FEDERAL COURT OF AUSTRALIA

COZ16 v Minister for Immigration and Border Protection [2018] FCA 46

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders dated 15 May 2017 of the Federal Circuit Court of Australia be set aside.

3.    The application for judicial review dated 12 September 2016 be remitted to the Federal Circuit Court of Australia for reconsideration according to law by a Judge of that Court other than the primary judge.

4.    The first respondent pay the appellant’s costs of and incidental to the appeal and the proceedings in the Federal Circuit Court of Australia below.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The appellant appeals against a judgment dated 6 June 2017 of the Federal Circuit Court of Australia (FCCA). The decision is reported as COZ16 v Minister for Immigration and Border Protection [2017] FCCA 979. The primary judge dismissed the appellant’s judicial review application which challenged a decision dated 16 August 2016 of the Immigration Assessment Authority (the IAA) under Pt 7AA of the Migration Act 1958 (Cth) (the Act). The IAA affirmed a decision of the Minister’s delegate not to grant the appellant a protection visa.

Summary of background facts

2    The appellant claims to be a citizen of Sri Lanka. He left that country illegally by boat in August 2012 and entered Australia as an unauthorised maritime arrival on 10 September 2012. He lodged an invalid application for a protection visa in 2013. In December 2015 he lodged a valid application for a Safe Haven Enterprise (subclass 790) visa, which application was refused by the delegate on 12 July 2016. The matter was referred to the IAA for review under Pt 7AA of the Act. The IAA affirmed the delegate’s decision and gave detailed reasons for decision dated 16 August 2016.

3    The IAA summarised the appellant’s claims for protection as follows at [4] of its reasons for decision:

    He is a Tamil Hindu from Kilinochchi district, Northern Province, Sri Lanka.

    From his birth until 2009 he resided in Liberation Tigers of Tamil Eelam (LTTE) controlled areas in the Vanni. Towards the end of the war, as the Sri Lankan Army (SLA) were advancing, his family were constantly moving around to stay within the LTTE controlled areas.

    In April 2009, the SLA captured his area and he and his family were transferred to the Omanthai check point in the Vavuniya where their personal details were recorded. While at the Omanthai checkpoint, two of his siblings (an elder brother and an elder sister) were suspected to be LTTE cadres and were taken from the family. His family were told his siblings would be questioned and released.

    After a few days, he and his family were transferred to an Army camp without his two siblings. He was detained there for approximately six months. Although he was not physically harmed, he feared he would be, particularly as he was interrogated on three occasions by Criminal Investigation Department (CID) officers. The CID officers repeatedly asked if he was a member of the LTTE and if he had connections or links to the LTTE.

    On 16 November 2009, he was released with some of his other family members who were in the camp but the two siblings remain missing to this day. The family now believe both siblings are being held in a secret prison somewhere in Sri Lanka due to their perceived involvement with the LTTE.

    On 3 August 2010, the appellant lodged a complaint regarding his siblings’ disappearance with the Human Rights Commission (HRC) office in Colombo. Around November 2010 the family received a written response from the SLA stating that the siblings were taken into the Army’s custody.

    Approximately one month later, CID officers came and interrogated him at their house for approximately one hour and then left. They repeatedly asked if he was a member of the LTTE, if he helped the LTTE and if he knew of anyone in the area who was connected to the LTTE. From then on, the CID would return and ask those same questions every two to three months. During these interrogations the men spoke aggressively, but he was not physically harmed.

    During August 2012, a few weeks prior to fleeing Sri Lanka, four men claiming to be CID officers came to the family house in search of him. He had never met these men previously and, unlike previous occasions, they did not show their identity cards. They asked the same questions as he had been asked before but also threatened to harm him if he continued to pursue the disappearances through organisations such as the HRC and the International Committee of the Red Cross (ICRC). They said if he did not do as told he would suffer the same fate as his missing siblings.

    He feared the authorities would carry out these threats and departed Sri Lanka in August 2012.

    The appellant’s mother continues to search for his missing siblings to this day.

    He fears being abducted and killed by the Sri Lankan authorities for reasons of his suspected involvement with the LTTE (because he originates from the Vanni, he has family members perceived to be LTTE cadres, he was already suspected and regularly interrogated and has sought asylum in Australia). He also fears being harmed in relation to the threat he received in response to his HRC complaint and because he left illegally.

    He also fears harm from armed Tamil paramilitary groups who remain active in the Northern Province and work closely with the Sri Lankan authorities.

4    The IAA explained why it rejected the appellant’s claim for protection under both the Refugees Convention and complementary protection criteria. The IAA accepted that the appellant was a credible witness and that he had provided “a genuine reflection of his recollections” (at [7]). It accepted that neither the appellant, nor his family (including the two siblings), had any actual involvement with the LTTE and that any interactions with that organisation resulted from the family residing in LTTE controlled areas (at [9]). The IAA accepted that the two siblings were separated from the family and taken for interrogation and also that it was “plausible” that they may have been singled out due to their age, and because LTTE cadres were among the mingling crowds at the checkpoint where they were taken. The IAA also found that as the siblings were never released, the suspicion relating to them never lifted (at [9]).

5    The IAA accepted at [11] that, subsequently, the remainder of the family was taken to a SLA camp for several months and that the appellant was interrogated on suspicion of LTTE links and support, but was not harmed. It found that, because he was not harmed or formally charged or detained for a longer period, the authorities did not believe as at December 2009, when he was released, that he was engaged in LTTE activity.

