THE APPELLANT'S CONTENTIONS
26 The appellant says that the issues arising in the appeal are:
(a) whether the Federal Circuit Court was required to consider the appellant's submissions;
(b) whether the Federal Circuit Court did consider the appellant's oral submissions made on 11 August 2014, that in substance, the Tribunal had misunderstood the centrality of the appellant's claim that suspicion had fastened upon the appellant and his family because:
(i) they were Tamil fishermen from Udappu;
(ii) who were targeted by the Sri Lankan air force;
(iii) while at sea, off the coast of Mullivaikkal (the LTTE capital);
(iv) in the final days of the civil war;
(v) whilst the LTTE defended Mullivaikkal; and
(vi) which had been cut off by Sri Lankan land forces (and therefore suspected to LTTE weapons traffickers);
(c) whether a delay of 961 days between the hearing at which the oral submissions occurred and the publication of the Federal Circuit Court's reasons for decision, in the absence of any explanation or justification for the delay, or anything displacing the possibility that the oral submission was overlooked, is destructive of any beneficial assumption that the oral submission was taken into account; and
(d) whether there was a denial of procedural fairness.
27 In relation to the delay contention, the appellant understandably argues that a delay of some 2.5 years between oral hearing and publication of reasons without explanation is extraordinary. Although the circumstances in which delay of itself will vitiate decisions are rare, delay can contribute to jurisdictional error or make a decision unsafe, or it can be indicative of one of the recognised heads of jurisdictional error. The appellant relies on NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470, where Gummow J said (at [33]):
By their amended notice of appeal in the Full Court, the appellants asserted that the decision of the [Tribunal] was beyond power (and thus outside the protection of s 474 of the Act … because the [Tribunal] had not bona fide exercised its power, had denied the appellants procedural fairness, and otherwise had not validly exercised its power pursuant to Pt 7 of the Act. Delay itself was not advanced as productive of jurisdictional error; rather, it was treated in the appellants' case as indicative of one or more of the established heads of jurisdictional error.
28 In the same decision, Gleeson CJ said (at [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.
29 That was a case, of course, not of judicial review but, as the appellant acknowledges, one where the decision turned, in part, upon the Tribunal's view of the appellant's credibility drawn from the appellant's evidence. The delay in question in that case was the delay of the Tribunal (391 days). The Tribunal's delay there was variously described by the plurality as being extraordinary, exceptional, very exceptional or extreme. Similarly, in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, the Full Federal Court described (at [75]) a delay of 17 months or 527 days between reservation of judgment and judgment delivery as being 'grossly inordinate'.
30 These observations are not to criticise the learned primary judge, but, as stated in NAIS, per Callinan and Heydon JJ (at [161]), are rather to make a point about 'the sufficiency of the resources and the number of people to do the work [which] depend upon the funds which governments are prepared to expend on them'.
31 Expectation Pty Ltd was a case involving judicial delay, as opposed to delay by a tribunal. A unanimous Full Court said (at [74]):
The problem [of delay] is not restricted to fading memory. A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure - whether from the parties, the management of the Court, the press or parliamentarians. That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction. As was recently said by the Western Australian Court of Appeal in Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 136 LGERA 16, in the course of a valuable review of the significance of delay in the delivery of judgments (at [31]):
" … a long delay can give rise to disquiet … because of the suspicion, on the part of the losing party, that the task may have become too much for the trial Judge and that he or she had been unable, in the end, to grapple adequately with the issues."
32 It is quite apparent, given the statistics relied upon from public reports, and the correctness of which were accepted by the Minister, that the case workload in the Western Australian Registry of the Federal Circuit Court is extreme. It is under resourced. The statistics make this clear, but do not require recitation. As noted by Allsop CJ in Tattsbet Limited v Morrow (2015) 233 FCR 46 (at [2]):
I wish only to add the following additional comments. First, the delay in the production of the decision was, with respect to the judge, unfortunate: over 20 months from final submissions. The practical realities of life as a judge may mean, sometimes, a degree of delay in decision-making. Pressure and volume of other judicial work, complexity and size of the particular decision-making task at hand, a lack, sometimes, of useful assistance from litigants or the profession, and illness or incapacity are but examples of reasons for delay. Some of the reasons may rest in point of fault; some in point of technique. The burdens on judges in a busy trial court can be enormous. Some reasons may be the responsibility of the Court itself, if too much work is given to a judicial officer without any, or adequate, time or facility to undertake reserved judgments. But systems must be made to cope. Whatever the cause of any particular delay (and there was no explanation available here), its consequences must be examined with an eye to the fair administration of justice. I agree with Jessup J that it has been demonstrated here that the delay affected, or can be seen as apparently affecting, the decision-making in question. Generally, some apparent operative effect of the delay is required for appellable error to be shown: Monie v Commonwealth [2005] NSWCA 25; (2005) 63 NSWLR 729 as discussed in MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417; (2012) 191 LGERA 292 at [11]. The conclusion as to the true reason for Ms Morrow's termination was sparsely put. After such a long period, without any evidence in the judgment that the consideration and conclusion were made at a time reasonably proximate to the hearing, and without expressed careful consideration of all the evidence, the conclusion should be seen as flawed. It also had the effect of being, on its face in terms of expression, a contingent finding with the problems involved with such: Wade v Burns [1966] HCA 35; (1966) 115 CLR 537 at 555; and see Tarabay v Leite [2008] NSWCA 259 at [34]- [35].
