FEDERAL COURT OF AUSTRALIA

CXJ16 v Minister for Immigration and Border Protection [2018] FCA 391

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent fixed in the amount of $2,300.

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

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding is a citizen of Nepal.

2    He arrived in Australia in May 2007 on a student visa.

3    In February 2014 he applied for a Protection (class XA) visa. A letter he provided in support of his application claimed that he had “adopted the Christian faith and [has] a genuine fear of persecution if [he was] to return to … Nepal on the grounds of [his] having denounced Hinduism and adopted Christianity when in Australia”. The letter annexed a series of articles characterised as “Persecution Reports in Nepal”. The form of application itself asked the question of any applicant: “What do you fear may happen to you if you go back to that country?” The substance of the answer provided by the now-Appellant was as follows (without alteration):

I truly believe that Nepal is not tolerant of those citizens who convert to another religion from Hinduism particularly of those who convert to christianity as Nepal’s constitution is based on the Hindu faith and my family and what I have seen and read in news and information on Nepal I believe truly that in Nepal those known to be converts are ostricsied from the community and subject to all sorts and forms of abuse, public humiliation and persecution whether publically or otherwise physically, psychologically and mental tourment.

The Hindu high preiests are the real people who run the country behind the scene disguised in the politicians that they promote and the lives of ordinary citizens is run by them as well.

I will be providing a more details personal statement explaining what I have experienced to this date in support of my application.

No “more details” were in fact provided.

4    An interview with the delegate took place on 20 February 2015. The delegate made his decision on the same day. The now-Appellant was informed of the decision to refuse the visa application by a letter dated 23 February 2015. The delegate concluded that the Appellant had a right to enter a third country (India) and hence could not claim refugee status in Australia.

5    An application for review of the delegate’s decision was filed with the then Refugee Review Tribunal. The Tribunal affirmed the delegate’s decision in September 2016: Re 1502907 (Refugee) [2016] AATA 4489. In doing so, however, the Tribunal pursued a different course than that plotted by the delegate – the Tribunal reviewed the facts and materials provided by the now-Appellant and concluded (inter alia) that if he returned to Nepal there was not a real chance he would “face serious harm for reasons of religion or any other Convention related reason”: [2016] AATA 4489 at [44].

6    The Appellant then sought review of the Tribunal’s decision in the Federal Circuit Court of Australia. The only Ground of Review there relied upon was stated as follows:

The Tribunal failed to appreciate my mental state and lack of capacity and in the circumstances has not provided me with a real and meaningful hearing, in breach of section 425 of the Migration Act

An affidavit of the Appellant filed in that Court, however, further stated:

I believe that the AAT did not consider the social, spiritual and legal implication of my converting to Christianity in Nepal

That Court dismissed that application in June 2017: CXJ16 v Minister for Immigration and Border Protection [2017] FCCA 1239.

7    The Appellant now appeals to this Court from the decision of the Federal Circuit Court. He appeared unrepresented with the assistance of an interpreter. The Respondent Minister appeared by his solicitor.

8    The Grounds of Appeal as set forth (without alteration) in the Notice of Appeal provide as follows:

1.    DIBP, AAT and Federal Circuit Court of Australia did not investigate properly about the danger facing by Christian Community in Nepal.

2.    DIBP did not examine the facts about the danger I face due to change the religion from Hindu to Christian should I go back to Nepal.

The reference to “DIBP” is a reference to the Department of Immigration and Border Protection; the reference to the “AAT” is a reference to the Administrative Appeals Tribunal, namely the Tribunal that assumed the jurisdiction previously exercised by the Refugee Review Tribunal.

9    The appeal is to be dismissed with costs.

A failure to investigate?

10    The insurmountable difficulties confronting the first Ground of Appeal are at least twofold, namely:

    it was not an argument previously advanced for consideration by the Federal Circuit Court; and/or

    there is no universal obligation to “investigate”, let alone “investigate properly”, a claim made by an applicant seeking a protection visa.

11    As to the former reason, the only Ground of Review relied upon before the Federal Circuit Court cannot be construed as an argument alleging a failure to investigate the Appellant’s claims. The Ground of Review relied upon before the Federal Circuit Court was very much directed to the question as to whether the Appellant’s mental capacity had deprived him of an opportunity to be heard. That question was addressed by the Federal Circuit Court and resolved against the now-Appellant.

12    Nor could the claim made in the affidavit alleging a failure to “consider the social, spiritual and legal implication of [the now-Appellant] converting to Christianity in Nepal” be easily construed as advancing the argument now cast as a failure to investigate. That claim was very much an argument alleging a failure to consider aspects of the claims made or the implications arising from the claims made. Although the Tribunal is required to consider all substantive issues which are raised by the materials before it, including claims which are not clearly articulated (cf. SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 at [8] per Weinberg, Stone and Jacobson JJ), the claim made in the affidavit cannot be characterised as a contention that the Tribunal erred by failing to investigate “the social, spiritual and legal implication of converting to Christianity in Nepal”.

13    Even if the Ground of Review relied upon before the Federal Circuit Court or the claim made in the affidavit could be relied upon as a claim that there was a failure on the part of the Tribunal to “investigate”, the second insurmountable difficulty confronted by the Appellant is that the argument now sought to be raised both:

    misconceives the functions entrusted to the Tribunal; and

    asserts error on the part of the Tribunal by reason of the fact that it “did not investigate properly” in circumstances where the Tribunal was not required to undertake any such investigation.