6    The IAA accepted at [12] that the appellant had complained to the HRC concerning his siblings’ disappearance and that, shortly thereafter, he became subject to ongoing home visits by the CID every two or three months and was interrogated for approximately one hour. The IAA found that the visits and questioning during the period 2010-August 2012 was a result of “routine ongoing monitoring by authorities commonly conducted against Tamils in the Northern Province at that time”.

7    The IAA also found at [13] that the visits were “intimidating” and that the appellant started to look for opportunities to leave Sri Lanka to avoid these “problems”. Nevertheless, the IAA was satisfied that the appellant “was never physically harmed, formally arrested, detained, or taken away for rehabilitation or any other purpose which would indicate that authorities believed he was engaged in LTTE activity or that they imputed him with LTTE membership or support on account of his familial links to his siblings”.

8    At [14], the IAA found that the last home visit and questioning of the appellant which occurred in August 2012 was “different to the previous occasions” in that the persons who interrogated him at that time were unknown and did not identify themselves, even though they asked the same questions about the appellant’s suspected involvement with the LTTE and also the issue of his HRC complaint. The IAA also found at [14] that the appellant was threatened not to pursue the HRC matter.

9    Despite all these findings, which might be described as favourable to the appellant’s case, the IAA concluded at [15] that the situation in Sri Lanka had changed considerably during the four years that the appellant had been in Australia, particularly in respect of the support being provided by the government to families affected by enforced disappearances. This included the fact that the Sri Lankan government had in December 2015 signed the International Convention on Enforced Disappearances and committed to criminalise enforced disappearances. The IAA noted at [16] that although the appellant’s mother had lodged numerous complaints with relevant authorities regarding the missing siblings, she had not been threatened or harmed because of this conduct, nor had any of the appellant’s family been approached by the authorities or unknown men at other times.

10    It is desirable to set out [10], [13], [17]-[19], [24] and [37] of the IAA’s reasons for decision as they bear upon important issues raised in the appeal (footnotes omitted):

10.    I note the UNHCR does include persons with family links to former LTTE combatants or cadres among its risk profiles. However, UNHCR also advises that the issue of whether a person with an identified profile is [sic] need of protection depends on the specifics of the individual case.

…

13.    I accept these visits were intimidating and that the applicant started looking for an opportunity to leave Sri Lanka to avoid these problems. Nevertheless I am satisfied the applicant was never physically harmed, formally arrested, detained, or taken away for rehabilitation or any other purpose which would indicate that authorities believed he was engaged in LTTE activity, or that they imputed him with LTTE membership or support on account of his familial links to his siblings.

…

17.    The circumstances suffered by the applicant’s family are tragic and while I accept that unknown persons threatened the applicant on one occasion, I find it was reflective of harassment and intimidation against some HRC complainants at that time. The applicant lodged the HRC complaint six years ago and his mother has continued to agitate with continued pursuits [sic] and no threats or harm has come to her or any other members of the family. The applicant’s mother’s experience (including in the almost four years he has been in Australia) and the country information above indicates a more transparent environment has developed in Sri Lanka to address the thousands of unresolved enforced disappearances and support the families of missing persons.

18.    I am satisfied that while the applicant was interrogated at the end of the war and was subsequently subject to monitoring, he was not himself perceived as being an LTTE member and did not have a profile that led him to being physically harmed, arrested, or detained by authorities. I find that the threat in August 2012 was an isolated incident in his numerous interactions with authorities over the previous two years. While I note that the government has kept a close watch on the situation in former LTTE controlled areas including the applicant’s Northern Province, the changes in Sri Lanka since the applicant’s departure including for persons of the applicant’s profile are significant.

19.    The situation has markedly improved for Tamils in the broader political landscape. The Sri Lankan constitution provides for race equality and DFAT assesses there are currently no official laws or policies that discriminate on the basis of ethnicity or language. Recent developments in Sri Lanka’s political landscape are significant and indicative of a more positive future for Tamils. DFAT considers the Sirisena government has a more proactive approach to human rights and reconciliation than the previous government. Since taking power in 2015, the Sirisena government has, inter alia, established a new reconciliation taskforce mandated with ‘healing the wounds of mistrust and social and cultural stress generated from extended conflicts between different communities in Sri Lanka’, replaced military governors with civilians governors in the Northern and Eastern Provinces, reduced high security zones, released land formerly held by the military, released some individuals held under the Prevention of Terrorism Act 1979 (PTA) and engaged constructively with the Tamil National Alliance (TNA) and the international community. The August 2015 parliamentary election was deemed credible by international and domestic observers. The Tamil National Alliance (TNA), contesting under the Ilankai Arsu Kachchi (ITAK) won 16 seats, enhancing Tamil representation and the TNA leader, Rajavaothian Sampanthan has been formally appointed opposition leader.

…

24.    I accept the applicant fears becoming victim to an enforced disappearance like his siblings however, as noted above, the security situation for Tamils and others in Sri Lanka has improved. DFAT’s assessment is that since the war’s end, incidences of extra-judicial killing, disappearances and kidnapping for ransom has fallen considerably. DFAT reports that no particular group has been the targeted of kidnapping attacks and they do not appear to be ethnically-based.

