FEDERAL COURT OF AUSTRALIA

CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

The appeal

1    These reasons for judgment explain why we have dismissed the appeal from the orders of the primary judge dismissing the appellant’s application for review of a decision of the Administrative Appeals Tribunal (the Tribunal). The primary judge made these orders on 22 September 2017 consequential on reasons for judgment published the same day: CMU16 v Minister for Immigration & Anor (No 2) [2017] FCCA 1948 (Judge Street).

2    The fourth amended notice of appeal on which the appellant relies has eight grounds, each with multiple particulars. The eight grounds may be summarised as:

(1)    the primary judge was actually biased against migration applicants and in favour of the Minister;

(2)    the primary judge’s decision is affected by a reasonable apprehension of bias;

(3)    the primary judge breached s 71 of the Commonwealth of Australia Constitution Act 1900 (Cth) (Constitution) by failing to give the appellant a hearing;

(4)    the primary judge erred by not finding that the Tribunal acted upon a certificate invalidly issued under s 438 of the Migration Act 1958 (Cth) (Migration Act) or alternatively denied the appellant procedural fairness;

(5)    the primary judge erred by determining that the credibility findings made by the Tribunal were open to it;

(6)    the primary judge erred by finding that the material the subject of complaint was considered by the Tribunal;

(7)    the primary judge erred by not finding that the Tribunal had erred through bias or apprehension of bias in making its credibility findings, where the Tribunal’s error consisted of failing to consider the whole of the evidence (especially the strengths of the appellant’s evidence) instead focusing exclusively on negatives which were “objectively minor matters of fact”; and

(8)    the primary judge erred by not giving adequate reasons for his decision.

3    For the reasons given below none of these grounds of appeal is sustainable.

Background

4    The Minister’s submissions provide a convenient summary of the background to the appeal, including the decision of the Tribunal:

The appellant is a citizen of Sri Lanka who arrived in Australia on 9 April 2013 and is an unauthorised maritime arrival. He lodged an application for a protection visa on 12 July 2013. He claimed … to fear harm in Sri Lanka as a Tamil, by reason of imputed political opinion, as a Muslim, a business owner and a failed asylum seeker who departed Sri Lanka illegally. The appellant specifically claimed to have been harassed by Sinhalese thugs who would come to his restaurant, ask for money and vandalise property. He claimed he was required to pay bribes to the Sri Lankan police in order to operate his business. The appellant claimed that in May 2012, Sinhalese thugs came to his restaurant and a fight broke out in which the leg of the brother of a minister was broken. The appellant then went into hiding, but his father continued to be harassed, beaten and threatened. A delegate of the Minister refused the appellant’s protection visa application on 6 November 2014. He sought review by the [Tribunal], which affirmed the delegate’s decision on 11 August 2016.

The [Tribunal] found that the appellant was of Moor ethnicity and would not be perceived to be Tamil. The [Tribunal] accepted that the appellant was a Muslim. The [Tribunal] found that the appellant’s evidence about the altercation in May 2012 was vague, unconvincing and contradictory, that the incident did not occur and that the appellant was not targeted as a result. The [Tribunal] further found that the appellant’s evidence about the harm suffered by his father was inconsistent and did not accept that his father had been beaten, shouted at or otherwise adversely approached by anyone seeking to harm the appellant. The [Tribunal] rejected the factual premise for the appellant’s claim to fear harm by reason of imputed political opinion, and found that he did not pay bribes to the Sri Lankan police on a weekly basis. The [Tribunal] was of the view that the appellant would not suffer harm as a Muslim in Sri Lanka, and any altercations in connection with his business would not amount to serious or significant harm. Further, in light of his profile, the experiences he might encounter and penalties he may face upon return would not amount to serious harm for a Convention reason, or to significant harm. The [Tribunal] concluded the appellant did not satisfy either the refugee criteria or attract Australia’s complementary protection obligations.

(Citations omitted.)

The primary judge’s reasons

5    The primary judge’s reasons identified the circumstances of the appellant’s claim to a protection visa, including his interview as an irregular maritime arrival, his statement in support of his protection visa application, and the decision of the delegate of the Minister refusing the protection visa application: [1] – [21]. The primary judge identified the salient aspects of the appellant’s application to the Tribunal and the Tribunal’s decision at [22] – [55]. The primary judge also identified the appellant’s grounds for review of the Tribunal’s decision at [56].

6    In respect of ground 1, that the Tribunal made a jurisdictional error by making adverse findings based on a misapprehension of the evidence, or by making findings which were unreasonable, the primary judge said at [57] that each of the “findings … were open to the Tribunal on the evidence before the Tribunal and cannot be said to be unreasonable or lack an evident and intelligible justification”. His Honour continued at [58]:

There were obvious inconsistencies in the applicant’s evidence in relation to the incident that occurred in May 2012, including who arranged for the staff to depart in three-wheelers, whether the staff went to the applicant’s home or their home, whether the cashier took money with him or not, as to the applicant hiding, as to the applicant identifying problems with the businesses, and in relation to the applicant’s evidence concerning the injury to the brother of the Minister. None of the matters in Ground 1 of the third amended application identify any misapprehension of the evidence by the Tribunal. None of the matters referred to in the particulars and the submissions oral and written by Mr Silva in that regard make out any unreasonableness in relation to the Tribunal’s findings. Ground 1 fails to make out any jurisdictional error.

7    In respect of ground 2, that the Tribunal made a jurisdictional error by failing to take into account critical information, the primary judge concluded at [59] that there was “no basis to advance the submission that the Tribunal did not give consideration to the material the subject of the submissions referred to in the Tribunal’s reasons” and that “[t]here is clearly a genuine intellectual engagement by the Tribunal with the applicant’s submissions.” The primary judge noted that the “Tribunal is not required to make findings in relation to every piece of evidence before it” and that it had “made dispositive findings in relation to the applicant’s claims.” His Honour continued at [60] as follows:

In support of part of the grounds in Ground 2, Mr Silva of counsel purported to rely upon a translation of one of the documents that was not before the Tribunal. That translation was said by Mr Silva to have been the subject of an error in failing to correctly identify a further feature of significance in relation to the document. A document that was not before the Tribunal cannot give rise to there being information that the Tribunal failed to take into account. No jurisdictional error is made out by Ground 2.

