FEDERAL COURT OF AUSTRALIA

AXL16 v Minister for Immigration and Border Protection [2018] FCA 208

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The First Respondent pay the Appellant's costs of the appeal.

3.    The Appellant have leave to file a further amended notice of appeal within seven (7) days hereof in the form provided to the Court on 6 February 2018.

4.    Set aside the orders made by the Federal Circuit Court on 20 July 2017 and in lieu thereof order that:

1.    The Applicant have leave to file an amended originating application by 12 March 2018 in the form provided to the Federal Court on 8 February 2018.

5.    Remit the matter to the Federal Circuit Court for retrial before Street J.

6.    The Appellant be granted a certificate in respect of the new trial under s 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth) stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the Appellant in respect of that new trial.

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

REASONS FOR JUDGMENT

PERRAM J:

I. Introduction

1    This is an appeal from the Federal Circuit Court: AXL16 v Minister for Immigration [2017] FCCA 1687. That Court refused the Appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal. The Tribunal decided to affirm an earlier decision of a delegate of the Minister to refuse the Appellant’s application for a protection visa. The Appellant is a Palestinian who was born in the Ain El Hilweh refugee camp in Lebanon. He has not lived for any extended period of time at that camp since around 2008. For much of that time he has largely been outside Lebanon. The case before the delegate and the Tribunal was that the camp was a lawless place riven by sectarian violence and he would be harmed if he were returned to it. The Tribunal accepted that the camp was a difficult place in which to live and that there was a good deal of violence. However, it concluded that because he was not aligned with any of the warring factions within the camp there was no substantial risk to him if he were to be returned to Lebanon. This conclusion was reached on the basis of a report prepared by the Department of Foreign Affairs and Trade (‘the DFAT Report’) which expressed the view that the risk to persons who were members of the factions involved in the disputes within the camp was greater than for those who were not.

2    In the Federal Circuit Court it was submitted that it was a non-sequitur to conclude that there was no risk of harm to the Appellant from DFAT’s statement that the risk was greater for those who were members of the factions. The Appellant now contends that the Federal Circuit Court failed to address his argument to that effect or failed to give adequate reasons for rejecting it if it did address it. The underlying substantive point is also re-articulated as a ground of appeal, that is to say, the question of whether the Tribunal behaved in the illogical way suggested.

3    For the reasons which follow the second of these contentions should be accepted. The Federal Circuit Court failed to give adequate reasons for its decision. Accordingly, the matter will be retried in that Court.

II. Adequacy of Reasons

4    Before the Federal Circuit Court the Appellant initially pursued a contention that the Tribunal had failed to consider the fact that he was ‘devoid of effective state protection’ within the camp. The difficulty with that argument, which was recorded as the sole ground in his application, is that it is reasonably clear that the Tribunal was, in fact, cognizant of that matter. At [41] it referred to parts of DFAT Report and summarised its contents by saying ‘[t]he camps are not generally subject to Lebanese law and order but have a paralegal system enforced by popular committees and security committees in each camp’.

5    When counsel rose to open the application for the Appellant he indicated to the primary judge that as the argument had been developed in his written submissions it was really a case of legal unreasonableness. Counsel’s written submissions, in fact, advanced an argument that the Tribunal’s finding of fact that the Appellant did not face a prospect of serious or significant harm in the camp was legally unreasonable in the sense discussed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (‘SZMDS’) at [124].

6    Counsel’s attempt to obtain leave to proceed on this argument is recorded in the following terms:

‘Mr Jones:    Yes, your Honour. Now, I have suggested, in my submissions that, in substance, ground 1 raises an argument of legal unreasonableness, as to a finding of fact. That’s because the notion of legal unreasonableness is closely allied to failure to take into account a relevant consideration. So this application, having been filed by my instructing solicitors, I have suggested, in my submission, could be treated by this court, if the court pleases, as raising legal unreasonableness. I’m not sure of the Minister’s attitude to such a course.

