Australian Immigration Daily News

Suppose it takes the Tribunal what seems like forever and a day to hand down a decision after a hearing has been held? 

Is justice delayed justice denied? 

Or to put it another way, can the passage of a long period of time without a decision amount to jurisdictional error, so that an adverse decision by the Tribunal will be quashed and the case sent back to the Tribunal for re-determination “in accordance with law”? 

This issue was considered in a case that was decided by Judge Smith of the Federal Circuit Court on 29 April 2016: Patel & Ors v Minister for Immigration & Anor (2016) FCCA 954. 

And how was the question answered? In a way that every law professor, and maybe every lawyer, loves: “Yes, excessive delay can be jurisdictional error. It depends on the circumstances”. 

Unfortunately for the visa applicant in this case, the circumstances in his particular case did not work in his favour. So even though there was significant delay between the time his matter was heard (May 2014) and the time that a decision was finally handed down (4 March 2015), this delay was found not to occasion jurisdictional error. 

It is interesting to note that the substantive issue raised by this case was one that has been surfacing repeatedly. The applicant had applied for a 457 visa for the position of a “customer relations manager” at a Domino's pizza shop near Perth. Even though the sponsor's nomination of the position had been approved by the Department, a delegate of the Minister refused the visa application itself on the grounds that the position was not genuine. The delegate took the view that based on the size and structure of the workforce at the pizza shop, it was “not plausible that the company operating the shop actually required the services of a “customer services manager”. 

While the delegate had concluded that the occupation of a customer services representative was not suitable for a fast food outlet, the Tribunal did not accept this proposition. Nonetheless, the Tribunal ultimately found that the evidence given in support of the visa application was “imprecise” and was not sufficient to prove that the position was genuine in the context of the nominating business. 

So why did the Federal Circuit Court decide that the delay between the conclusion of the hearing and the time that the Tribunal handed down its decision did not amount to jurisdictional error? 

Judge Smith referred in his written judgment to a decision of the High Court that holds that a long delay in delivering by the Tribunal can, in certain circumstances, result in a finding of jurisdictional error. That case is NAIS v Minister for Immigration and Multicultural & Indigenous Affairs. 

In NAIS, one of the crucial issues to be determined was the credibility of the witnesses who had given evidence. Apparently, the long delay in that case raised questions as to whether the delay had impaired the capacity of the Tribunal to make a proper assessment of the sincerity and reliability of the testimony that had been given. Indeed, it would stand to reason that if a substantial period of time passes between the time of a hearing and a decision, the hearing officer may have difficulty fairly remembering the behaviour and demeanour of the witnesses (this might especially be so if a Tribunal member has presided over a large number of other cases in the meantime – there may be genuine issues about whether a Tribunal member could accurately recall what had happened at the hearing, how the witnesses had presented themselves, and whether what they had said was deserving of belief, or not). 

The essential principle, as articulated by Judge Smith, is “whether it may be inferred from all the circumstances that the delay between the hearing and the decision made by the Tribunal was such that jurisdictional error may be inferred” - that is to say, whether by reason of the delay, there is a real and substantial risk that the Tribunal's ability to make a fair assessment of the case was impaired.

In the decision, Judge Smith was very careful to state that the question of whether a delay between the time of the hearing and the time of a hearing has resulted in jurisdictional error is not to be determined by the length of the delay itself. Judge Smith also noted that the legislative framework of the Migration Act does not impose a “time limit” on the Tribunal for handing down decisions. Rather, Judge Smith held, the key issue is whether the delay has resulted in some sort of procedural unfairness. 

In the particular setting of the Patel case, Judge Smith determined that the delay had not resulted in jurisdictional error. In reaching this conclusion, it appeared that it was particularly important to Judge Smith that the Tribunal had not rejected any of the evidence that had been given on behalf of the applicant, and did not base its decision on the credibility of the evidence. 

The lesson to be taken from the Patel case is that a lengthy delay between the time of the hearing before the Tribunal and the time that the Tribunal's decision is handed down can definitely give rise to a finding of jurisdictional error. However, the delay, simply by itself, is not enough to support a finding of error. Rather, it must be able to be shown that the delay has affected the Tribunal's ability to make a fair assessment of the case. It does appear, based on this decision in Patel and on the High Court's judgment in NAIS, that the cases where jurisdictional error is most likely to be found are those where the decision turned on questions of credibility, and the Tribunal has rejected the evidence given on behalf of an applicant on the basis of adverse credibility findings.

 Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.