8    In respect of ground 3, that the Tribunal made a jurisdictional error in that it was biased or caused an apprehension of bias by making credibility findings without considering the whole of the evidence including the strengths of the appellant’s evidence and focusing instead on “the negatives” which were “objectively minor matters of fact”, the primary judge said at [62]:

None of the submissions advanced by Mr Silva in this regard have any substance. The transcript reveals that the applicant had a real and meaningful hearing. There is nothing in the conduct of the Tribunal in the asking of questions in the transcript or by reason of the adverse findings by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the determination of the matter on its merits. On the material before the Court, the Tribunal approached its task in the conduct of the review with an open mind reasonably capable of persuasion. No case of bias against the Tribunal as alleged in Ground 3 is made out.

9    In respect of ground 4, that the Tribunal made a jurisdictional error in that the totality of its errors with regard to the appellant’s credibility as advanced in grounds 1 to 3 are such that its decision was manifestly unreasonable, the primary judge said at [63]:

None of the grounds in Ground 1, 2 and 3 are made out, and even considered cumulatively, they do not give rise to any unreasonableness in the decision of the Tribunal. The adverse credibility findings were clearly open and cannot be said to lack an evident or intelligible justification. No jurisdictional error is made out by Ground 4.

10    In respect of ground 5, that the Tribunal acted on a certificate invalidly issued under s 438 of the Migration Act or alternatively denied the appellant procedural fairness, the primary judge noted at [64] that “the documents the subject of the certificate were admitted into evidence”. These documents consisted of an identity document with notes that provided:

In his screening interview ADD2013/492573 - His family make up is described as Father alive, 1 Brother, 2 Sisters and mother deceased. Contrary to other claims which is 2 brothers, 1 sister.

In his PV application Statement of claim he does not return to his house but goes straight to his friend’s, In his Arrival interview he did return to his home, as he did in His Screening interview.

In his screening interview His father and Sisters (plural) are living and in the other His older brother and his wife.

Also in the screening interview there is a reference to VNT009 having a wife: ‘they came with weapons & told my wife that they will kill me with that weapon.’

11    His Honour continued, saying:

65.     None of the matters identified in the notes are reflected in the reasoning of the Tribunal adverse to the credibility of the applicant. Notwithstanding that the Tribunal has referred to the totality of the evidence before it, the Court is satisfied that the Tribunal did not have regard to or act upon the material the subject of the certificate. The Court finds that the material the subject of the certificate played no role in the conduct of the review by the Tribunal and was not taken into account by the Tribunal in the adverse credibility findings that it made of the applicant. It is only if the information not disclosed is credible, relevant, and significant that the non-disclosure by the Tribunal in the review process gives rise to a jurisdictional error. This requires consideration of the non-disclosed material at the time of the hearing as procedural fairness is concerned with the process not the outcome.

66.     The adverse credibility findings made by the Tribunal of the applicant in the present case were the subject of rational and cogent reasons, and the documents the subject of the certificate played no role in relation to those findings. Mr Silva of counsel submitted that the information in the notes was adverse to the applicant, and was relevant to the review. Whilst the documents do make observations in relation to the applicant, the Court finds that none of those matters were taken into account by the Tribunal in the determination of the applicant’s credit.

67.     The Court finds, on its face at the time of hearing, the undisclosed information being the internal notes on the identity document were not of [a] kind that a reasonable Tribunal would regard as credible, relevant, and significant.

68.     The Court finds that the documents the subject of the certificate [were] not relevant to the review and that the applicant suffered no practical injustice by reason of the non-disclosure of the certificate or the documents the subject of the certificate. This was a case where there was overwhelming evidence in relation to the Tribunal’s concerns in respect of the applicant’s credibility, and in respect of which the document the subject of the certificate played no part.

69.     The Court is satisfied that the non-disclosure of the certificate and the documents the subject of the certificate did not give rise to any practical injustice in the present case. Further, the Court finds that the documents the subject of the certificate in the present case could not possibly have affected the outcome of the review had they been disclosed to the applicant, and for this further reason, if there was a relevant error, relief should be refused on discretionary grounds.

The evidence sought to be led on appeal

Summary of the evidence

12    The appellant seeks to lead evidence on the appeal concerning unrelated migration proceedings in which the primary judge was involved on the basis that the evidence is relevant to grounds 1 (actual bias of the primary judge) and 2 (an apprehension of bias on the part of the primary judge). The appellant argues, firstly, that this evidence is relevant (without reliance on tendency or coincidence reasoning); secondly, that it is tendency evidence satisfying s 97(1) of the Evidence Act 1995 (Cth) (the Evidence Act); and thirdly, that it is coincidence evidence satisfying s 98(1) of the Evidence Act.

13    The evidence consists of:

•    extracts from the record of three unrelated cases in which the appellant’s present counsel represented a migration applicant before the primary judge;

•    the reasons for judgment in what are said to be the first 10 migration decisions of the primary judge in September 2017 (as published by Austlii) – that month was chosen because it is the month in which the decision under appeal was handed down; and

•    10 decisions of this Court on appeal from the primary judge, which are said to be critical of the primary judge, although another eight such judgments were also referred to.

14    From the record of the three unrelated cases before the primary judge, the appellant submits that the following findings of fact can be made in one or more of those cases which, so he submits, are relevant to the present case:

(1)    the primary judge dismissed the migration applicant’s case without adequate reasons.

(2)    the primary judge impeded the evidence or submissions of the migration applicant, including by challenging or arguing with counsel for the migration applicant, being authoritarian and discourteous and abrupt towards counsel, telling counsel that he understands the legislation and the authorities and counsel should move on or sit down, usurping the role of the Minister’s counsel, and taking the role of contradictor to the migration applicant.