…

37.    I have considered the applicant’s circumstances in their totality. I am not satisfied that the applicant, as a Tamil male from the Northern Province, who was not previously considered to be an LTTE member or supporter, even with his family links to suspected cadres, and who was monitored and questioned by the authorities, and threatened once by unknown persons, would result in a real chance that he will be harmed upon return, even though he would be returning to his home region having been charged under the I&E Act and as a failed asylum seeker who spent considerable time in Australia. I do not accept the applicant’s claims either individually or cumulatively give rise to a well-founded fear of persecution in the reasonably foreseeable future upon return.

11    In the light of these matters, the IAA was not satisfied that the appellant faced a real chance of harm from authorities on the basis on his Tamil race, or his Tamil race and origins from the North, nor for familial links to his siblings or complaints to the HRC. It found at [25] that the appellant was not considered a LTTE member and was not considered to meet an LTTE supporter profile.

12    For substantially similar reasons, the IAA rejected the appellant’s claims for complementary protection.

The proceedings below

13    The appellant sought judicial review of the IAA’s decision. He was represented by a solicitor. He raised two grounds. The first was that the IAA had fallen into error by failing properly to consider an integer of his claim. This was particularised by reference to the alleged failure of the IAA “adequately or at all [to] consider the risk to the [appellant] by virtue of his siblings’ suspected links to the LTTE”.

14    Ground 2 alleged that the IAA had failed to give reasons or adequate reasons as to why there was no risk to the appellant, relying upon the same particulars as for ground 1.

15    The primary judge gave ex tempore reasons for dismissing the judicial review challenge. A substantial portion of his Honour’s reasons for judgment (39 of 54 paragraphs) is directed to summarising the IAA’s decision. Only eight of the total of 54 paragraphs are directed to explaining why both grounds of judicial review were rejected by the primary judge. It is desirable to set out those paragraphs in full (i.e. [46]-[53], emphasis added):

Ground 1

46    In relation to ground 1, Mr Hodges took the Court to the material provided by the applicant in support of his application for a protection visa and in particular the details relating to the brother and sister, who were identified by the applicant as missing. It was that brother and sister that the applicant identified in the statutory declaration whom he believed continued to be detained in some secret prison.

47    Mr Hodges also took the Court to the submissions provided to the Authority dated 30 July 2016 and in particular paragraph 6 of those submissions, in which it was argued that it was irrelevant that the siblings were not members of the LTTE or had real LTTE involvement.

48    Mr Hodges drew attention to the second sentence in paragraph 6 of the applicant's submissions, identified in bold, saying that:

What appears to be relevant is that both siblings were arbitrarily detained separated from their family and taken supposedly for ‘questioning’ by the authorities immediately after the war and both siblings remain missing to this date.

49    Mr Hodges took the Court to certain findings of the Authority, including the acceptance of the disappearance of the brother and sister, that the family had been detained for several months, that they had never been released, and the reference by the Authority to accepting the suspicion was never lifted. Mr Hodges went through the reasoning of the Authority and contended that the Authority had failed to properly address the applicant's fears due to the continued missing status of his siblings.

50    Mr Hodges drew attention to the fact that whilst the Authority referred to there being no threats or harm having come to the applicant's mother or other members of the family, the brother and sister remained missing. Mr Hodges submitted that the Authority did not adequately or at all, consider the risk to the applicant by virtue of the siblings' suspected links to the LTTE. I reject these submissions. It is apparent that the Authority took into account the siblings' suspected links to the LTTE in considering the applicant's claims. The Authority expressly did so in its reasons as summarised above.

51    There was no failure by the Authority to consider the familial connection of the applicant to his siblings in relation to the applicant's claims. Further, it is apparent that the Authority expressly referred to having considered the applicant's circumstances in their totality and expressly referred to having considered the applicant's claims individually and cumulatively. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

52    In relation to ground 2, Mr Hodges sought to take issue with the adverse findings made by the Authority in respect of the applicant not being a person at risk. The Authority identified the applicant's mother as having made complaints to the Human Rights Commission and having [sic] the applicant's mother and family continuing to reside in Sri Lanka in the absence of harm to those persons since the applicant's departure of [sic] Sri Lanka.

53    The adverse reasoning of the Authority in relation to the applicant's claims was open on the material and cannot be said to lack an evident and intelligible justification. There is no substance in the contention that the Authority failed to give reasons or adequate reasons as to why there is no risk to the applicant. The Authority explained the significance of the release of the applicant and that he suffered no harm in relation to the interrogations that then subsequently took place and the absence of harm to his mother and other family since his departure from Sri Lanka. On the face of the Authority's reasons, the Authority correctly identified and applied the relevant law. Ground 2 is in substance an invitation to this Court to engage in an impermissible merits review. No jurisdictional error is made out by ground 2.

The appeal

16    The appellant, who was represented by the same solicitor both below and on the appeal, relied upon two grounds in his amended notice of appeal. Ground 1 was that the IAA and the primary judge erred in finding that the appellant would not be at risk due to his family connections to persons with imputed or real LTTE connections. Ground 2 was that the “brevity and content of the primary judge’s reasons amounts to a constructive failure to exercise jurisdiction”. The two grounds overlap in large measure. It might also be added that the error raised by the second ground of appeal is not commonly raised.

17    In support of ground 1, the appellant submitted that both the IAA and the primary judge had failed to engage in an “active intellectual process” with respect to his reliance on the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012 (Guidelines), citing SZVZN v Minister for Immigration and Border Protection [2017] FCA 954. He contended that the “risk profile” identified in the Guidelines relating to persons with family links did not require the appellant to be imputed with LTTE connections or sympathies, and simply required a family link with a person imputed with LTTE connections.

