SZKJV v Minister for Immigration and Citizenship

claims of religious persecution 5 The appellant claimed to have been discriminated against in China as a result of her involvement with an underground Christian church group. The appellant claimed that, in July 2006 some of the members of this church group were arrested and they gave the names of other members of the group, including hers, to the police. The appellant claimed that she was subsequently taken into police custody for two days and was tortured, beaten and molested. However, she was released by the police because they "did not have enough evidence to charge [her]". 6 Between August and October 2006, the appellant claimed that she left China and went to Singapore with her godmother so she could recover and seek protection there. Soon after her return to China in October 2006, she claimed that the police visited her at her home and delivered a letter stating that she would be in trouble if she continued with her activities with the Christian church group. 7 The appellant claimed that she needed to escape from China because of her fear of the police. Upon her arrival in Sydney on a visitor's visa, the appellant stayed at a place which she said she believed was an ordinary hotel. In fact, it turned out to be a brothel and, as a consequence, the appellant was arrested and placed in immigration detention. She lodged her application for a protection visa soon thereafter.

the TRIBUNAL AFFIRMS THE DELEGATE'S DECISION - APPELLANT NOT A CREDIBLE WITNESS 8 While the Tribunal was satisfied that the appellant exhibited a knowledge of Christianity, it was not satisfied as to the veracity of her other claims. In particular, it did not accept that the appellant had attended underground Christian church meetings or activities in China, that she was warned, arrested or harmed by the police because of her religion, or that she tried to seek protection in Singapore. 9 It also did not accept that the appellant took leave from her employment for the reasons claimed, or that she had to bribe officials in China to get her passport, or that she was of interest to the authorities in China for the reasons she claimed. Furthermore, the Tribunal did not accept that the appellant feared that members of her family would suffer harm or harassment from the authorities because of her involvement in an underground Christian church, should she return to China. 10 In short, the Tribunal was not satisfied that the evidence provided by the appellant to the Tribunal was truthful. Because the Tribunal made this finding, it also did not accept the evidence of those persons she advanced in support of her application. In particular, the Tribunal gave no weight to the evidence of Ms You, who was a friend of the appellant who accompanied her to Australia. It concluded Ms You's evidence was not impartial. 11 The Tribunal therefore concluded that there was no plausible evidence before it that the appellant had suffered, or will suffer, persecution in China from the authorities, or anyone else, because of her religion. Accordingly, it affirmed the decision of the delegate.

the federal magistrate finds no jurisdictional error 12 The appellant filed an application for judicial review in the Federal Magistrates Court. That application raised the following grounds: The RRT erred when - 1. - it determined the summons was not reliable evidence … 2. - it dismissed reasonable explanations about the applicant seeking advice in Singapore about help for refugees … 3. - it disregarded Ms [Y]'s evidence but did not find that the evidence was untrue … 4. The RRT decision was contrary to the principles in NAIS v Minister [2005] (228 CLR 470) [Errors in original] 13 At the hearing before the Federal Magistrate, counsel for the appellant did not press the first three grounds. In support of the fourth and remaining ground, the appellant's counsel outlined the circumstances that he submitted gave rise to the application of the principles in NAIS. In summary they were: that a delay of eight months had occurred between the completion of the adjourned hearing on 26 February 2009 and the delivery of the Tribunal's decision on 27 October 2009 which delay was inordinate; that the demeanour and credibility of the appellant and her supporting witnesses was central to the Tribunal's decision; and that there was no explanation in the Tribunal's reasons, or elsewhere, for the eight months delay in delivering its decision. 14 The appellant's counsel also relied upon s 414A of the Migration Act 1958 (Cth) (" the Act"). That section provides: 414A Period within which Refugee Review Tribunal must review decision on protection visas (1) If an application for review of an RRT-reviewable decision: (a) was validly made under section 412; or (b) was remitted by any court to the Refugee Review Tribunal for reconsideration; then the Refugee Review Tribunal must review the decision under section 414 and record its decision under section 430 within 90 days starting on the day on which the Secretary gave the Registrar the documents that subsection 418(2) requires the Secretary to give to the Registrar. (2) Failure to comply with this section does not affect the validity of a decision made under section 415 on an application for review of an RRT-reviewable decision. 15 In response, counsel for the first respondent relied upon the reasoning of Graham J in the Full Court decision of MZXRE v Minister for Immigration and Citizenship (2009) 176 FCR 552; [2009] FCAFC 82 ("MZXRE"). She also submitted that the Tribunal's decision did not involve an assessment of the appellant's demeanour, but rather it turned on clear inconsistencies in her evidence. 