FEDERAL COURT OF AUSTRALIA

AAM15 v Minister for Immigration and Border Protection [2015] FCA 804

THE COURT ORDERS THAT:

1.    The applicant’s application to pursue additional grounds of appeal be dismissed.

2.    The Minister’s application to file a notice of contention out of time be dismissed.

3.    The appeal be allowed.

4.    The matter be remitted to the Federal Circuit Court for trial before a differently constituted court.

5.    The costs of the mistrial in the Federal Circuit Court and of this appeal abide the outcome of the second trial.

6.    The name of the second respondent be changed to ‘Administrative Appeals Tribunal’.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This is an appeal from the Federal Circuit Court of Australia. The appellants are a family unit consisting of a husband, wife and daughter who are from Bangladesh. They arrived in Australia on 11 July 2013 and applied for protection visas on 7 August 2013. Their visa applications were refused by a delegate of the Minister on 20 March 2014. An application for review was then pursued before the Refugee Review Tribunal (‘the Tribunal’) which conducted a hearing on 24 November 2014. On 27 January 2015 the Tribunal affirmed the delegate’s decision. On 24 February 2015 the family applied for judicial review of that decision in the Federal Circuit Court. The case was called on for hearing on 11 May 2015 and decided on that day.

The Reasoning of the Court Below

2    The judicial review proceeding raised issues about the way in which the hearing before the Tribunal had been conducted. In particular, it invited close attention to:

(a)    the Tribunal’s treatment of a claim made by the daughter that she was concerned that if returned to Bangladesh she would be sexually assaulted by persons wishing to take revenge on her father; and

(b)    the Tribunal’s use of two prior inconsistent statements made by the husband when first interviewed by the Department.

3    The two grounds of judicial review before the Federal Circuit Court were, first, that the Tribunal had not given the daughter an opportunity to give evidence and present argument about her fears of sexual assault and, secondly, that the Tribunal had failed to comply with its obligation arising from s 424A of the Migration Act 1958 (Cth) (‘the Act’) to give the applicant an opportunity to comment on the alleged two prior inconsistent statements before using them as part of its reasons for affirming the delegate’s decision.

4    In summary, the Federal Circuit Court did not deal with the first argument and its reasons for rejecting the second argument were not adequate in the requisite sense.

5    As to the first argument, the Court considered and rejected at [9] and [10] the argument that the father had not been given an opportunity to give evidence and present argument when the argument advanced to it was not about the father but rather the daughter. This requires no further explanation.

6    As to the second argument, the Court reasoned this way at [12]:

‘12.    It is clear that on 10 December 2014, at pages 283-286 of the Court Book, marked as an exhibit, the Tribunal gave clear particulars of the information that it considered would be the reason or part of a reason for affirming the decision that was under review. I am satisfied that the requirements of s.424A were complied with. Having also seen the transcript that was put into evidence by the applicant, it is clear that the Tribunal raised those issues of credibility with the applicant in accordance with s.424AA, and there is no substance in relation to the alleged second ground. Further that the applicant as an admitted liar was not a truthful witness was clearly particularised and raised with the applicant at the hearing as identified above. This is a case where the truthfulness of the applicant was squarely raised by the admitted false passport. I do not accept the oral information provided to the Department as to the applicant not being a truthful witness in this case required the step taken by the sending of the s.424A letter. I am satisfied that there was no jurisdictional error by the Tribunal. The application is dismissed.’

7    The third last sentence suggests that the Court understood that the statement provided by the applicant to the Department was a statement that he was not a truthful witness. Neither party, nor the Tribunal, suggested that this was the statement he had made.

8    The Tribunal dealt with the applicant’s prior inconsistent statements at two places in its reasons. The first was at [21] where the Tribunal concluded that the applicant was unreliable because he had stated at the Departmental interview that he had decided to leave Bangladesh after his daughter was attacked whereas what he told the Tribunal was that his daughter was attacked in April 2011 and he only decided to leave the country in April 2013.