18    In his outline of written submissions on the appeal, and in support of his contentions concerning the Guidelines, the appellant made express reference to sub-paragraphs 2 and 6 of the Guidelines. It appears that the Guidelines were not in evidence, either below or on the appeal. This was pointed out in the Minister’s written outline of submissions on the appeal. The Minister also claimed that neither before the delegate nor the IAA did the appellant make a submission that he came within the Guidelines. As Mr Johnson (who appeared for the Minister on the appeal) acknowledged in oral address, that claim is incorrect. There is a direct reference to the Guidelines in the written submissions dated 30 July 2016 which were provided to the IAA by the appellant’s migration agent. The migration agent claimed there that although neither the appellant nor his siblings were members of the LTTE, his claims fall “squarely within the risk profiles mentioned in the UNHCR Eligibility Guidelines and the more recent DFAT report dated 18 December 2015”. The DFAT report included the following material at paragraph 3.35, which was set out in the migration agent’s written submissions to the IAA (emphasis in original):

Imputed membership of the Liberation Tigers of Tamil Eelam (LTTE)

3.35    The UNHCR’s December 2012 Eligibility Guidelines for Sri Lanka note that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. Although the nature of these links can vary, this may include:

1)    persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

2)    former LTTE combatants or ‘cadres’;

3)    former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);

4)    former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

5)    LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

6)    persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

19    Thus the appellant’s written submissions to the IAA gave clear emphasis to sub-paragraph 6 of the Guidelines.

20    In addition, in his oral submissions to the primary judge, the appellant’s solicitor drew attention to sub-paragraph 5 of the Guidelines in support of the appellant’s judicial review application. The solicitor emphasised the numerous favourable findings made by the IAA which supported the appellant’s claims.

21    The appellant’s solicitor, in his outline of written submissions on the appeal, submitted that although the IAA noted at [10] of its reasons for decision that the Guidelines included persons with family links, it did not make a finding in relation to the appellant specifically. While acknowledging that the IAA stated at [10] of its reasons for decision that the issue of whether a person with an identified profile was in need of protection depends on “the specifics of the individual case”, the appellant contended that the IAA did not in fact consider his case individually.

22    As to Ground 2, the appellant claimed that the primary judge had failed to provide clear reasons for his decision. He cited the High Court’s decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [25]. This passage refers to the duty of the Refugee Review Tribunal to review a decision and that a failure to make an obvious inquiry about a critical fact could, in some circumstances, amount to jurisdictional error by a constructive failure to exercise jurisdiction.

23    The appellant here contended that the primary judge had the same duty as the Tribunal to review a decision in order to determine whether a “jurisdictional error” has been made. He said that this duty required the primary judge to make findings on any “substantial, clearly articulated argument relying upon established facts”, citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 (Dranichnikov) at [24] per Gummow and Callinan JJ (Hayne J agreeing).

24    The appellant relied upon his solicitor’s oral submissions to the primary judge relating to the detention of the two siblings. While acknowledging that the IAA found that none of the family had any actual LTTE connections, the solicitor submitted that as the siblings were still in captivity, the appellant might be at risk “for some random reason that has no foundation of fact”. On the appeal, it was submitted that the primary judge rejected this ground by stating at [50] that the IAA took into account “the siblings’ suspected links to the LTTE in considering the [appellant’s] claims”. The appellant contended that the primary judge failed to give any consideration to his solicitor’s submissions as summarised immediately above.

25    Similarly, the appellant contended that the primary judge failed to consider his solicitor’s “substantial and clearly articulated submission in relation to the interrogation” in August 2012 and that it was “incumbent” on him to consider the effect of the difference between that interrogation and earlier interrogations. Accordingly, it was contended that the primary judge failed to engage with the substance of the appellant’s submissions below.

26    A copy of the transcript of the FCCA proceeding below was in evidence on the appeal. After noting that the IAA did not make any findings as to why the two siblings had been detained (in circumstances where it found that none of the family had actual, or any, LTTE connections), the appellant submitted to the primary judge that, in assessing the possible risk to him if he were returned to Sri Lanka, the IAA had to consider the possibility that, similar to his siblings (who remain missing), the appellant might be at risk in circumstances where it was clear that the siblings “were taken for convention reasons”. The solicitor submitted that the first ground of the appellant’s judicial review application was to the effect “that the circumstances of the [appellant] fall within the profile, which is constantly referred to in the Sri Lankan cases, that my client is family – person with a family link to persons with the above profiles”. The solicitor drew the primary judge’s attention to the fact that one of the risk profiles in the Guidelines is “persons perceived as having had links to the Sri Lankan diaspora that provided funding and other support to the LTTE”. This is an apparent reference to sub-paragraph 5 of the Guidelines, which was included in the extract set out in the appellant’s migration agent’s written outline of submissions to the IAA (see [18] above). The solicitor submitted to the IAA that the detention of the two siblings was “random” and that, in assessing the possible risk to the appellant, the IAA had to consider the possibility that the appellant might be at risk for some similar random reason, as had occurred with his siblings and who remained missing.

27    The transcript records the primary judge as observing that the Minister contended the IAA had expressly addressed the appellant’s familial links to his missing siblings, having regard to the contents of [13] of the IAA’s reasons for decision (which is set out in [10] above). His Honour also drew attention to [37] of the IAA’s reasons for decision as containing a reference to the IAA having considered “the [appellant’s] circumstances in their totality” (which is also set out in [10] above). In response to those observations, the appellant’s solicitor submitted below that the appellant never complained that he suffered harm because of his perceived LTTE connections. Rather, the appellant’s solicitor explained that his client relied on the events relating to the disappearance of his siblings. Thus, the crux of his submission was that it was no answer that the IAA considered that the appellant personally did not face harm due to perceived LTTE connections because he previously had never been physically, harmed, arrested, detained or taken away.