33 The reasoning of the Full Court in Expectation Pty Ltd (at [71]-[72]) also propounded the proposition that it is incumbent upon a primary judge, in a case of serious delay, to put beyond question his or her reasons that the delay has not operated unfairly against a litigant:
71 In the normal course, statements made by a trial judge of a general assertive character can be accepted as encompassing a detailed consideration of the evidence. However, where there is significant delay, such statements should be treated with some reserve. After a significant delay, a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision.
72 In cases not affected by delay, an appellate court is entitled to assume that the mere failure to refer to evidence does not mean that it has been overlooked or that other forms of error have occurred. However, where there is significant delay, no favourable assumptions can be made. In such circumstances, it is up to the trial judge to put beyond question any suggestion that he or she has lost an understanding of the issues. Where there is significant delay, 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 necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses (Hadid v Redpath (2001) 35 MVR 152 at [34] and [53]).
34 This statement of principle has been cited with approval in many cases since: Johnson Diversey Australia Pty Ltd v Ferenczfy [2013] SASCFC 59 per Gray, Sulan, and White JJ; Terry v Leventeris (2011) 109 SASR 358 per Gray, Sulan, and Vanstone JJ; Haros v Linfox Australia Pty Ltd (2012) 219 IR 177 per Gray, Marshall, and Bromberg JJ. In any event, it binds this Court.
35 The appellant also submits that where there are many other cases of a similar kind, there is also the risk of confusing cases with similar facts. The appellant relies on NAIS where Gummow J noted (at [92]) 'It is a commonplace of decision making that the peculiarities of individual cases may be erased from the memory by later similar cases'. Moreover, the appellant argues that in cases of asylum-seekers seeking Australia's protection, delay can be particularly destructive: NAIS per Kirby J (at [100]).
36 In an application of the relevant principles to the present circumstances, counsel for the appellant points to the fact that the appellant, on 22 July 2013, filed in the Federal Circuit Court an application for judicial review describing handwritten 'grounds', which on their own were legally inadequate. They alleged judicial error, a failure to follow the laws of natural justice and an allegation of bias. That they were legally inadequate was not surprising, as the appellant spoke no English, had no understanding of applicable procedure and was, at that point, without legal assistance. His last complete year of schooling was year 10.
37 This was followed by the appellant filing, on 31 July 2014, an apparently identical affidavit, attaching a document, para 2 of which stated, by way of apparent clarification and argumentation of the 'nature justice' ground, that:
The [Tribunal member] failed to exercise his proper jurisdiction by not examining the implications of my of the [sic] death of my brother and the presence of my family at Mullivaikkil in the Eastern Province of Sri Lanka as seen in paragraph 19, 20, 21, 22, 23 and 24 of the [Tribunal] Report.
38 These paragraphs of the Tribunal's reasons, counsel for the appellant says, describe the appellant's claims that in March 2009, his father and brother travelled to Mullivaikkal for the fishing season while there was a conflict between the SLA and the LTTE. His father and brother had finished their fishing and had landed their boat when they came under fire from the air. The brother was killed in the bombardment and about a month later and, then again one year later, CID officers came looking for the brother and made accusations of involvement with the LTTE. One year later, CID, again, visited the family home and questioned the appellant about his brother's whereabouts, beat him and his father and threatened the appellant. The appellant then went into hiding, during which time the CID came again to look for the brother, prompting the appellant's father to arrange the appellant's passage to Australia.
39 Counsel contends that it is tolerably clear that the appellant was trying to articulate a proposition that the Tribunal had overlooked the significance of the father and the brothers' activities at Mullivaikkal. However, at that stage, his complaint 'remained somewhat Delphic'.
40 However, on 11 August 2014, when the matter was called on for hearing and the primary judge invited the appellant to make any oral submissions, the following exchange was recorded in the transcript:
…
HIS HONOUR: All right. If I can turn to the [appellant]. This is your application for judicial review of a decision of the [Tribunal], affirming a decision of a delegate of the Minister, to refuse you a protection visa.
INTERPRETER: Yes
HIS HONOUR: You have filed an application and affidavits in support of the application. What submissions do you want to make to the court in support of your application?
INTERPRETER: In my case the tribunal did not consider certain things. They considered that I'm Tamil by ethnicity, they considered that, but, however, they failed to consider that I'm a fisherman, who - a fisherman in my village [Udappu], because I've been working as a fisherman six months when the problem - at the place where there's a problem and six months where there is a place where there is no problem so they failed to consider that I was a fisherman.
HIS HONOUR: Yes.
INTERPRETER: And also I have certain written submissions that I would like to submit to the court.