16 The Federal Magistrate reviewed the second Tribunal's decision in quite some detail. Her Honour also undertook a comprehensive review of the various decisions of the majority in NAIS (Gleeson CJ, Kirby J, and the joint decision of Callinan and Heydon JJ - Hayne J dissented) and the decision of Graham J in the Full Court decision of MZXRE. Applying the principles outlined in those decisions, her Honour concluded that, in all the circumstances, it could not be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellant's evidence and evaluate her claims was impaired by any delay that had occurred, such that she was denied a fair hearing. Her Honour also observed that the eight months delay in this case was considerably shorter than the equivalent delay in NAIS - four and a half years - and it could not be categorised as inordinate. 17 In reaching these conclusions her Honour had regard to the fact that, while the appellant's credibility was in issue and hence her demeanour must have played some part in that process, the Tribunal's assessment was not based on the appellant's demeanour alone and it did not simply find that her evidence was implausible. Instead, she considered the Tribunal had provided closely reasoned explanations for its findings that the appellant was not a witness of truth, dealing with each of the various aspects of her claims in turn. By way of example, her Honour said this about the appellant's claim she was forced to hide from the Chinese authorities (at [78]): … the Tribunal's reasoning in connection with its rejection of the [appellant's] claims that she was in hiding in China or in Singapore or that she took leave from her job or changed her place of residence to avoid the authorities or harm involved a careful analysis of her failure to mention such claims initially (until the prior Tribunal member asked her) and a lack of consistency between the [appellant's] claims that she was in hiding after which she returned to China with the written chronology of activities she provided to the Tribunal, which among other things indicated that during the time she said she was in hiding she claimed she went door knocking on the street of Guangzhou with friends and handed out pamphlets and evangelised. 18 The Federal Magistrate also held that, while the 90 day period in s 414A provided an indication of the legislature's view as to an appropriate period for the conduct of a review, the question whether, in a particular case, delay gave rise to jurisdictional error of the kind identified in NAIS had to be determined upon the particular circumstances of that case. Finally, in relation to the Tribunal's rejection of the evidence of the witness Ms You on the ground that her evidence was not impartial, her Honour concluded that finding did not involve an assessment of Ms You's demeanour and it was a finding that was open to the Tribunal on the material before it. 19 The Federal Magistrate therefore dismissed the appellant's application for judicial review for want of jurisdictional error.

The CONDUCT OF the PRESENT APPEAL 20 On 10 August 2010, the appellant filed a notice of appeal in this Court which alleged that: 1. Ground 1: Her Honour erred by failing to find that the decision of the Second Respondent involved jurisdictional error of the type identified in NAIS v Minister for Immigration (2005) 228 CLR 470. 2. Ground 2:Her Honour erred by giving insufficient weight to the provisions of s414A(2) in determining whether a jurisdictional error of the nature described in NAIS had occurred in the circumstances; 3. Ground 3: Her Honour misconstrued the statutory framework by construing s414A(2) as merely exhortatory and as reflecting the "government's" intention (at [68] of the Reasons for Decision); 4. Ground 4: Her Honour erred by construing the obiter remarks of Graham J in MZXRE v Minister for Immigration (2009) 176 CLR 552 as authority for the proposition that a delay by the Tribunal of 8 months' in rendering a decision was not unfair, albeit with the reservation that it could not be said that an eight month delay might not never be described as unfair (at [72] of the Reasons for Decision); 5. Ground 5: To the extent that the comments of Graham J in MZXRE supported her Honour's conclusions, then the comments of Graham J and relied upon by her Honour should not be followed in this case as being inconsistent with NAIS nor the statutory standards prescribed in s414A (2) of the Migration Act; 6. Ground 6: Her Honour erred by finding that the extent of the delay was not such as to warrant an inference that the Tribunal members' capacity to assess the appellant (an the witnesses advanced by her) was affected in the manner considered in NAIS (at [75] of the Reasons for Decision); 7. Ground 7: Her Honour erred by failing to find the type of error described in NAIS could be answered by on the basis that the Tribunal's assessment of the appellant (and her witnesses) was not based on demeanour alone or on bland assertions (at Reasons for Decision [76] and [83]). [Errors in original] 21 At the hearing before me on 23 November 2010, Mr Prince appeared as counsel for the appellant and Ms Francois appeared as counsel for the Minister. The submissions of both counsel canvassed essentially the same matters as were raised before the Federal Magistrate.