28    In oral submissions in reply below, the appellant’s solicitor reinforced his contention that, because the siblings remained missing after eight years without explanation and, given the appellant’s familial links with those siblings, the appellant was fearful that he would meet a similar fate if he were returned to Sri Lanka notwithstanding the significant changes which had occurred since he left that country.

29    The appellant’s solicitor also made oral submissions below as to why the appellant contended that the visit by the unknown men in August 2012 was “different” from the earlier occasions. He submitted that this was because the men “did not show their identification or disclose who they were, and clearly in that situation, the threat was much more ominous”.

Disposition of the appeal

30    As noted above, the two grounds of appeal overlap. In particular, both grounds raise the question whether the primary judge failed adequately to explain why he rejected the appellant’s two judicial review grounds and, also, whether his Honour addressed the appellant’s primary submissions in support of his judicial review challenge. These matters raise the issue whether there was a constructive failure on the part of the primary judge to exercise his judicial review jurisdiction. In circumstances where this issue is directly raised by ground 2 of the amended notice of appeal, it is convenient to deal with that ground first whilst also noting the overlap with ground 1.

Ground 2 on the appeal: constructive failure to exercise jurisdiction

31    The appellant relied upon two primary matters in support of his contention that there was a constructive failure by the primary judge to exercise jurisdiction. Those matters are, first, the claim that the primary judge failed to provide “clear reasons” for rejecting the appellant’s judicial review application. The second matter is the appellant’s claim that the primary judge failed to make findings on a “substantial, clearly articulated argument relying upon established facts”, citing Dranichnikov.

32    The Minister accepted that a failure by a judge to give adequate reasons may amount to an error of law, citing authorities such as Pettitt v Dunkley [1971] 1 NSWLR 376; Housing Commission of New South Wales v Tatmar Pastoral Co. Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Mifsud v Campbell (1991) 21 NSWLR 725 and SZKLO v Minister for Immigration and Citizenship [2008] FCA 735; 247 ALR 582 (SZKLO) at [26] per Flick J). In SZKLO, Flick J identified the following reasons for requiring judges to provide adequate reasons for their decisions:

(a)    the obligation arises as a matter of judicial duty and enables an appeal court to determine whether or not the primary judge’s decision was or was not affected by error of law or an appealable error (at [19]);

(b)    the failure to provide adequate reasons may lead to a real sense of grievance by the unsuccessful party who does not know or understand why the decision was made (at [19]); and

(c)    the need to maintain public confidence, respect and faith in the judicial system, recognising that lower courts play an important role as they have to deal with so much work and usually come into contact with more litigants than do higher courts (at [20]).

33    In SZKLO Flick J said the following at [26] with respect to the requirements of the reasons of a primary judge in exercising a judicial review jurisdiction:

26    Whatever the ground of review, however, the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that Court proceeded and the reasons why the application to review the decision of the Tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons do not adequately address the grounds of review sought to be resolved if the litigant – or this Court – is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision.

34    Justice Flick repeated and expanded upon these matters in BKL15 v Minister for Immigration and Border Protection [2016] FCA 802 at [8]-[16]. It is important to note what his Honour said at [16] concerning ex tempore reasons for judgment:

16    But the standard is not a standard of perfection. The judicial context in which decisions are made must necessarily be recognised - including (for example) a recognition whether a decision is of an interlocutory or final character and whether ex tempore reasons have been provided. Indeed, the very prospect that ex tempore reasons may not adequately address the issues under consideration should sound a note of warning to the primary judge about the need to reserve a decision for greater consideration. When an ex tempore judgment is delivered, however, it “should not be picked over” and “appropriate allowance should be given for the pressures under which judges… are placed by the volume of cases coming before them”: Maviglia v Maviglia [1999] NSWCA 188 at [1] per Mason P; Cicek v Estate of the late Mark Solomon [2014] NSWCA 278 at [140] per Ward JA (Meagher and Barrett JJA agreeing); Mega-Top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402 at [24] per Leeming JA (Gleeson JA and Emmett AJA agreeing). Matters of complexity requiring “judicial reflection” do not usually lend themselves to ex tempore reasons for judgment: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [102] per Bergin CJ in Eq. See also: [2015] NSWCA 373 at [180] per Emmett AJA. The understandable desirability, especially in a high volume jurisdiction such as migration, of delivering ex tempore reasons may sometimes achieve expedition in decision-making at the expense of justice. The “overarching purpose of the civil practice provisions” found in s 37M of the Federal Court of Australia Act 1976 (Cth), it should constantly be recalled, includes as an objective “the just determination of all proceedings” and not merely a determination which is quick and inexpensive. No procedure should be encouraged, be it by way of ex tempore judgments or otherwise, which sacrifices the need for any Court to achieve a “just determination” of a proceeding before it and a determination “according to law”.

35    I respectfully agree with Flick J’s observations in both SZKLO and in BKL15. It is also apposite to note French CJ’s statement in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [67], where his Honour described the provision of reasons for a court’s decision as one of the “defining characteristics which mark a court apart from other decision-making bodies” (to similar effect see the observations of French CJ and Kiefel J in Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54], where their Honours described the public explanation of reasons for final decisions as central to the judicial function). Adequate reasons must be given by judges so as to reassure litigants and the public that the judicial function is being properly performed.