(3)    the primary judge treated counsel on either side of the case differently.

(4)    the primary judge denied the migration applicant procedural fairness.

(5)    the primary judge failed to consider, or adequately deal with, written and oral submissions and authorities advanced by the migration applicant.

(6)    the primary judge did not have an open mind, including by defending the correctness of the findings under review.

15    From the primary judge’s first 10 reasons for judgment in migration cases in September 2017, the appellant submits that there should be a finding that his Honour does not give proper reasons.

16    In the judgments of this Court on appeal from the primary judge in other cases, the appellant submits that the following findings were made in one or more of the other cases which, so he submits, are relevant to this case:

(1)    the primary judge dismissed the migration applicant’s case without giving adequate reasons.

(2)    the primary judge denied the migration applicant procedural fairness.

(3)    the primary judge dealt with the case at a high level of generality, failed to consider fundamental aspects of the case, and merely asserted a conclusion.

(4)    the primary judge published his reasons for judgment only after a significant delay.

17    From those findings the appellant submits that this Court has repeatedly been very critical of the performance of his Honour’s judicial responsibilities including his failure to give adequate reasons which shows actual and/or apprehended bias.

The objection to admissibility

18    The considerations of whether fresh evidence should be allowed to be led on appeal, including having regard to the fact that much of the evidence would appear to have been available to the appellant at the time of the hearing before the primary judge and deemed to be within the knowledge of the appellant as being actually within the knowledge of his counsel, can be put to one side. Since objection to the admissibility of the evidence has been taken by the Minister, it is with respect to that question that it is convenient to commence.

19    In order to be admissible, the evidence will first have to clear the hurdle of relevance in s 55 of the Evidence Act – that is, that it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

20    Once admissible as relevant, the evidence would then have to not be caught by any exclusionary provision.

21    Insofar as the appellant sought to adduce evidence of various decisions of this Court on appeal from the primary judge, the evidence is inadmissible to prove the existence of any fact in issue in those proceedings: s 91 Evidence Act. It can be seen that the factual findings that the appellant seeks from this Court, based on judgments of this Court in other cases, are in relation to facts in issue in those other cases. For example, whether the judge gave adequate reasons or whether he denied the migration applicant procedural fairness. Those judgments are simply not admissible for that purpose.

22    The next relevant exclusionary provisions are those in Pt 3.6 of the Evidence Act, namely with regard to tendency and coincidence.

23    Section 94(3)(b) of the Evidence Act provides that Pt 3.6 “does not apply to evidence of … a tendency that a person has or had … if that … tendency is a fact in issue”. In Allam v Aristocrat Technologies Australia Pty Ltd (No 2) [2012] FCAFC 75 at [33] it was held that this “should be understood to mean [an] ‘ultimate fact in issue’.”

24    Section 97 of the Evidence Act, expressing the tendency rule, provides that:

(1)     Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a)     the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and

(b)    the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

25    Section 98 of the Evidence Act, expressing the coincidence rule, provides that:

(1)     Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a)    the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and

(b)    the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

26    Evidence was sought to be adduced by an appellant on a tendency and coincidence basis in CDD15 v Minister for Immigration and Border Protection [2017] FCAFC 65; (2017) 250 FCR 587 (CDD15). The Full Court (Perram, Robertson and Wigney JJ) said this at [75]:

As to the ostensible bias argument, the facts to be proved are facts from which ‘a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits’: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] per Allsop CJ, Kenny and Griffiths JJ. This directs attention to the matter actually before the Court. In the context of such a test, the concept of tendency makes no sense. The ostensible bias issue does not relate to an inquiry into whether a judicial officer has a tendency to behave in any particular way. Rather, it is concerned with whether the way in which the judicial officer has behaved might generate a particular apprehension. The appellant’s invocation of s 97 in relation to the ostensible bias case is, therefore, misconceived. That does not mean that the evidence of the other cases is necessarily irrelevant; rather, it just means that it is not relevant on a tendency basis. For that reason, we would not receive this additional evidence under s 97 in relation to the ostensible bias case in respect of which, as tendency evidence, it has no probative value.

27    Their Honours continued at [77]:

Different considerations apply in respect of the actual bias case. Here the tendency argument would be that the other two cases are evidence that his Honour had a tendency to decide cases adversely to refugee applicants regardless of their merits. However, for largely the same reason as that just given, it is not possible to gauge the correctness of that proposition without knowing a lot more about the cases and, in particular, about their merits. For that reason, we would not accept that the proposed evidence has significant probative value for the purposes of s 97(1)(b) of the Evidence Act and would not receive it as tendency evidence in relation to a case of actual bias. We would be prepared to accept, as a matter of theory, that the evidence could bear upon a case of actual bias in a way which did not involve the use of tendency reasoning. Again, however, we do not see that this could occur without, as we have already noted, some consideration of the underlying merits of the two cases.

28    The appellant submitted that CDD15 is incorrect and distinguishable on the facts as in the present case there is, so the argument went, sufficient information about the merits of the unrelated cases for the Court to conclude that the primary judge was actually biased against applicants in migration cases, including the present case, or conducted himself in such cases so as to give rise to a reasonable apprehension of bias in the present case.

29    We are unable to accept the appellant’s submissions. In order to explain our conclusion, we will deal with the relevant considerations with regard to apprehended bias and actual bias separately before discussing the task that the appellant has set for himself.

Apprehended bias

30    Insofar as apprehended bias is concerned, tendency and coincidence evidence can play no role: CDD15 at [75] quoted at [26] above. With regard to tendency evidence, the reason for that is that such evidence is evidence by which it is sought to prove that the person in question in fact had a particular state of mind or behaved in a particular way in the present case, because of their character, reputation, conduct or tendency. With regard to coincidence evidence, the reason is that such evidence is evidence by which it is sought to prove that the person in question in fact had a particular state of mind or behaved in a particular way in the present case, because of the similarities in previous events or circumstances and the present events or circumstances.