9    The second place where the applicant’s prior statements to the Department were utilised by the Tribunal was at [30]. There it observed that there was an inconsistency between the applicant’s evidence to the Tribunal that he and his family had been living in hiding in Bangladesh moving from address to address and his failure to mention that fact in his Departmental interview.

10    I infer from the last three sentences of [12] of the reasons of the Federal Circuit Court that it believed it was dealing with an argument that the applicant had made oral statements to the Department that he was an untruthful witness and that the Tribunal had failed to put that to him under s 424A. The reasoning at [12] appears to me to be (a) such information about those statements (which he did not make) did not need to be put to the applicant under s 424A; (b) the Tribunal raised the lack of the applicant’s credit with him at the hearing under s 424AA; and, (c) the Tribunal had given the applicant ‘clear particulars of the information’ although the Court did not identify what the information was.

11    I am unable to determine how the Court reasoned. It could be that the first sentence should be read as a reference to the prior inconsistent statements being put to the applicant in the Tribunal’s letter of 10 December 2014 but this generates difficulties in understanding what the last three sentences are dealing with. Given that what is involved here are the reasons of a Court and not the reasons of an administrative tribunal, in respect of whose reasons a certain degree of latitude is permitted, I feel constrained to conclude that [12] does not constitute adequate reasons for disposing of ground 2: I am unable to perceive what the process of reasoning is and hence cannot conduct the exercise of determining whether that process contains error.

The Minister’s Argument

12    The Minister did not advance any argument that the decision could be defended although he did not formally concede error. Instead, he sought leave to rely upon a notice of contention. Leave was necessary because the time for the filing of such a notice under r 36.24 of the Federal Court Rules 2011 (Cth) had passed. That time is 21 days after the date of the filing of the notice of appeal which, in this case, was 24 February 2015. Thus any notice of contention had to be filed by 17 March 2015 and this did not occur. The Court has the power to extend this time under r 1.39(a). The draft notice of contention responded to both grounds of review in the Court below. As to the argument that the daughter had not been given an opportunity to put on evidence and make submissions about her fear of sexual assault if she were returned, the Minister sought to point to material which suggested that the Tribunal had given her such an opportunity. As to the second argument, that the applicant had not been given an opportunity to comment on the two prior inconsistent statements, the Minister pointed to material suggesting that he had been given such an opportunity.

The Appellant’s New Grounds

13    By their notice of appeal the appellants raise ground one in the Court below (relating to the daughter) substantially as grounds 2, 3 and 4. Ground two in the Court below corresponds to Ground 6 of the notice of appeal. Grounds 1 and 5 are new and are not matters which were ventilated in the Court below. The appellant therefore needs leave to pursue them in this Court.

The Role of this Court

14    One is confronted, then, with the situation that this Court is being called upon in the exercise of its appellate jurisdiction to decide the entirety of the matters which were for trial, including two new grounds, in circumstances where none of the issues to be decided in this Court were ever decided in the Court below. Section 476A of the Act explicitly removes this Court’s original jurisdiction in cases of this kind. Of course, the ability of this Court to hear fresh grounds of appeal or to entertain a notice of contention is not circumscribed by s 476A as they are both aspects of the Court’s appellate jurisdiction. But s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and a notice of contention when to do so will mean that this Court performs the trial court’s entire function. As a matter of substance, that is what s 476A appears aimed at preventing. There is this further matter, too: Pt 8 of the Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

15    The circumstances which generate this situation are quite extreme and are unlikely to recur – it is rare in appellate proceedings for a respondent not to seek to rely upon any part of the trial court’s reasons. In saying that, I am intending no criticism of the Minister’s position which was not of his making and which was a rational response to a challenging situation.

Orders

16    In those circumstances, I decline to grant leave either to the applicant to pursue his additional grounds or to the Minister to file his notice of contention. The appeal will be allowed and the matter remitted to the Federal Circuit Court for trial. The costs of the mistrial in the Federal Circuit Court and of this appeal will abide the outcome of the second trial.

17    I thank counsel and solicitors for the Minister for their very proper and helpful submissions.

Associate:

Dated:    6 August 2015