36    On the issue of the adequacy of a judge’s reasons in a judicial review context, reference should now also be made to the very recent decision of the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (DAO16) at [46]-[48] per Kenny, Kerr and Perry JJ. At [47]-[48] their Honours made the following obiter observations on the obligation of a judge to provide adequate reasons for his or her decision:

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) 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.

48    However, 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: see above at [25].

37    In DAO16, the Full Court considered that the primary judge had not only failed to provide adequate reasons for his decision, but also that the reasons which were provided did not reveal that fundamental aspects of the appellant’s case had been considered.

38    The failure to address fundamental aspects of a party’s case may give rise to procedural unfairness or, in an appropriate case, be characterised as a constructive failure to exercise jurisdiction. For example, in Dranichnikov, Gummow and Callinan JJ (with whom Hayne J agreed) accepted that a failure by the then Refugee Review Tribunal to respond to a “substantial, clearly articulated argument relying upon established facts” could amount to a failure to provide natural justice or “as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction”. Their Honours held that the Tribunal had failed to determine a matter which was put to it, namely that Mr Dranichnikov feared persecution for a Convention reason (being his claimed membership of a social group which was described as entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals), whereas the Tribunal determined the matter on the basis of his membership of a broader social group, which the Tribunal described as “businessmen in Russia”. Their Honours considered that this amounted to a constructive failure to exercise jurisdiction which entitled Mr Dranichnikov to constitutional writ relief under s 75(v) of the Constitution.

39    Justice Kirby adopted a similar view in Dranichnikov at [88]. While noting that not every mistake in reasoning to a conclusion will amount to a constructive failure to exercise jurisdiction, his Honour added that where the mistake amounts to “a basic misunderstanding of the case brought by an applicant” the flaw may be so serious as to undermine the lawfulness of the decision in a fundamental way.

40    Dranichnikov involved a constructive failure to exercise jurisdiction by a statutory administrative tribunal. It is clear, however, that similar principles apply to the exercise of jurisdiction by a court of law. The failure of a judicial officer to provide adequate reasons is sometimes expressed as an error of law but is also described in other cases as a constructive failure to exercise jurisdiction. This is illustrated by the decision of the Court of Appeal of New South Wales in Goodwin v Commissioner of Police [2012] NSWCA 379 (Goodwin) per Allsop P, Basten JA and Young AJA.

41    In an earlier decision of that Court (Goodwin v Commissioner of Police [2010] NSWCA 239), a judgment of the District Court was set aside and the matter was remitted for reconsideration by the same primary judge. The matter came again before the Court of Appeal by way of an appeal under s 142N of the District Court Act 1973 (NSW) (which requires there to be an error “in point of law”). The appellant claimed that the primary judge conducting the remitted hearing was ostensibly biased and constructively failed to exercise jurisdiction. The basis for the claimed constructive failure to exercise jurisdiction related to the primary judge’s failure to take into account relevant and uncontested evidence going to primary issues for determination (namely whether the plaintiff was suffering from PTSD and, if so, whether his major depression was a consequence of that disorder), and by making findings that were not open on the evidence. The leading judgment in the Court of Appeal was given by Basten JA, who analysed some previous authorities concerning the notion of a constructive failure to exercise jurisdiction. His Honour noted at [22] that acting without evidence or without giving reasons may lay the basis for a finding of error, which can be expressed in various ways, citing the Full Court’s decision in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [12] per Allsop J, with whom Moore and Tamberlin JJ agreed. Basten JA stated at [22] in Goodwin that it was apparent that “a range of circumstances may lead a decision to be clothed in a variety of pejorative epithets, all of which describe a failure to exercise jurisdiction, sometimes called “a constructive” failure, because the tribunal has purported, but failed to do that which is required”.

42    Reference was also made in Goodwin at [23] to another decision of the Full Court in LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166. There the Full Court noted at [5] that the AAT had simply reproduced as its reasons the submissions of one party without attribution, which gave rise to “a serious concern that the Tribunal has failed to bring its own mind to bear on the issues before it and thus it had constructively failed to exercise its jurisdiction”.

43    At [25] of Goodwin, Basten JA stated that where an appellant alleges error in fact-finding by a primary judge, the appeal court in performing its statutory appeal function had to “engage with the evidence in relation to the area in dispute”. His Honour observed at [25] that the same principle applies to a trial court.

44    In Goodwin, the primary judge’s reasons for judgment were closely examined and analysed by the Court of Appeal. Various issues, which were described by Basten JA at [105] as being “critical” to the disposition of the plaintiff’s claim, were found not to have been addressed by the primary judge “in a fashion which considered, let alone determined, their significance”. This was so notwithstanding that the primary judge had produced what was described as “a lengthy judgment”. Moreover, Basten JA found at [106] that the primary judge appeared to have accepted the evidence of a medical expert on relevant matters relating to the plaintiff’s claim that he was entitled to relief because of PTSD and depression, yet then ignored that evidence.

45    The Court of Appeal’s essential reasons for upholding the appellant’s claim that there had been a constructive failure by the primary judge to exercise jurisdiction is reflected in [108] of Basten JA’s judgment:

108    In the circumstances, there has been a constructive failure to exercise the jurisdiction conferred on the Court. There was a failure to deal with central elements of the appellant's case. Rather, a conclusion was reached which was inconsistent with facts and opinions which were recounted and not rejected. It was also reached without any coherent analysis of the appellant's own evidence as to the effects of the traumatic events on him.