31    As explained by Sackville J in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 at [61] (Whitlam and Mansfield JJ agreeing) in relation to tendency evidence, the question is whether the evidence of previous conduct is relevant to a fact in issue via propensity: insofar as the evidence establishes the propensity of the relevant person to act in a particular way, is it a link in the process of proving that the person did in fact behave in the particular way on the occasion in question?

32    Similarly with regard to coincidence evidence, evidence of two or more events is only coincidence evidence, so as to be caught by s 98, if it is adduced in order to rely on contended similarities in the events or circumstances in which they occurred to prove that a person did a particular act or had a particular state of mind by reasoning that “it is improbable that the events occurred coincidentally” : Evidence Act s 98(1). See, for example, R v MR [2013] NSWCCA 236 at [64] per Beech-Jones J (Hoeben CJ at CL agreeing).

33    An apprehended bias case is not about whether the judge decided the present matter with an open mind and without bias. It is about whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the judge might not bring a fair, impartial and independent mind to the determination of the present matter on its merits: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 (ALA15) at [35]. Thus, evidence to prove apprehended bias is not adduced to prove the actual state of mind or conduct of the judge in the case at issue, so such evidence cannot be caught by ss 97 and 98 of the Evidence Act. It follows that s 94(3), which stipulates circumstances in which ss 97 and 98 do not apply, also plays no role.

34    Thus, the hurdle facing the appellant’s reliance on the primary judge’s record in other cases is the hurdle of relevance in s  55 of the Evidence Act identified above. Such evidence of conduct in other cases can be relevant to an apprehended bias case. That is to say, evidence of how a judge conducted himself or herself in other unrelated cases which establishes the character, reputation, or conduct of the judge, which can be attributed to being within the knowledge of a fair-minded and appropriately informed lay observer, might reasonably cause that observer to apprehend that the judge might not bring a fair, impartial and independent mind to the determination of the matter in question on its merits.

35    That that is so is apparent from how the Full Court treated such evidence in ALA15. The appellant sought to lead statistical evidence that the judge in question decided 99.2% of immigration judgments against the immigration applicant and in favour of the Minister, that he delivered 100% of immigration judgments ex tempore, that he gave judgment at the first court date in 64.96% of immigration judgments, and that in a particular period 10.8% of Migration Review Tribunal decisions and 12.2% of Refugee Review Tribunal decisions were set aside on judicial review compared to only 0.79% being set aside on judicial review by the primary judge: see ALA15 at [11].

36    The Full Court in ALA15 rejected that evidence, not on the basis that such evidence of conduct in other cases cannot be relevant on an apprehended bias case, but because the particular evidence sought to be adduced did not prove apprehended bias. Without a relevant analysis of the individual immigration judgments determined by the judge in order to place the statistics in a proper context, there may be explanations for the statistics other than that the judge decided immigration cases other than on a reasonable and plausible basis: ALA15 at [38]. For example, even if some or all of the judgments were wrongly decided, that may be the consequence of human frailty on the part of the judge and not pre-judgment: ALA15 at [38]. Also, the fact that it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias: ALA15 at [39]. And, the mere fact that a particular judge has decided a number of cases, the facts and circumstances of which are unknown, one way rather than another, does not go any way to assisting the hypothetical observer making an informed assessment as to whether that judge might not bring an impartial and unprejudiced mind to the resolution of the question in a particular proceeding before that judge: ALA15 at [41].

37    As a matter of logic, if it was proved that a judge had decided several other immigration cases against immigration applicants on account of the judge’s actual bias against immigration applicants, that characteristic, or tendency, of the judge may ground an apprehended bias case in a subsequent case, even though it did not rise so high as to ground an actual bias case. Thus, it is not only conduct in the instant case that can be relevant to establishing an apprehended bias case, although most often it is such conduct. That it need not be is quite apparent from, for example, Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 (judges of the Court of Appeal having decided factual issues in the present case in a previous case between different parties were disqualified), Grassby v R [1989] HCA 45; (1989) 168 CLR 1 (comment by a judge of the Court of Appeal in an unrelated case about the present case disqualified him), R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [1999] UKHL 1; [1999] 2 WLR 272 (Law Lord was director and chairperson of a charity that provided support to an intervener in a proceeding in the House of Lords and was on that ground disqualified), and British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 (a previous finding in a separate matter founded an apprehension that the judge might come to the same determination even though on different evidence).

Actual bias

38    With regard to the case for actual bias, the fact in issue is whether the primary judge’s state of mind in the present case was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72]. Theoretically, at least, tendency and coincidence evidence could be probative of that fact. Indeed, evidence of the judge’s conduct in other cases could not be probative of his state of mind in the present case other than by way of tendency or coincidence.

39    Since the ultimate fact in issue in the actual bias case is not the character, reputation, conduct or tendency of the primary judge, but rather his actual state of mind in the present case, s  94(3) of the Evidence Act is not engaged and ss  97 and 98 are therefore applicable.

40    The result is that in order for the evidence of the judge’s conduct in other cases to be admissible in respect of the actual bias case it must, either by itself or having regard to other evidence adduced, “have significant probative value”: Evidence Act ss  97(1)(b) and 98(1)(b).

An impossible task

41    The other cases sought to be relied on by the appellant, on their face, are a mere selection of the primary judge’s decisions in migration cases. The things not known include:

(1)    how many migration cases the primary judge has decided in total;

(2)    in how many of those cases has the primary judge decided in favour or against a migration applicant;

(3)    how many of those migration cases have been subject to appeal; and

(4)    in how many of those migration cases subject to appeal has the primary judge’s decision been overturned or upheld.

42    Having some of the relevant information about a selective handful or so of the migration cases the primary judge has decided falls well short of the kind of information that would be needed before an appellate court might, in theory, consider that the evidence is relevant or that it has significant probative value. And even if the appellate court had this information, without it effectively conducting de facto appeal hearings of, conceivably, a very large number of primary decisions within the appeal hearing itself, the appellate court could not possibly satisfy itself that such evidence was relevant or had significant probative value. No appellate court would consider it appropriate to attempt to decide the merits of other cases about which it has not heard substantive argument from the parties concerned.