consideration 22 The seven grounds of appeal (outlined above) revolve around the Federal Magistrate's treatment of s 414A of the Act, the decision in NAIS and the decision of Graham J in MZXRE. I will consider each of these matters in turn. 23 As the appellant's counsel acknowledged before the Federal Magistrate, s 414A of the Act provides an indication of the legislature's view of a "useful benchmark" period of 90 days during which the Tribunal should complete its conduct of a review. However, it also specifically provides in s 414A(2) that a failure to deliver a decision within that period does not affect the validity of a decision. Thus, it was common ground before her Honour that the validity of a decision delivered outside this 90 day period had to be assessed by reference to the circumstances of each particular case. It also appeared to be common ground that, in making that assessment, the principles outlined by the High Court in NAIS provided considerable guidance. 24 I will turn then to the decision in NAIS. In that case, the High Court held by a majority that a decision of the Tribunal was affected by jurisdictional error where there was a lengthy and unexplained delay between the first hearing before the Tribunal and it handing down its decision some four and a half years later. Of significance to this appeal, it was critical to the decisions of the majority that the Tribunal had based its rejection of the appellants' claims upon its observations of their demeanour at the hearings before it. 25 Near the outset of his decision in NAIS, Gleeson CJ observed that: "Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored", but that the "circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare" (see at [5]). His Honour then proceeded to identify the particular problem - the demeanour based findings - that arose in that case as follows: [6] … 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. Finkelstein J pointed out that the second hearing, of 19 December 2001, was convened for only a limited purpose, and commented that, had it not been for the second hearing, it was doubtful if the Tribunal member who made the decision would have recognised the appellants if he had seen them again in late 2002 or early 2003. 26 And further - after observing that some of the Tribunal's findings were not based on demeanour but on the appellants' own admissions - his Honour said: [8] On the other hand, there were a number of examples of findings by the Tribunal, adverse to the appellants, that turned on an assessment of their credibility in circumstances that must have been influenced by the Tribunal's observation of their demeanour. Evidence that was not inherently improbable, or contradicted by objective facts, was rejected as "implausible". The fact that the third appellant (then aged 12) "displayed no signs of trauma or concern" in her evidence at the second hearing (more than a year before the decision) was treated as indicating that her account of an attack, in which her mother intervened, was fabricated. 27 His Honour then emphasised that the fairness of the procedures followed was the overriding consideration. He said: [9] Because the Tribunal's reasons ignored the question of the time that had elapsed between the taking of evidence and the final assessment of that evidence, it can never be known how that assessment was in fact affected by the delay. What must be kept in mind is that the question concerns the fairness of the procedure that was followed. It was an inquisitorial procedure that, in the circumstances of this case, depended to a significant extent upon the Tribunal's assessment of the sincerity and reliability of the appellants. … 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] … 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. … 28 Kirby J also drew attention to the significance of the interaction between credibility findings, based on demeanour, and delay, where he said (at [86]): [86] Even appellate judges, like myself, who are cautious about the significance of demeanour in the assessment of truth-telling, willingly accord to primary decision-makers significant advantages derived from their function in considering all of the evidence, perceiving its parts in relation to the whole and reflecting upon it all, as it is adduced. Such advantages, together with those which demeanour is conventionally held to accord to primary decision-makers, are lost, or significantly reduced, by protracted delay in providing a reasoned decision. 29 After making some further observations about extensive delay sometimes tempting a decision-maker to take a path of easy resolution, his Honour made the following observations: [88] 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. 30 Applying these principles, his Honour held that (at [105]): 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. 31 And further, as to fairness being the overriding consideration, he said (at [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. … The concern of a court, in exercising its power of judicial review and evaluating the complaint of unfairness, is with the procedure followed by the Tribunal. The concern is not, as such, with the decision ultimately reached. For this reason, whether or not the Tribunal was in fact disabled from assessing the appellants' evidence, or whether or not the ultimate outcome was in fact affected, is not determinative. It can reasonably be inferred from the serious delay in this case that there was a real risk that the Tribunal's capacity to assess the appellants' evidence was impaired. As such, the decision was flawed for want of procedural fairness. 