46    Goodwin helpfully identifies some of the relevant principles concerning the ground of a constructive failure to exercise jurisdiction, but each case necessarily will turn on its own particular facts and circumstances. An important matter which must be taken into account in considering the application of this ground relates to the nature of the jurisdiction being exercised by both the trial court and the appeal court. In Goodwin, the trial court was exercising original jurisdiction and the ambit of the statutory right of appeal in that case was expressed by reference to there being a grievance “in point of law”. In the present appeal, which is brought under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), the issue is whether the primary judge fell into appealable error in exercising the FCCA’s original jurisdiction under s 476 of the Migration Act 1958 (Cth) in dismissing the appellant’s claim that the IAA had fallen into jurisdictional error. It is also relevant to take into account the fact that, because the FCCA was exercising a judicial review jurisdiction, it was not a matter for that Court to make findings of fact. Generally speaking, that is the province of the administrative body whose decision is being judicially reviewed. That is not to deny, however, that such a body’s factfinding may itself be amenable to judicial review on various grounds (see, for example, CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [44]-[47] per Griffiths, Perry and Bromwich JJ and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ).

47    In my respectful view, for the following reasons there has been a constructive failure to exercise jurisdiction in this case. First, the brevity of the primary judge’s substantive reasoning for rejecting the two grounds of judicial review has already been noted. The primary judge explained in six short sentences in [50] and [51] as to why ground 1 was rejected (see [15] above). The primary judge’s reasons for rejecting ground 2 are set out in [53] of his Honour’s reasons for judgment. In both instances, the primary judge’s reasons amount to little more than assertions or conclusions. In particular, in respect of ground 1, the primary judge found that the IAA had taken into account the siblings’ suspected links to the LTTE. His Honour said that this matter had been expressly taken into account in the IAA’s reasons “as summarised above”. No specific cross-reference was given to any particular part of the IAA’s reasons for decision which the primary judge considered supported his conclusions. In particular, no specific cross-reference is given for his Honour’s conclusions that:

(a)    the IAA took into account the appellant’s siblings’ suspected links to the LTTE; and

(b)    there was no failure by the IAA to consider the familial connection of the appellant to his siblings.

48    These difficulties are not overcome by the fact that in [37] of the IAA’s reasons for decision it stated that it had considered the appellant’s circumstances “in their totality”. It seems, however, that the primary judge viewed this statement as determinative (see [51] of his Honour’s reasons). Whether in fact the IAA considered the appellant’s circumstances in their totality fell to be determined not by a mere assertion to that effect by the IAA, but by a careful objective analysis of the IAA’s reasons and the relationship of those reasons to the claims and submissions advanced before it by the appellant. The primary judge conducted no such analysis or evaluation and simply accepted and acted upon the IAA’s bald assertion.

49    Similar difficulties are presented by the inadequacy of the primary judge’s reasons for rejecting ground 2. In [52] of his Honour’s reasons for judgment, the primary judge referred to the IAA’s identification of the appellant’s mother as a person who had complained to the HRC, yet she and other members of her family continued to reside in Sri Lanka in the absence of any harm during the period since the appellant left Sri Lanka. His Honour then said at [53] that the IAA’s adverse reasoning “was open on the material and cannot be said to lack an evident and intelligible justification”. As the Full Court observed in DAO16 at [48], to simply state that adverse findings were open and cannot be said to lack an evident and intelligible justification is merely to assert a conclusion.

50    As to the appellant’s complaint that the IAA failed to give adequate reasons as to why he was not at risk, the primary judge referred at [53] to the significance which the IAA attached to the appellant’s release and its finding that he suffered no harm from the interrogations. Reference was also made to the IAA’s findings that neither the mother nor other members of the appellant’s family been harmed since he left Sri Lanka. What is missing from the primary judge’s reasons, however, is any attempt to address the appellant’s reliance on the Guidelines, or the significance of his uncontested evidence that his siblings were still missing.

51    Nor does the primary judge adequately explain why he did not accept the significance in the appellant’s case of his claim that he had been threatened in August 2012 with the same fate if he were to continue to complain to the authorities about their disappearance. This threat, which the IAA found had been made, arguably put the appellant in a different position from his mother. It is possible that the primary judge had this claim in mind in [53] of his reasons for judgment and the reference there to the appellant having “suffered no harm in relation to the interrogations that then subsequently took place…”. But it is far from clear that this is what his Honour had in mind, bearing in mind that the appellant’s complaint was not that he had suffered harm in relation to the August 2012 interrogation, but rather that he was threatened with harm on that occasion if he persisted with his complaints concerning his siblings’ disappearance. This ambiguity further exposes the inadequacy of the primary judge’s reasons.

52    These matters were relied upon by the appellant before the IAA. They were also prominent in his judicial review challenge before the FCCA. In my respectful view, the matters had to be directly addressed by the primary judge, but they were not. Both the appellant and any reader of his Honour’s reasons for judgment is left to speculate as to why these matters were not viewed to be relevant and significant, and arguably provided some support for the appellant’s judicial review challenge.