43    In other words, the present appellant has set for himself an impossible task. The evidence cannot possibly satisfy the thresholds of relevance or significant probative value to the claimed existence of apprehended bias or actual bias, respectively, on the part of the primary judge given its selectivity. In order to overcome the problem of selectivity, the appellate court would have to be willing to conduct de facto appeals within an appeal involving potentially all cases in which the primary judge has decided a migration application in order to decide if the evidence does have relevance or significant probative value. That is to say, the appellate court would have to decide for itself the merits of every such case before it could possibly conclude that the evidence met the tests of relevance or significant probative value. Moreover, the appellate court would have to be willing to do so without hearing from any of the parties to those cases, which would be a fraught exercise in any event. This is not the function of the appellate court, which has to determine the instant appeal, not hypothetical appeals.

44    In the present case, because the sample provided is so selective, there is no point in us attempting to decide the merits of the unrelated cases. Even if it could be concluded that in those cases the primary judge decided the case differently from how the appellate court would have decided the case, that would not prove that his Honour decided the case regardless of the merits. Moreover, as the Minister submitted, it is not the role of the Court in this appeal to attempt to determine (unaided by submissions) the merits of other unrelated cases.

45    It follows that all of the evidence in respect of the unrelated cases is inadmissible. The grounds of appeal fall to be decided by reference to the circumstances in connection with, and the conduct of, the present case alone.

Ground 1

46    Ground 1 alleges actual bias on the part of the primary judge. As the Minister submitted, to be sustained “strong grounds” to support the finding of actual bias must exist or a “high probability” of such bias must be demonstrated: R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 116.

47    Particulars (a) – (c) and (e) of this ground, in effect, allege that the primary judge gave inadequate reasons for dismissing the appellant’s arguments and did not deal with all of those arguments or did not deal with them in sufficient detail. It is alleged that the primary judge did not do so because of prejudgment. The allegation is misconceived. If the primary judge failed to give adequate reasons, that would itself be a proper ground of appeal. Indeed, it is ground 8 in this appeal. However, failure to give adequate reasons is not, without more, evidence of bias. But in any event, and as dealt with further in relation to ground 8 below, the primary judge was not required to refer to all of the appellant’s arguments: CDD15 at [83]. Further, in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 (Michael Wilson) at [67] the High Court (Gummow ACJ, Hayne, Crennan and Bell JJ with Heydon J agreeing at [119]) referred to:

the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.

48    Particulars (d) and (f) to (i) allege bias on the part of the primary judge from the way in which he conducted the hearing. The problem for the appellant is that the transcript of the hearing before the primary judge does not support the appellant’s contentions that his Honour tried to prevent the appellant’s counsel from adducing favourable evidence or acted as if he was the counsel for the Minister, or descended into the arena by intervention and advocacy in favour of the Minister, or was merely going through the motions of a hearing. The primary judge accepted the submission from the appellant’s counsel that he should be permitted to show the primary judge “how the claim was advanced from the beginning”. The primary judge also asked the appellant’s counsel what evidence counsel wished to take him to and went to that evidence as and when requested. The primary judge made it clear that he was not trying to stop the appellant’s counsel from presenting the case as counsel wished but was attempting to get counsel “to the point” as he had read the material.

49    The primary judge was entitled to intervene with a view to ensuring that he properly understood the points the appellant’s counsel was making. The primary judge was not required to be passive. The transcript shows the primary judge actively engaging with the appellant’s counsel in order to bring the appellant’s counsel to the point and to understand what that point was. That approach to the judicial task is well-established as appropriate: Vakuata v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571 and the authorities referred to at [54]-[57] and [57] below. Our review of the transcript does not support any suggestion that the primary judge acted as if he were the Minister’s counsel or that the appellant’s counsel was in any way prevented from making the case he wished to put before the primary judge. The observations in CDD15 at [82] are equally apt in the present case:

It is true that counsel for the appellant received the most of his Honour’s attention; it may even be said that the questioning of counsel for the appellant was robust. But these matters do not approach what is needed to make good a case of apprehended or actual bias.

50    The appellant’s submission that the primary judge did not feel the need to hear from the Minister’s legal representative is incorrect. The Minister relied on his written submissions for grounds 1 to 4 and made additional oral submissions on ground 5. The primary judge engaged in robust questioning with the Minister’s counsel about that ground. It cannot be fairly suggested, as the appellant does, that the primary judge demonstrated impatience to dismiss the appellant’s case. No such impatience is evident from the transcript, read fairly and as a whole.

51    Particulars (j) and (k) depend on the inadmissible tendency evidence.

52    The appellant’s case does not approach the strong grounds necessary to prove a case of actual bias on the part of the primary judge. The evidence does not come close to establishing a proper foundation to draw any inference that his Honour, in fact, was deciding the case on anything other than its merits having read and heard the competing submissions of the parties.

Ground 2

53    Ground 2 alleges apprehended bias on the part of the primary judge.

54    Particulars (a), (c) to (f) and (h) and (i) concern the primary judge’s interactions with the legal representatives for the parties. Contrary to the appellant’s contentions, the transcript provides no support for the allegations against the primary judge, which were to the effect that a reasonable observer would have perceived that the parties were treated differently to the disadvantage of the appellant, that the primary judge descended into the arena, appeared to take the Minister’s side, appeared as a contradictor to the appellant, or tried to prevent the appellant’s counsel from presenting the appellant’s case. As the Minister submitted, the High Court has stressed that the fair-minded observer in the test for apprehended bias is not devoid of knowledge of litigation. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] Gleeson CJ, Gaudron, Mchugh, Gummow and Hayne JJ said:

At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx…

Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

55    In Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [112] Kirby and Crennan JJ said:

Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.

(Citations omitted.)

56    Nothing in the transcript of the hearing before us suggests any intervention by the primary judge which exceeds that which was proper and reasonable in the circumstances of the case.