32 In their joint judgment, Callinan and Heydon JJ also identified the use of demeanour in assessing the credibility of the appellants' claims, as a critical factor: see at [170] and [174]. Their Honours canvassed a number of ways in which unfairness amounting to a breach of natural justice could arise and said (at [172]): 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. 33 In summary, I consider the critical principles arising from these various decisions of the majority in NAIS are these: where adverse credibility findings, based solely or significantly on demeanour, are combined with a lengthy or significant delay in delivering the decision containing those findings, in the absence of some reasonable explanation for that delay, it can be inferred that the procedures followed were unfair, in the breach of natural justice sense, thereby giving rise to jurisdictional error. 34 Finally, it is necessary to consider the decision of Graham J in MZXRE. In that matter, Graham J was the only member of the Full Court to consider the issue of delay. The other two judges (North and Rares JJ) dismissed the appeal for other reasons. In his decision, Graham J applied the principles outlined in NAIS and held that an eight month delay between the hearing and the decision of the Tribunal in that case, could not be described as unfair (see at [82]). His Honour observed that there will invariably be some delay between the conclusion of a Tribunal hearing and the handing down of the Tribunal's decision, particularly where, for example, a s 424A invitation to comment on information is extended to an applicant after a Tribunal hearing (see at [83]). His Honour concluded that there was an obvious explanation for the delay in that case and that "the delay of eight months was not so extreme that it should be inferred that there was a real and substantial risk that the Tribunal's member's capacity to assess the appellant was impaired" at [83]. 35 Taking into account the principles above, I shall now turn to consider the matters raised in the appellant's seven grounds of appeal. 36 The first ground claims that the Tribunal's decision involved jurisdictional error of the kind identified in NAIS and the Federal Magistrate erred in not making that finding. For the reasons that follow, I do not consider this ground has any merit. 37 First, and most critically, I consider the Federal Magistrate was correct in concluding that the Tribunal's credibility findings against the appellant were not solely, or significantly, founded on an assessment of her demeanour, nor involved "bland assertions", or simple findings of implausibility. Instead, as the Federal Magistrate correctly observed, the Tribunal clearly based its adverse credibility findings: on inconsistencies that it identified in the written and oral claims of the appellant, eg the inconsistencies in dates upon which she claimed to receive a summons/document from the police in China; and the inconsistency between her claims to be in hiding in China and her written chronology provided to the Tribunal where she indicated she was evangelising in the streets of Guangzhou at the same time; and on contradictions between her conduct and her various claims, eg in travelling to Singapore to seek protection and yet soon thereafter returning to China, where she claimed to fear persecution; and then continuing to work in China when she claimed to be in hiding. 38 It may also be noted that the Tribunal gave detailed reasons for the adverse credibility findings it made on each of these various aspects of the appellant's claims and none of those reasons contained, what I consider to be, bland assertions that the appellant's claims lacked credibility, or that they were simply implausible. In other words, while the circumstances were not such as to require it to do so, I consider the Tribunal has met the need identified by Kirby J in NAIS (see [29] above) to: "say why the evidence of a witness is believed or disbelieved, in effect to demonstrate that any countervailing evidence has not been forgotten or overlooked". 39 At this point, it is convenient to deal with a matter that was not raised in the appellant's notice of appeal but was raised in submissions by Mr Prince at the hearing of this appeal. That is, the Tribunal's treatment of the evidence of Ms You. Mr Prince submitted that Ms You's evidence was rejected based on what were, in effect, bland assertions by the Tribunal. I do not agree. The Tribunal dealt with Ms You's evidence in the following way (at [102]): As the Tribunal does not accept that the [appellant] is a witness of truth it also does not accept that the letters from those persons in China described as her mother, her fellow Church sisters/friends in China, including Ms Yao and Ms Min Liu, are reliable evidence of the facts in them. Although a different Tribunal has found that the witness Ms You satisfies s 36(2)(a) of the Migration Act, the present Tribunal is not bound by another Tribunal's decision about Ms You and this was explained to the [appellant] at the hearing. The present Tribunal has given no weight to the evidence of Ms You in this hearing as she is a friend of the [appellant] who waited in China to come to Australia with the [appellant] according to the [appellant's] evidence and the Tribunal does not consider that her evidence is impartial. 40 For her part, the Federal Magistrate dealt with the Tribunal's treatment of the evidence of Ms You as follows (at [81]): Finally, after it rejected the applicant's credibility and did not accept that she was a witness of truth, the Tribunal considered whether, but did not accept that, the supporting documents were reliable evidence of the facts in them. It also considered the evidence of the witness Ms Y to which it gave no weight, as she was a friend of the applicant who had waited in China to come to Australia with the applicant and the Tribunal did not consider that her evidence was impartial. In making this finding the Tribunal had regard to the fact that a different Tribunal had found that Ms Y herself satisfied s.36(2)(a) of the Act. It was however open to the Tribunal to find that Ms Y was not impartial in relation to the applicant's application based on their friendship (not an assessment of her demeanour and oral evidence). 