53    Secondly, and related to the first matter, the primary judge never grappled directly with important elements of the appellant’s primary claim. That claim was that the IAA fell into jurisdictional error in failing to consider the risk to the appellant by virtue of his imputed links to the LTTE by reason of his family association with the two missing siblings. At the forefront of this claim the appellant relied on three paragraphs in the Guidelines which identified “risk profiles”, in particular sub-paragraph 6. The primary judge made no reference at all to the Guidelines. Nor did he explain why the appellant’s reliance on them was misconceived.

54    It may well be that there is an adequate explanation as to why the Guidelines did not apply. But, if that is so, it is not evident from a fair reading of the primary judge’s reasons for judgment. The appellant (and, indeed, any other reader of the reasons) is simply left to speculate as to why relevant parts of the Guidelines, which the appellant squarely raised before both the IAA and the primary judge, did not indicate that he had a risk profile. The primary judge found that the IAA had taken into account the siblings’ suspected links to the LTTE and also that it did not fail to consider the familial connection. But, as noted above, the primary judge made no express cross-reference to any part of the IAA’s reasons for decision to underpin these assertions. One rhetorically asks whether his Honour had in mind the IAA’s reasons at [10] and/or [13] of its reasons for decision. If so, a related question arises as to how these paragraphs provide an adequate response to the appellant’s claims. It was an important part of his case that, in spite of all of the reforms which have taken place in Sri Lanka in recent years, his two siblings remained missing and that he was threatened with the same fate if he continued to complain about their disappearance.

55    It goes without saying that these ambiguities and shortcomings in the primary judge’s reasons for judgment are not resolved by reference to what was said in the transcript. Reasons for judgment should speak for themselves. They are directed not only to the parties but to the community at large who will not have easy access to the transcript.

56    It is proper to acknowledge that the FCCA’s migration jurisdiction is a high volume and challenging jurisdiction. Equally, however, it must be recognised that that Court is exercising an important judicial review jurisdiction and litigants are entitled to expect that the well-established features of the judicial process will be provided. Those features include not only the requirements of procedural fairness, but also that the Court will provide adequate reasons for its decision and properly address fundamental aspects of the parties’ respective cases. Depending on the circumstances of any case, including the detail and complexity of the submissions which are made, it may be appropriate to provide relatively brief reasons for rejecting a party’s case. It may also be appropriate in some cases for the Court to deliver ex tempore reasons for decision, but this does not mean that the Court is somehow excused by that method of decision-making from adequately disclosing the Court’s reasoning processes, having regard to the general principles and considerations outlined in [32]-[46] above.

Ground 1 on the appeal: the appellant’s risk profile

57    Strictly speaking, having regard to the appellant’s success on ground 2 of the appeal, it is not necessary to determine ground 1 (although it is reiterated that there is some overlap between the two grounds).

58    In essence, the appellant complains in ground 1 of the appeal that both the IAA and the primary judge erred in rejecting his claim that he was at risk of harm due to his familial connections with his two missing siblings. As has been repeatedly emphasised, in advancing this claim the appellant relied heavily on sub-paragraph 6 of the Guidelines.

59    The Guidelines were referred to by the IAA in [10] of its reasons for decision, albeit indirectly. In substance, however, by ground 1 of his judicial review application below, the appellant contended that the IAA had fallen into jurisdictional error because it had misapplied the Guidelines. This alleged misapplication was said by the appellant to be evident in [13] of the IAA’s reasons for decision. His complaint was that [13] suggested that the IAA believed that, for the family link profile to arise, the appellant had to be imputed with LTTE connections or support whereas, on the appellant’s case, sub-paragraph 6 of the Guidelines merely required there to be a family link with another member of the same family who themselves were imputed with LTTE connections. Resolution of this complaint required the primary judge to address and construe the terms of the relevant part of the Guidelines and to determine whether the IAA had fallen into jurisdictional error in its construction and application. As noted above, there is no express reference to the Guidelines in his Honour’s reasons for judgment. Nowhere does his Honour directly address the detailed legal argument raised by the appellant in support of ground 1 below. Although the primary judge found that the IAA had in fact taken into account the familial connection, his Honour failed to address the issues raised by the appellant concerning the proper construction and application of the Guidelines. This failure is best characterised as contributing to why the primary judge constructively failed to exercise his jurisdiction. It is unnecessary to give the error any other characterisation. On the remitter, it will be necessary for the appellant’s legal contentions concerning the proper construction and application of the Guidelines to his circumstances to be addressed and determined.

Conclusion

60    For these reasons, the appeal should be allowed. The orders dated 15 May 2017 should be set aside and the matter remitted to the FCCA for reconsideration according to law. In the circumstances, it is appropriate that the matter be reconsidered by a judge other than the primary judge, as sought by the appellant. In resisting such an order, the Minister relied upon SZKLO. In my view, however, that case is distinguishable on this issue having regard to the absoluteness of the primary judge’s findings (or perhaps, more accurately, assertions) in the present case. Considerations of apprehended bias based on prejudgment suggest that the preferable course is to have another judge conduct the reconsideration.

61    It is not appropriate that the matter be remitted to the IAA for reconsideration according to law, as sought by the appellant. It is not the function of this Court to step into the shoes of the FCCA and determine the judicial review application as though this Court was exercising the FCCA’s original jurisdiction. It is essential to the proper administration of justice in this country that the FCCA properly discharge its important jurisdiction involving judicial review of migration decisions. This is a different but no less important jurisdiction to that of an appellate court.

62    The Minister did not contest that costs should follow the outcome of the appeal. The appellant sought an order for costs in respect of this appeal and the below proceedings in the FCCA.

Associate:    

Dated:    6 February 2018