57    The Minister is also correct that the appellant’s case does not properly grapple with the requirements for apprehended bias expressed in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [7]-[8] where this was said by Gleeson CJ, McHugh, Gummow and Hayne JJ:

[7]     … Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. …

[8]     … application [of the principle] requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

58    The appellant’s case merely assumes the existence of bias because it commences with a view attributed to the primary judge that migration cases have no merit. However, the appellant has identified no fact, matter or thing connected with the feared departure from impartial decision-making. As has already been said, the transcript of the hearing before the primary judge provides no support for any inference that his Honour considered that migration cases are or, indeed, this migration case was, without merit. The fact that his Honour said that he was unable to make fresh findings of fact or determine the appellant’s credit were commonplace statements in the context of an application which required the appellant to establish jurisdictional error by the Tribunal. Nothing in the transcript provides support for the appellant’s submissions that the primary judge was supporting the Minister on every issue or had taken it upon himself to defend the Tribunal. The primary judge was entitled to identify the limits of the judicial review exercise that he was undertaking. As the Minister noted, the examples of the primary judge allegedly trying to defend the Tribunal’s decision, on review, are nothing more than the primary judge asking the appellant’s counsel what point the appellant’s counsel wished to make.

59    This is not a case in which there was excessive judicial interference in the presentation of the appellant’s case, as referred to in Dennis v Commonwealth Bank of Australia [2019] FCAFC 231 at [19]-[33]. As the Minister submitted, in the present case the appellant was represented by counsel before the primary judge. The appellant’s counsel had filed written submissions before the hearing. The primary judge permitted the appellant’s counsel to take him to the parts of the evidence on which counsel wished to rely. The primary judge did not prevent the appellant’s counsel from making submissions. The primary judge’s principal involvement was to ask which point the appellant’s counsel next wished to make and then to permit counsel to take him to the next point and to make submissions about that point.

60    Particular (b) to ground 2 alleges that the brevity of the primary judge’s reasons give rise to an apprehension of bias. As the Minister submitted, this approach to the question of apprehended bias “invert[s] the proper order of inquiry … by … assuming the existence of a reasonable apprehension” of bias: Michael Wilson at [67]. As the Minister also submitted, absent any logical connection between an identified fact, matter or thing and the feared departure from impartiality, there can be no conclusion of apprehended bias. As discussed, to the extent that the appellant relies on the transcript of the hearing before the primary judge to support his contentions, a fair reading of the transcript as a whole provides no such support.

61    Particular (f) in part and (g) and (j) depend on the inadmissible tendency evidence.

62    For these reasons ground 2 is without merit. Nothing in the circumstances of the hearing before the primary judge gives rise to a reasonable apprehension of bias.

Ground 3

63    Ground 3 alleges a breach of Ch III of the Constitution as it is said that the primary judge had “gone through the motions” of a hearing but, in fact, had not given the appellant a hearing at all.

64    As we have said above, the transcript of the hearing before the primary judge provides no support whatsoever for the allegation that the primary judge had not in fact given the appellant a hearing. There is no rational foundation for this allegation in the face of the course of the hearing disclosed by the transcript. To the extent this ground relied on the purported tendency evidence, the evidence is inadmissible for the reasons already given. Otherwise, the contention flounders on any fair and reasonable view of the course of the hearing as disclosed by the transcript, the terms of which are fundamentally irreconcilable with the appellant’s contention.

65    We accept also the Minister’s submission that, in any event, it would be unnecessary and therefore inappropriate to determine the constitutional issue sought to be raised by ground 3: Knight v Victoria [2017] HCA 29; (2017) 261 CLR 306 at [32], citing Lambert v Weichelt (1954) 28 ALJ 282 at 283. As the Minister submitted, the essential premise of ground 3 is that the primary judge erred in the discharge of his judicial functions. But if that is so, then the appeal would be allowed on ordinary common law grounds. Recourse to the Constitution would be unnecessary. If that is not so, the basis for invoking the Constitution also falls away. Further, as the Minister also submitted:

38.    Nothing is added to a procedural fairness ground by seeking to constitutionalise it because the requirements of the Constitution do not exceed what is required by the common law principles of fairness. Section 71 of the Constitution (or Ch III more broadly) does not alter or add to the substantive content of those rules and the appellant has not identified any relevant authority in support of the significant extension to Ch III principles that he seeks. Collier v Country Women’s Association of NSW [2018] NSWCA 36, relied upon by the appellant ([Appellant’s Submissions] at [67]) does not address any constitutional issue. The statement by French CJ and Kiefel J in Wainohu v New South Wales [[2011] HCA 24;] (2011) 243 CLR 181 at [44] that it is a defining characteristic of a court (for the purposes of the Kable [v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51] doctrine) that it generally gives reasons for its decision (see [Appellant’s Submissions] at [22]) does not provide authority for the proposition that the appellant seeks to draw from it, namely that any failure by the FCC to give adequate reasons involves a breach of Ch III: [Appellant’s Submissions] at [70].

39.    It may be accepted that ‘Ch III of the Constitution mandates the observance of procedural fairness as an immutable characteristic of… [a] court…’: Condon v Pompano [[2013] HCA 7;] (2013) 252 CLR 38 (Condon) at [177] per Gageler J; see also at [67] per French CJ. However, the constitutionally mandated characteristics of a court ‘are not… absolutes’, ‘plucked from a platonic universe of ideal forms’ and operating apart from the common law: Condon at [68] per French CJ. Rather, as French CJ proceeded to explain in the same paragraph of Condon (and consistent with his earlier remarks in International Finance Trust Company [Ltd] v NSW Crime Commission [[2009] HCA 49;] (2009) 240 CLR 319 at [54] on which the appellant relies: [Appellant’s Submissions] at [68]), those characteristics are ‘rooted in the text and structure of the Constitution informed by the common law, which carries with it historically developed concepts…’. This has the implication, at odds with the appellant’s approach, that the Constitutional requirement that courts bear certain characteristics ‘operates within the framework of the rule of law and not outside it’: Condon at [68].

