that the Refugee Review Tribunal's capacity to assess the credibility of the appellants' evidence was impaired and for this reason the procedure was not fair: NAIS at [10] (Gleeson CJ), [60], [102]-[103] and [106] (Kirby J) and [168] (Callinan and Heydon JJ). As the majority in NAIS said, the delay in that case was extraordinary: NAIS at [2] (Gleeson CJ), [115] (Kirby J), [174] (Callinan and Heydon JJ). Furthermore, while some of the findings of the Refugee Review Tribunal in NAIS adverse to the appellants were based upon their own admissions, importantly, other adverse credibility findings necessarily involved an assessment of their demeanour: NAIS at [8]-[10] (Gleeson CJ); see also at [85]-[86] (Kirby J) and [161], [169]-[170], and [174] (Callinan and Heydon JJ).
40 In this case, the primary judge at [26] rejected the submission that any relevant delay should be measured from the last day of the hearing before the first Tribunal. Rather in his Honour's view, delay could relevantly be measured only by reference to the dates on which the hearing before the second Tribunal took place, namely 15 June 2016 and 15-16 November 2016, and 30 August 2017 when Dr Hughes handed down his decision shortly after the reconstitution decision. As such, his Honour held that there was no significant delay as alleged. It is not clear on what basis the primary judge reached this view. However, as the first Tribunal decision was set aside on judicial review, logically it cannot be said that the period before orders were made remitting the matter back to the Tribunal established that the Tribunal following the remittal had acted in a procedurally unfair way. In other words, the delay to this extent was not attributable to any (relevant) default on the part of the Tribunal.
41 It follows that the relevant "delay" for present purposes is the period of approximately nine and a half months between the conclusion of the hearing before the second Tribunal, on the one hand, and delivery of the Tribunal's decision, on the other hand. While that delay is unfortunate as the Board accepts (first respondent's outline of submissions at [39]), the primary judge rightly held that this does not constitute an extraordinary delay akin to that in NAIS.
42 Secondly, as to the question of whether this was a case in which adverse credibility findings could be said to have been influenced by demeanour, Mr Frugtniet submitted (by analogy with NAIS) that the reconstituted Tribunal should not have made findings about his credit and that of Ms Galvez-Londono without first affording him a further oral hearing. This was particularly so, in his submission, given the seriousness of the finding that he had misled the first Tribunal.
43 There was no statutory requirement under the TAS Act that the Tribunal in a case where it has been reconstituted after holding a hearing must afford the person affected a further hearing. The primary judge's statement to this effect at [28] was not challenged on the appeal and was plainly correct: see by analogy Ahmed v Minister for Immigration and Multicultural Affairs [2001] FCA 506; (2001) 184 ALR 343 at [24] (Hely J) upon which the primary judge relied.
44 The question therefore turns upon whether in all of the circumstances a further hearing was required as a matter of procedural fairness. We agree with the primary judge that no such obligation arose in this case. As the primary judge held at [27], Mr Frugtniet was advised by letter dated 3 July 2017 that the Tribunal would be reconstituted and that it may have regard to any record of the proceeding before the Tribunal before Deputy President Alpins (see above at [19]). Yet Mr Frugtniet made no application for an oral hearing despite having in excess of 8 weeks within which to do so and bearing in mind his legal qualifications and experience in prior litigation.
45 Furthermore, the Tribunal's decision did not rely upon Mr Frugtniet's demeanour in giving his evidence. Rather, as the primary judge also held at [27], the Tribunal "reached its findings based upon an assessment of objective events, findings made by other courts, contemporaneous evidence, and the inherent probability that explanations given by [Mr Frugtniet] at the 2016 hearing were true or correct".
46 This is true also of the findings by the Tribunal at [52] that Mr Frugtniet misled the first Tribunal. These findings were based upon objective evidence, in particular as to the order in which affidavits by the parties had been filed in the 2002 proceedings in the Victorian Supreme Court and their contents (which Mr Frugtniet did not ultimately dispute), together with the inherent implausibility of his explanation that he had merely been mistaken in claiming that he had been the source of the information in question: see above at [32]-[33]. As the primary judge held:
29. This is a case where, to use the language of Ryan J in Abujoudeh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 179, "the approach which led the Tribunal to characterise certain parts of the applicant's claims as implausible, was based on a dispassionate analysis of the content of the applicant's evidence, not the manner in which it was given" (at par [32]). It was thus proper for the Tribunal to reject explanations and answers given by the applicant, and even make findings that he had misled the first Tribunal, without the need for any further hearing. Whilst I accept that the finding that the applicant has misled the Tribunal was serious, it was open to the Tribunal so to conclude on the material before it without the need for a further oral hearing. …
47 Finally, Mr Frugtniet argued that the primary judge should have held that the Tribunal was in breach of procedural fairness in referring at [47] of its reasons to the transcript of the first Tribunal hearing, given that Deputy President Alpins had said at the 2016 second Tribunal hearing that the earlier transcript would not be considered. In this regard, the primary judge accepted:
30. … An examination of the 2016 transcript [before Deputy President Alpins] bears that out [that is, the proposition that the earlier transcript would not be considered]. Moreover, the transcript from the first Tribunal hearing was not put to the applicant in cross examination, and was not tendered, either in whole or in part, by the Board, although its counsel had given notice that it might be relied upon, depending upon the answers given by the applicant in cross-examination. Nonetheless, the transcript is expressly quoted in the reasons of the reconstituted Tribunal … at [47].
48 The passage of transcript from the first Tribunal hearing quoted at [47] of the AAT reasons contains cross-examination of Mr Frugtniet in which he contended, contrary to the finding in Frugtniet [2002] at [12], that he had brought the Supreme Court's attention to his charges and UK convictions in the first affidavit which he filed with the Court. It will be recalled that the Tribunal found that in making that claim in his evidence, Mr Frugtniet had displayed a preparedness to mislead the first Tribunal which it took into account in finding that he was not a fit and proper person.
49 At first blush, it might appear that the circumstances relied upon by Mr Frugtniet in this regard are suggestive of a breach of procedural fairness. However, as the primary judge held:
32. … The transcript was reproduced only to describe the context of the applicant's conduct before the first Tribunal. That conduct had been the subject of renewed cross-examination of the applicant in 2016, without any need to rely upon the transcript from the first Tribunal. The specific paragraph from Pagone J's judgment, as set out above, was expressly put to the applicant by the representative for the Board in 2016 and he was asked whether he agreed with it. He was then directly asked questions about the filing of the second affidavit, and the circumstances surrounding it, and was given, a full and proper opportunity to explain his conduct, both in the witness box and subsequently in submissions. I find that the applicant was well aware of this issue in 2016. Indeed, the very same conduct had formed part of the first Tribunal's decision, which also found that it had been misled by the applicant. The applicant then appealed that finding, without success, before Jessup J: Frugtniet v Tax Practitioners Board [2015] FCA 1066 at [42]-[48].
50 There being no challenge on the appeal to any of the factual findings made by the primary judge at [32], it follows that the primary judge was plainly correct to hold that no breach of procedural fairness had been established in this respect. In particular, Mr Frugtniet was extensively cross-examined at the hearing on 16 November 2016 before the Tribunal on remittal about his earlier evidence before Senior Member Fice (transcript 16 November 2016, AB, Part C, tab 13 at pp. 309.36-332.5) and admitted that he had wrongly claimed that he was the source of the information in question. Furthermore, as also noted earlier, he had a copy of the transcript of the hearing before the first Tribunal and it was open to him to tender any parts of that transcript to correct any propositions put to him in cross-examination if he so wished.