41 I agree with the Federal Magistrate that the Tribunal did not reject the evidence of Ms You based upon an assessment of her demeanour. Nor do I consider it relied on bland assertions that her evidence lacked credibility or was implausible. Instead, having given detailed reasons for rejecting the appellant's credibility, the Tribunal was not willing to give any weight to Ms You's evidence because she was a friend of the appellant's and therefore not impartial. In the circumstances I consider this was a perfectly valid reason to reject Ms You's evidence. In doing so, the Tribunal was acting squarely within its fact-finding role. As such it was quite entitled to reject the appellant's argument about the favourable credibility findings Ms You obtained from the Tribunal that had considered her application for a protection visa. Of course, the weight to be given to Ms You's evidence in the circumstance was entirely a matter for the Tribunal: see Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33] and [36]. 42 Returning to the decision in NAIS, in addition to the lack of reliance on demeanour to found its credibility findings against the appellant, I consider there are some other significant points of distinction between that case and this. They are the extent and effect of the delays concerned. While an eight months delay is unfortunate and is more than twice the benchmark period set by the legislature (see [44] below), I do not consider that, in the circumstances of this case, that delay could be accurately characterised as "lengthy, significant, protracted or serious" - to use the various descriptions adopted by the majority decisions in NAIS. Certainly, the period of eight months is much less than the 54 months delay in NAIS. Indeed, it is only about 15% of it. Furthermore, apart from a quite proper concern for a quick and efficient disposal of applications for protection visas, the appellant has not pointed to any particular circumstances of urgency in this case that might place it within any of the descriptions referred to above. 43 As to the effect of the delay, the various decisions in NAIS show that the critical criterion is whether or not the procedures followed by the Tribunal resulted in unfairness to the appellant. In this respect, the central focus of attention must necessarily be the reasons of the decision-maker. In this case, the Tribunal's reasons are comprehensive and detailed. They extend over some 32 pages, including approximately six pages of findings and reasons. Thos findings and reasons include extensive reference to the evidence and materials and contain carefully reasoned explanations as to why the Tribunal rejected each element of the appellant's claims in support of her application for a protection via. There is nothing on the face of the Tribunal's reasons to suggest that it took the path to easy resolution that Kirby J mentioned in his decision in NAIS. Nor is there any evidence of them being prepared with undue haste, or with a lack of proper consideration to the claims and issues raised by the appellant. In short, I consider there is nothing in the Tribunal's reasons to suggest the delay in this case resulted in any relevant unfairness to the appellant. 44 The second and third grounds of appeal seek to challenge the Federal Magistrate's treatment of s 414A of the Act. In my view, neither of these grounds has any merit. In dealing with that section, her Honour essentially accepted the position put by the appellant's counsel: that it provided a benchmark, but a failure to comply with it did not necessarily involve invalidity, and instead one had to consider the circumstances of each case. Not surprisingly, her Honour proceeded to consider the principles outlined in NAIS and the relevant circumstances of this particular case to conduct that assessment. While I do not consider this has any effect on the relevance of the principles in NAIS, for completeness I would add that s 414A was not present in the Act at the time of the decision in NAIS. 45 The fourth and fifth grounds of appeal seek to challenge the Federal Magistrate's treatment of the decision in Graham J in MZXRE. The short answer to these two grounds is that her Honour did not construe that decision in the way asserted, that is, her Honour did not construe the decision of Graham J as authority for the general proposition that an eight months delay is not unfair. Instead, her Honour observed that the delay in that case: "was occasioned by judicial review and remittal and the matter had been otherwise dealt with reasonably promptly by the Tribunal". In those circumstances, her Honour observed that it was unsurprising that Graham J had found the eight months delay did not result in unfairness. However, I consider her Honour made it quite clear that the question of unfairness had to be assessed on the particular circumstances of each case and she then proceeded to assess those circumstances in this case. 46 The sixth and seventh grounds of appeal raise some further aspects of NAIS which, I consider, have already been dealt with in the first ground above (see [37] to [43]).

conclusion 47 For these reasons, I do not consider any of the appellant's seven grounds of appeal has merit and this appeal must therefore be dismissed. I will hear the parties on the question of costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.