His Honour:    Well, to the extent relevant, the argument that you’ve identified, on 12 July, does identify – that is, the argument that you’ve developed.

Mr Jones:    Yes, your Honour.

His Honour:    And the respondent has joined issue with you, so ---

Mr Jones:    Yes. Well, to the extent leave is required, I would seek it.

His Honour:    Well, just to be clear, what you seek to do is have added to the end of ground 1, the words “and is legally unreasonable”.

Mr Jones:    Yes, your Honour.

His Honour:    Ms Douglas-Baker, do you oppose that amendment?

Ms Douglas-Baker:    The application to amend is opposed, only to the extent that it lacks merit.

His Honour:    I understand that. Yes. I propose to grant you leave, Mr Jones ---

Mr Jones.     I’m much obliged.’

7    The ground of review created by this encounter between counsel and the primary judge was in these terms:

‘The Tribunal made a jurisdictional error by failing to consider the fact that the Applicant is devoid of effective state protection within the designated Palestinian refugee camp and is legally unreasonable.’

8    It will be seen that this makes little sense and suffers from the further misfortune of not corresponding with the argument actually advanced in counsel’s written submissions of 12 July 2017. The disjunct between the argument counsel was actually advancing and the one in respect of which the primary judge had granted leave to amend created a potentially problematic situation.

9    Having granted counsel leave to amend his application, his Honour dispensed with the need for any amended document to be filed. This then meant that there now were three cases vying for attention in the courtroom. These were:

(a)    the argument in the application as filed that the Tribunal had failed to find that the Appellant was ‘devoid of effective state protection’ within the camp;

(b)    the argument in counsel’s written submissions that it was legally unreasonable in the SZMDS sense for the Tribunal to find that the Appellant did not face a risk of serious or significant harm if returned to Lebanon and the camp; and

(c)    the problematic argument in amended ground one that the Tribunal erred ‘by failing to consider that the fact that the [Appellant] is devoid of effective state protection within the designated Palestinian refugee camp which was legally unreasonable.’

10    As events transpired it is apparent that the argument that counsel addressed on was (b) which is perhaps unsurprising since it reflected his written submissions. The argument was summarised in the following terms:

‘Mr Jones:    Your Honour, I think this does make it a relatively short point. I don’t see – certainly, from the Minister’s written submissions – any contest as to the content of the law, regarding unreasonableness. So it’s solely a question of whether this court concludes that there is the relevant unreasonableness in the finding that the applicant will not face serious or significant harm in the refugee camp to which he returns, in Lebanon. I take it your Honour has read my written submissions.

His Honour:    Yes.’

11    Having listened to counsel, his Honour then delivered ex tempore reasons for judgment resulting in the dismissal of the application. The first 27 paragraphs of the judgment recite aspects of the Tribunal’s decision. The substantive reasoning is contained at [29]-[32]. However, before turning to that it is necessary first to note [28] where his Honour set out the case he was considering. Omitting particulars this said:

‘28.    The grounds in the application are as follows:-

    Ground 1

1.    The Tribunal made a jurisdictional error by failing to consider the fact that the Applicant is devoid of effective state protection within the designated Palestinian refugee camp.’

12    This was not the Appellant’s case. Whether the Appellant’s case was that contained in his counsel’s written submissions or, instead, the problematic ground created by his Honour’s grant of leave, it was not the ground contained in the unamended application set out at [28]. However, the ground was accompanied by particulars. Counsel for the Minister drew attention to particular (e) which was also set out at [28]. It was in these terms:

‘e.    The Tribunal failed to consider the Applicant’s central claims that inside the refugee camp of Ain El Hilweh, where he resides and being a designated area outside the jurisdiction and control of the legitimate Lebanese authorities would be devoid of the legitimate protection and thus would remain vulnerable to severe or significant harm and is legally unreasonable.’

[emphasis added]

13    This also does not really make sense. But it does suggest a transpositional error. Regardless, it does not reduce the sense of confusion about the nature of the issue.