66    For these reasons ground 3 can add nothing to the appellant’s case.

Ground 4

67    Ground 4 concerns the primary judge’s consideration of the s 438 certificate (set out above at [10]). The Minister conceded that the certificate was not valid but contended that the Tribunal did not act on the certificate in the sense referred to in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 (MZAFZ) as the documents which were the subject of the certificate (which were in evidence) could not reasonably have been considered by the Tribunal to be relevant to the appellant’s claims.

68    Contrary to particular (b) of ground 4, the primary judge made no finding as to whether the matters referred to in the documents the subject of the certificate were adverse to the appellant’s claims or not. The primary judge found at [65] that the Tribunal did not have regard to and did not act upon the material the subject of the certificate. The balance of the particulars to ground 4 allege that the primary judge erred in so finding in various respects, including by: denying the appellant procedural fairness (particular (a)); finding that the matters referred to in the documents the subject of the certificate were not taken into account by the Tribunal (particular (c)); erroneously concluding that the appellant suffered no practical injustice (particular (d)); and not following the decisions in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (Singh), and MZAFZ (particular (e)).

69    As the Minister submitted, the Tribunal did not refer to the documents the subject of the certificate in its reasons or raise those documents with the appellant during the hearing. As the primary judge pointed out at [68], there was other evidence (described by the primary judge as “overwhelming”) that was relevant to the Tribunal’s expression of opinion that it had “significant, cumulative concerns regarding the truth of the central aspects of the [appellant’s] circumstances” (at [11] of the Tribunal’s reasons).

70    We accept the Minister’s submission that the facts of the present case were such that it was correct for the primary judge to infer that the Tribunal had no regard to the certificate: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [47]. The primary judge’s approach to the invalid certificate at [68] and [69] (that the documents “could not possibly have affected the outcome of the review”) was consistent with the reasoning in SZMTA at [48] per Bell, Gageler and Keane JJ that:

In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.

71    The primary judge’s approach to the documents the subject of the certificate was not contrary to authority. It is not apparent why Singh or MZAFZ would have required the primary judge to reach a different conclusion from that which he reached. The primary judge’s conclusions at [68] and [69], in our view, were correct. There was no realistic possibility that if the Tribunal had taken the documents into account its decision could have been different.

72    Ground 4 of the appeal must be rejected for these reasons.

Ground 5

73    Ground 5 alleges that the primary judge erred in rejecting ground 1 below. Ground 1 below was to the effect that the Tribunal’s credibility findings were based on a misapprehension of the evidence and were not reasonably open.

74    As to particular (a) of ground 5 (contending that the primary judge did not give reasons for each of the issues raised in ground 1 “but just made general statements”), the allegation is unsustainable in the face of [57] and [58] of the primary judge’s reasons. The primary judge was not bound to give reasons by reference to each of the particulars of ground 1. The primary judge was entitled to deal with the contentions in ground 1 globally. In any event, it is apparent from the first sentence of [58] of his Honour’s reasons that he had considered and expressed clear conclusions that none of the particulars to ground 1 could be sustained. The primary judge’s conclusion that “there were obvious inconsistencies in the [appellant’s] evidence” as to each of the particularised matters in ground 1 (at [58]), and that it was reasonably open to the Tribunal to so find, does not involve any error.

75    In particular, the Tribunal’s reasons at [34], [36], [38], [39] and [57], each of which was impugned in ground 1, clearly explain why the Tribunal found that the appellant was vague, unconvincing and lacked credibility. In these circumstances, the way in which the primary judge dealt with ground 1 in [57] and [58] of his reasons was adequate. The reasons do not comprise mere “general statements”. The reasons explain clearly, even if briefly, why the primary judge rejected ground 1. Brevity of reasons does not equate to inadequacy of reasons.

76    The other particulars to ground 5 do not assist the appellant. The mere assertion that the “matters identified” (inferentially, in ground 1) “clearly showed misapprehension by the Tribunal of the appellant’s evidence” does not advance the appellant’s case on appeal. Nor does the contention that the primary judge “had no answer to clearly stated evidence of the appellant” in particular (b) or the repetition of the contention that “instances of misapprehension were clearly established before his Honour and his Honour had no answer”. These contentions, in substance, involve a challenge to the Tribunal’s assessment of the merits of the appellant’s claims and do not disclose any error by the primary judge.

77    The appellant’s submissions do not advance this ground. The submissions appear to involve a contention that the primary judge gave inadequate reasons for dismissing this ground. The discussion in respect of ground 8 below deals with this argument.

Ground 6

78    Ground 6 alleges that the primary judge erred in rejecting ground 2 below. Ground 2 was to the effect that the Tribunal had made a jurisdictional error by failing to take into account critical information in making the decision. The primary judge rejected ground 2 in [59] and [60] of his Honour’s reasons.

79    The primary judge did not err in so concluding. As the Minister pointed out, the Tribunal in fact referred to all of the evidence which the appellant alleged was not considered by the Tribunal. The contention in particular (a) to ground 6, that the fact the evidence was referred to does not establish that it was considered, does not advance the appellant’s case. The appellant bears the onus of establishing a failure of consideration by the Tribunal. The fact that the Tribunal referred to the evidence in question is powerful evidence against the drawing of any inference of a failure of consideration. The appellant has not advanced any cogent argument as to why an inference of failure to consider evidence should be drawn in the face of the Tribunal’s reasons.

80    Further, as to particular (b) to ground 6, the primary judge was correct to observe in [59] that the Tribunal is not bound to refer to every piece of evidence before it. Contrary to the appellant’s contention in particular (b), this observation does not avoid “confronting and dealing with the issue”. The primary judge’s correct observation was a proper answer to the appellant’s case in ground 2, in respect of which the appellant bore the onus of proof to show the alleged failure of consideration in circumstances where, as a matter of principle, there was no obligation on the Tribunal to refer to each and every piece of evidence on which the appellant relied in support of his claims. As the primary judge also found at [59], the Tribunal made dispositive findings in respect of the appellant’s claims. This correctly reflects the fact that the Tribunal was bound to deal with the appellant’s claims, and did so.

