Case: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470
Outcome: applied
The decision of the High Court in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470 provides a useful illustration of the fine lines that sometimes have to be drawn. In that case, a husband, wife and their daughter applied for protection. The application was refused. On 5 June 1997 they applied to the Tribunal for review. The Tribunal held oral hearings on 6 May 1998 and again on 19 December 2001. However, it did not hand down its decision affirming the delegate's decision until 14 January 2003. The Tribunal said that it did not accept as credible certain claims made, and evidence given by, the applicants. 68 In proceedings for judicial review, the applicants submitted that the delay in determining the review involved a denial of procedural fairness or a failure by the Tribunal to perform its statutory functions. The application was dismissed, as was an appeal to the Full Federal Court. 69 The High Court, by majority (Gleeson CJ, Kirby, Callinan and Heydon JJ, with Gummow and Hayne JJ dissenting) reversed the decision of the Full Federal Court. Gleeson CJ, with Kirby J agreeing, held that the delay created a real and substantial risk that the Tribunal's capacity to assess the applicants' evidence and evaluate their claims was so impaired as to deny them a fair hearing. In a separate judgment, Callinan and Heydon JJ held that procedural unfairness could spring not only from a denial of an opportunity to present a case but also from the denial of an opportunity to consider it. The applicants' demeanour and credibility were relevant to the Tribunal's decision. It could be inferred from the delay that, in the absence of contrary evidence, the Tribunal had deprived itself of its capacity to assess their oral evidence. 83 Speaking generally, therefore, NAIS stands as support for the proposition that lengthy delay, unacknowledged by the Tribunal in its reasons for decision , can give rise to jurisdictional error. This may be because the Tribunal has failed to take into account a matter that it was obliged to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. Alternatively, it may be that the Tribunal has denied the applicant a fair hearing, and thereby denied him procedural fairness. 84 The Minister submitted that NAIS could be distinguished from the present case. NAIS concerned delay and its effect upon the capacity of the Tribunal to assess demeanour. The present case also involved delay but not in the way that this issue arose in NAIS . 86 The Minister did not specifically challenge the proposition that the decision in NAIS established that delay could, in some circumstances, give rise to a denial of procedural fairness. Nor did he necessarily accept that proposition. He submitted, however, that the particular circumstances of this case were far removed from those in NAIS . There the Tribunal had made demeanour-based findings against an appellant in circumstances in which four and a half years had elapsed between the observation of the demeanour and the making of the findings. In the present case, the differences between the accounts given by the appellant over time relied upon by T3 had never featured in the reasoning of either T1 or T2. In other words, the Minister submitted, it could not logically be said that delay had had any impact upon the memory of the appellant or upon his ability to give evidence. Rather, it appeared that the delay had had an "improving effect" upon his memory. It was for that reason that T3 found that he had in fact fabricated his claims. 87 Further, the Minister submitted, as the Federal Magistrate found, T3 was well aware of the chronology of the evidence given by the appellant, including the number of times, the dates, the successful applications for judicial review, and the content of what he had previously said. That justified his Honour's finding that T3 had "implicitly" taken all relevant matters into account and, more particularly, all matters that it was obliged to take into account. The Minister contended that the appellant's submission amounted to no more than an attack upon the merits of T3's decision. 88 I accept the Minister's submission that NAIS is not directly in point. However, the principles underlying the majority view seem to me to be relevant, by analogy, to the particular circumstances of this case. 89 As previously indicated, the appellant first gave a detailed account of his past history in the Ukraine as far back as 2001. Some of the events that he described were relatively recent at that stage. However, through no fault of his own, he was obliged over the next four years to recall repeatedly the details of events that must have become more difficult to remember with the passage of time. 90 In my view, T3 was obliged to take that aspect of delay into account when considering any possible inconsistencies between the various statements that he made regarding these events. 98 However, when one adds to the mix the fact that none of the inconsistencies identified were properly analysed, several seemed to have misstated the appellant's earlier position, and some involved summaries taken out of context, the entire process appears to have gone badly wrong. To use the language of Gummow J in NAIS , the Tribunal did not give "proper, genuine and realistic" consideration to the appellant's case. He was not afforded the hearing to which the law entitled him. 99 In my view, the Federal Magistrate erred in dismissing the appellant's complaints by treating the Tribunal as having "implicitly" taken into account matters that I frankly doubt it ever considered. 100 It follows that the appeal must be allowed. The orders of the Federal Magistrates Court must be set aside. There will be orders in the nature of certiorari and mandamus, which will have the effect of quashing the decision given by T3 and remitting the matter to a fourth Tribunal to be dealt with according to law. I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg . Associate: Dated: 19 June 2008 Counsel for the Appellant: Mr J. Young Solicitor for the Appellant: Simon Diab &amp; Associates Counsel for the First Respondent: Mr J. Smith Solicitor for the First Appellant: Clayton Utz Date of Hearing: 23 May 2008 Date of Judgment: 19 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/913.html