14    Having identified what was not in truth the Appellant’s case his Honour then dealt with it this way at [29]-[31]:

‘29.    Mr Jones, counsel on behalf of applicant, submitted that the Tribunal’s rejection of the applicant’s claims in respect of the refugee camp and his fear as to being a member of a particular social group as a young Palestinian male targeted by Islamic groups in the refugee camp was legally unreasonable.

30.    Mr Jones of counsel took the Court to parts of the Tribunal’s reasons in respect of the DFAT report concerning the Islamist groups and militias in the particular camp. Mr Jones of counsel accepted and was correct to do so that there was evidence to support the adverse findings by the Tribunal. Mr Jones of counsel submitted that no reasonable Tribunal could come to the decision made by the Tribunal in respect of the applicant’s claims in respect of his fear from the Islamist groups or militia in the camp.

31.    The Tribunal provided rational and logical reasons in support of its adverse findings. Those reasons included explaining the absence of harm that had occurred to the applicant when he had been there, his ability to obtain education and training, as well as the absence of harm to his family. The Tribunal explained that the information, in particular, the media reports identified clashes between the groups and the army, and that the applicant was not a member of any such group.’

15    Attention for present purposes may be confined to [31]. Counsel for the Appellant’s written submissions advanced an argument that at a particular point in the Tribunal’s decision it had engaged in a process of reasoning which had involved a non-sequitur.

16    The alleged non-sequitur was straightforward. The first step was the Tribunal’s acceptance at [63] that:

(a)    the camp was internally militarised and radicalised with Islamist militants;

(b)    significant clashes had occurred in the camp in August 2015 between Islamists and members of the Palestinian Fatah movement;

(c)    this fighting had been caused by the Islamists seeking to take control of the camp and had resulted in the deaths of several people; and

(d)    the camp was reported by January 2016 to have ‘gained notoriety as a refuge for extremists and fugitives’ and that many parts of the camp were lawless (the Tribunal hearing was on 30 March 2016).

17    The second step was the Tribunal’s reasoning at [71] where it concluded that the Appellant faced no real chance of significant harm if returned to this less than hospitable environment. Its reasoning for that conclusion was that:

(a)    the Appellant was not a member of an Islamist group within the camp (and neither were his brothers);

(b)    he would not be forced to join an Islamist group if he returned to the camp;

(c)    he and his family were not involved in political activities within the camp;

(d)    the risk of harm within the camp was greater for those people who are engaged in fighting between the particular groups; and

(e)    therefore, the Appellant did not face a real chance of harm if returned to the camp.

18    Counsel’s submission on this both in writing and in his address was that step (e) did not follow as a matter of logic. One can see some force in that submission.

19    Paragraph [31] of the primary judge’s reasons did not adequately engage with this argument. His Honour said that the Tribunal’s reasons provided ‘rational and logical reasons to support its adverse findings’. But the Appellant’s argument was that the Tribunal’s reasons were not logical or rational because they contained a non-sequitur. That argument could not adequately be disposed of by saying that the Tribunal’s reasons were logical. That was the question not the answer. As events transpire, there may well have been reasons to reject the argument. Reasons for doing so may have included any of the following:

    the non-sequitur alleged did not arise as a matter of logic;

    an illogical step in a process of reasoning to a factual conclusion did not give rise to irrationality in the SZMDS sense;

    the non-sequitur arose but was not material to the ultimate conclusion; or

    it was wrong to approach the question of rationality at the granular level of findings about individual facts.

20    I do not make these points to lend any of them any particular credence. My point is that one can get nothing from [31] which resembles legal discourse of that kind. The consequence is that this Court does not know why the primary judge rejected the Appellant’s argument. Why was the non-sequitur argument unpersuasive? Mr Cleary of counsel, who appeared for the Minister, submitted that those reasons might be found in the second and third sentences of [31]. But the matters set out there do not provide an answer to the non-sequitur point. It is possible that they might have provided a basis for an argument that any want of logic by the Tribunal did not matter because its overall conclusion was rational. Accepting the availability of such an argument at the theoretical level, I do not accept that that is what [31] is attempting to say. If it were, there was no occasion for the first sentence to say that the decision was logical. To the contrary, if that were the reasoning process the Court had engaged in one would expect it to follow after, and explain why, an earlier conclusion of illogicality did not matter. By no amount of examination of [31] can I see such a point being made.