HIS HONOUR: Yes. All right. Mr Gerrard, have you seen these?
Mr GERRARD: I received them about half an hour ago, which is sufficient, your Honour.
HIS HONOUR: Yes. All right. I will mark the written submissions as exhibit B.
HIS HONOUR: All right. Is there anything else that the [appellant] wishes to say in support of his application?
INTERPRETER: The tribunal failed to consider a few matters. That before the problem there was no army but we were fisherman and we working [sic] in the area where there is a problem. However, after the problem resolved, they have set up the camp, army camp-army camp in my village so because they have set up the army camp in my village, so they are now consider [sic] all those who are Tamil fisherman are closely related to LTTE where they are helping the LTTE and also helping the LTTE to transport the weapons from one place to another place. Because of this suspicion ground, they are threatening and looking for my father, my brother and for me.
HIS HONOUR: Yes.
…
INTERPRETER: And this is what I tried to say to the court [Tribunal] because my matter was not seen properly and examined properly because if I return back to my country there will definitely be a biggest problem [sic] because the army camp is set up near to - in our village so I'm kindly requesting the court to give me a new [Tribunal] for me …
41 There was a subsequent hearing, as noted, on 17 July 2015, but as the appellant says, the purpose of that hearing was to provide an opportunity for the parties to make submissions on the relevance, if any, of the High Court's decision in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610.
42 The topic in bold (in [39] above) was repeated in a letter from the appellant to the primary judge in which the appellant sought:
permission to place my oral submissions by having an English translation as I am not competent to state what I have in Mind in a legal and proper manner, as I do not have any legal representation in this case to speak on my behalf.
43 The appellant went on to say:
The facts of my case proves that as a Tamil in Sri Lanka and belonging to the social group by the fact that I was a fisherman and a suspicion that on the basis of my political opinion of seeking self-determination for Tamils living in Sri Lanka I have a well-founded fear that I will be persecuted if I return back to Sri Lanka, which is my country of birth. Tamils living in my village travelled to the Northern Province of Sri Lanka for fishing, and therefore were suspected of having connections with the LTTE who fought for a separate state for Tamils in Sri Lanka.
(emphasis added)
44 The appellant submits, but for the oral submission made on 11 August 2014, it may not have been apparent why, on the appellant's case, being a Tamil fisherman from Udappu was so significant. Had that link been supplied more clearly, it could have provided an explanation for the Tribunal's disbelief that the Sri Lankan authorities would be interested in the appellant simply by family association.
45 The submission was not just an abstraction. The appellant says there was a concrete basis in the evidence to which the Tribunal had referred in passing, but the real significance of which the Tribunal did not appreciate or develop. (Although I note that the passage the appellant refers to was in fact made by the delegate and not the Tribunal.) The delegate had noted specific country information that:
While Udappu is nowhere near the frontlines of the civil war, the conflict nevertheless reaches into every aspect of life. As Tamils, the fishermen are automatically treated by the security forces as supporters of the LTTE and suspected of smuggling. Heavy restrictions have been placed on their fishing activities, leading to a loss of income. Locals are subject to constant harassment by police and military personnel who conduct frequent sweeps through the village. Over the past year, several people have been murdered or abducted - in all likelihood by military-sponsored death squads that have killed or 'disappeared' hundreds throughout the island.
46 There was also the contemporaneous reference that:
June 2006: Fifteen persons, including a woman who is resident of an eastern province, were taken into custody in a search in Udappu. Fishing huts were also searched by the police and soldiers of the Sri Lankan army. Most of the arrested had been employed in the fishing huts.
47 One of the difficulties I raised with counsel in the course of the appeal was that there appears to be no evidence of the matters stated before the primary judge from the bar table by the appellant. They are simply assertion. Nonetheless, as the appellant observes, nowhere in the primary judge's reasons is to be found any reference or acknowledgment to the appellant's oral submission that suspicion had fastened upon the appellant and his family because, 'as fishermen from Udappu, they were suspected of weapons smuggling for the LTTE'. As counsel for the appellant fairly submits, an oral submission was self-evidently vulnerable to being forgotten or crowded out by the written materials. But counsel submits that in the circumstances of an unexplained 961 day delay between the substantive hearing of 11 August 2014 and the publication of his Honour's reasons on 29 March 2017, it is not safe to assume that his Honour did take them into account, although not specifically referring to them.
48 Counsel argues that the appellant's oral submission was meaningful in its context. The appellant was doing the very best he could to explain himself. It could have supplied an additional dimension to some of the evidence otherwise found unpersuasive by the Tribunal and supplied a rational explanation for why the authorities might have maintained an interest in the appellant and raised the possibility of why the authorities might have disbelieved that the brother was in fact deceased. More fundamentally, the appellant was entitled, counsel submits, to a proper, genuine and realistic consideration of his case and submission. As Gleeson CJ pointed out at [10] in NAIS:
in a case of failing to give a hearing when a hearing is required, the appellant does not have to demonstrate that if heard, he would have been successful. The loss of an opportunity is what makes the case one of unfairness.