81    Particular (c), to the effect that the primary judge’s reasons failed to deal with the “issue of why the Tribunal failed to deal explicitly with the information that was before the Tribunal”, is difficult to comprehend. The Tribunal was not required to expressly refer to every piece of the evidence, as the primary judge observed at [59]. On the evidence, the primary judge was right in refusing to draw the inference that the Tribunal failed to consider the information identified in ground 2 before his Honour.

82    For these reasons ground 6 must be rejected.

Ground 7

83    Ground 7 alleges that the primary judge erred in rejecting ground 3 below. Ground 3 was to the effect that the Tribunal was biased or created an apprehension of bias in making its overall credibility findings by failing to consider the whole of the evidence, especially the strengths of the appellant’s evidence, and that the Tribunal focused exclusively on the negatives which were “objectively minor matters of fact”. The primary judge rejected ground 3 at [61] and [62] of his reasons.

84    Particular (a) to ground 7 erroneously refers to the primary judge’s reasons at [59] and [60]. In any event, the point made in these reasons at [60] and [75] in relation to these parts of his Honour’s reasons, apply equally to his Honour’s reasons at [61] and [62]. That is, brevity of reasons does not equate to inadequacy of reasons. The primary judge concisely explained why ground 3 could not be accepted and did not make merely “general” statements. The primary judge rejected the allegations of bias and apprehension of bias by reference to the correct tests.

85    The primary judge was correct to reject the allegations of bias and apprehended bias. The Tribunal was entitled to make the observation it did at p 26 of the transcript to the effect that while the rest of the appellant’s evidence seemed to have been given in a “very forthcoming way”, the aspects of his evidence about his family situation in Sri Lanka seemed to be “evolving” and did not “seem to be forthcoming”. The appellant’s assertion of unreasonableness on the part of the Tribunal in so remarking cannot be accepted. As the Minister submitted, this observation by the Tribunal cannot be the basis for any finding of bias or apprehended bias on the part of the Tribunal.

86    The substance of ground 7 in particulars (b) – (g) and the submissions made in support are nothing more than a challenge to the Tribunal’s findings on the merits. As the Minister submitted, nothing is advanced by the appellant as to the logical connection between the approach of the Tribunal and the “feared deviation [by the Tribunal] from deciding the case on its merits.” The Tribunal was entitled to weigh the appellant’s evidence and to give greater or lesser weight to the evidence as it saw fit. The primary judge was correct to conclude at [62] that nothing in the evidence suggests that the Tribunal approached its task other than with an open mind reasonably capable of persuasion or was such that the fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the determination of the matter on its merits.

87    Ground 7 must be rejected for these reasons.

Ground 8

88    Ground 8 alleges that the primary judge erred by failing to give adequate reasons for his decision. Particular (a) alleges that the primary judge did not give “proper reasons” for his dismissal of the application and instead “only made general statements”. Particular (b) alleges that the primary judge did not consider or deal with detailed written or oral submissions of the appellant.

89    It may be accepted that the primary judge was under a duty to give adequate reasons for his decision, but what is adequate depends on the circumstances of the case. It is not the law that judicial reasons must deal with every detailed point which might have been put on behalf of one party or the other. As the Minister submitted, this is not a case comparable with DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 (DAO16) in which the Full Court (Kenny, Kerr and Perry JJ) said at [48]:

the reasoning on the basis of which the primary judge reached his decision in this case is not revealed by his reasons. The primary judge addressed the grounds of judicial review by stating his conclusion for rejecting each ground at such a high level of generality that the basis for the conclusion is not exposed; nor do the reasons disclose that the primary judge considered fundamental aspects of the appellant’s case such as, for example, the challenge to the dismissal by the AAT of the evidence of the 16 witnesses. To find, for example, that adverse findings were open and cannot be said to lack an evident and intelligible justification is merely to assert a conclusion…

90    As observed in DAO16 at [47]:

The requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised: Public Service Board of NSW v Osmond [[1986] HCA 7;] (1986) 159 CLR 656 at 667 (Gibbs CJ). As Mahoney JA stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273:

Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if … by his [or her] reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he [or she] has acted.

91    As we have observed in these reasons at [60], [75] and [84], it may be accepted that the primary judge’s reasons dealt briefly with each of the grounds of the application. But the detail of the submissions put to his Honour on behalf of the appellant did not mean that his Honour’s reasons had to deal in the same level of detail with those arguments in order for the reasons to be adequate. The primary judge’s reasons do not consist of only general statements. The primary judge dealt concisely with the arguments that had been put, in respect of each ground identifying the relevant legal principle and providing the reasons why the ground was not accepted. The conciseness of the primary judge’s reasons does not mean that he was merely asserting conclusions without any explanatory content. In respect of each ground there is disclosed a reasoned basis for the primary judge’s conclusion rather than a mere expression of a conclusion. It cannot fairly and reasonably be concluded that the primary judge’s reasons in the present case failed to apprise the parties in broad outline of the reasoning on which the primary judge relied. Nor can it be concluded that there was some inadequacy in the structure of his Honour’s reasons, as the appellant contended. Contrary to the appellant’s submissions, the primary judge’s duty to give reasons did not require him to refer to the “specific part of the Tribunal’s decision, evidence or … submissions”. Rather, the primary judge was required to expose his reasoning for reaching the conclusions he did. This, his Honour did. The fact that the appellant’s written and oral submissions were extensive did not mean that the primary judge was required to deal with the arguments at equivalent length.

92    We also accept the Minister’s submission that given our conclusions about the grounds of the application before the primary judge (as set out above) there would be no utility in allowing the appeal for the alleged inadequate reasons and remitting the matter to the primary judge. We have concluded above that the grounds of the application before the primary judge are not sustainable. As such, the appeal should not be allowed even if it had been accepted that the primary judge’s reasons were inadequate: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [32].

Conclusion

93    The appeal should be dismissed with costs for the reasons given above.

Associate:

Dated:    11 June 2020