21    I conclude therefore that his Honour’s reasons do not adequately expose his reasons for rejecting the central argument put to him: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [41]. For completeness, I do not see the fact that his Honour’s reasons were delivered ex tempore provides relief from that conclusion (cf. the observations of Flick J in BKL15 v Minister for Immigration and Border Protection [2016] FCA 802 at [16] about ex tempore reasons in the context of high volume jurisdictions such as migration). This is because, even allowing a degree of latitude, these reasons do not suffice.

22    Having failed to give sufficient reasons for rejecting the Appellant’s argument, the primary judge made an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382, 384 and 388.

III. Failure to give proper consideration to Appellant’s case

23    The Appellant’s second ground was that the primary judge failed to give proper consideration to the Appellant’s case. The ground certainly exists in relation to the review of administrative decisions: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45]. To avoid invalidity there must be, under the doctrine, action by the decision-maker ‘to engage in an active intellectual process directed at’ the claim being made.

24    I accept that a similar duty exists in relation to the duty of judicial officers.

25    Notwithstanding some doubts, I think the second and third sentences of [31] show that the primary judge was at least aware of the general area of discourse. It is open to infer that his Honour was aware he was dealing with a rationality/unreasonableness argument. It is true that reference to the central feature of that argument was omitted but, given the seriousness of the conclusion, I do not feel I can find that his Honour failed to engage with the Appellant’s argument in any meaningful sense. No argument was advanced that the primary judge’s reasons were deficient to the extent that there had been a constructive failure by his Honour to exercise the Court’s jurisdiction: COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 (‘COZ16’) at [47] per Griffiths J.

IV. Legal Unreasonableness

26    That leaves the substantive ground pursued in the Court below. In light of the above findings this case has not yet been adequately tried. The Federal Court of Australia Act 1976 (Cth) confers appellate, not original, jurisdiction on the Court in cases such as the present: s 24(1)(d). The exercise of appellate jurisdiction is concerned with the correction of error: Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]-[25]. It would erode the appellate nature of this Court’s jurisdiction if it were routinely to carry out the Federal Circuit Court’s work for it: SZKLO v Minister for Immigration and Border Protection [2008] FCA 735 (‘SZKLO’) at [41] per Flick J. On this basis I decline to decide the substantive ground.

V. Remitter

27    The Appellant sought that the matter be remitted to the primary judge. The Minister made no submission on that issue. There are differing views about whether this should be done. In SZKLO Flick J thought it appropriate to remit the matter back to the judicial officer whose reasons had been found inadequate. In COZ16, Griffiths J reached the opposite view (at [60]). Since the Appellant in this case seeks remitter to the original primary judge it seems to me appropriate to do so.

VI. Costs

28    Both parties are innocent of the error which has been made. Responsibility for the current situation resides in the Federal Circuit Court. The Minister is funded from the Consolidated Revenue. The Appellant is not. He should have a certificate in respect of the costs of the fresh trial under s 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth).

VII. Orders

29    Accordingly, I will make the following orders:

1.    The appeal be allowed.

2.    The First Respondent pay the Appellant's costs of the appeal.

3.    The Appellant have leave to file a further amended notice of appeal within seven (7) days hereof in the form provided to the Court on 6 February 2018.

4.    Set aside the orders made by the Federal Circuit Court on 20 July 2017 and in lieu thereof order that:

1.    The Applicant have leave to file an amended originating application by 12 March 2018 in the form provided to the Federal Court on 8 February 2018.

5.    Remit the matter to the Federal Circuit Court for retrial before Street J.

6.    The Appellant be granted a certificate in respect of the new trial under s 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth) stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the Appellant in respect of that new trial.

Associate:

Dated:    5 March 2018