A further difficulty is that:

    the Tribunal, more so than the delegate, did in fact consider the claims and evidence advanced by the now-Appellant as to the dangers faced by the “Christian Community in Nepal” and there were no further claims or evidence identified by the Appellant which required “investigation”.

The task of the Tribunal is primarily to resolve the claims made by a claimant on the basis of the materials placed before the Tribunal by the claimant. In Abebe v Commonwealth [1999] HCA 14, (1999) 197 CLR 510 at 576 Gummow and Hayne JJ thus summarised the position as follows:

[187]    … The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

Gummow and Heydon JJ made similar observations in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [57], (2003) 77 ALJR 1909 at 1918 to 1919. The Tribunal, it has been said, “has no general obligation to initiate enquiries or to make out an applicant’s case for him or her”: Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60], (2007) 164 FCR 151 at 172 per Kenny J.

14    Rather than it being the task of the Tribunal to “investigate properly”, it was primarily the responsibility of the Appellant to place before the Tribunal such material as he thought supported the claims made.

15    Circumstances may arise, however, where the materials before the Tribunal give rise to further avenues of inquiry or give rise to the prospect that further material relevant to the claims made may be readily available. A recurring difficulty in such cases is the identification of those circumstances in which the Tribunal should itself initiate the pursuit of further inquiries. The pursuit of further inquiries in such circumstances is consistent with the function of the Tribunal being inquisitorial rather than adversarial.

16    Numerous attempts have been made by Judges of this Court to identify those circumstances in which an administrative decision-maker may be exposed to a requirement – sometimes expressed as a “duty” – to make inquiries. The attempt to identify those circumstances has from the outset been recognised as being within a “strictly limited” compass: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 to 170. When entertaining an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth), Wilcox J there observed:

I express no more than a tentative view. … Under s 5(1)(e) and s 5(2)(g) the court is concerned with the manner of exercise of the power. A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision – which perhaps in itself, reasonably reflects the material before him – in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.

The observations of his Honour were subsequently the subject of attention in numerous authorities: e.g., WADF v Minister for Immigration & Multicultural Affairs [2002] FCAFC 151 at [17] per Emmett J (Gray and Nicholson JJ agreeing); Burton v Minister for Immigration & Citizenship [2008] FCA 1464 at [26] to [27] per Jacobson J; MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [59] to [61] per White J.

17    But one of those authorities was the decision in SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372, (2008) 104 ALD 22. It was there concluded, “[n]otwithstanding considerable reservation”, that the Tribunal should have made further inquiries. But special leave to appeal was granted and the appeal was allowed by the High Court: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 259 ALR 429 (“SZIAI”). In a joint judgment, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ concluded (at 436):

[25]    Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

[26]    The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. … The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

[27]    No issue of procedural fairness otherwise arises. …

(Footnote omitted.)

18    The views expressed in this joint judgment in SZIAI were consistent with the views expressed much earlier by French J (as his Honour then was) in Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277. When considering a decision of the former Immigration Review Tribunal, his Honour expressed the following more generally expressed observations:

[29]    Generally speaking when a statute provides for a person to apply to some authority for the grant of a right or privilege the decision-maker is, absent some relevant statutory direction, entitled to rely upon the materials supplied by the applicant as that which is presented in favour of the application. There is no general duty on the decision-maker to seek additional material which may remedy deficiencies in the applicant’s presentation – Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392-393 (Toohey J); Kioa v West (1985) 159 CLR 550 at 587 (Mason J). As Hill J said in Enichem Anic Srl v Anti-Dumping Authority (1992) 111 ALR 178 at 190 (Gummow J agreeing):

“Decision-making is a function of the real world. A decision-maker is not bound to investigate each avenue that may be suggested to him by a party interested. Ultimately, a decision-maker must do the best on the material available after giving interested parties the right to be heard on the question.”

His Honour then went on to refer to the observations tentatively expressed by Wilcox J in Prasad.

19    Although it may thus be accepted that there remain limited circumstances in which the Tribunal may err by reason of “a failure to make obvious inquiries” which may “constitute a failure to review” such that there has been on its part a “constructive failure to exercise jurisdiction”, such circumstances did not arise in the present proceeding.

20    On the facts of the present case, the Tribunal did in fact consider the claims then made as to the now-Appellant facing persecution in Nepal by reason of his Christian beliefs and considered those claims by reference to the materials then available. In doing so the Tribunal (inter alia):

    relied upon country information as to Nepal being a place of “religious tolerance” ([2016] AATA 4489 at [36]);

    accepted that the now-Appellant would face “some low-level discrimination or ostracism as a Christian” and accepted (inter alia) that “Christians may face discrimination in obtaining senior positions in the civil service” ([2016] AATA 4489 at [41]); and

    made findings that the now-Appellant would be able to practice his religion freely in Nepal should he return ([2016] AATA 4489 at [41]).

The reasons for decision of the Tribunal further record that:

    the Appellant asked for one week to provide “a document” and that that request was granted but “no further information was provided” ([2016] AATA 4489 at [24]).

Although the now-Appellant undoubtedly may have wished for different findings to have been made, no complaint is open that the Tribunal failed to consider the materials before it and to make such findings as it considered appropriate.

21    Any argument now advanced seeking to contend that the Tribunal should have undertaken further “investigations” is tantamount to a contention that further materials may have supported a different conclusion. So much is inherent in any argument that further inquiries or investigations may elicit further and possibly different facts supporting a different conclusion. The reason why such a contention is rejected by reference to the facts of the present case is essentially that:

    there was no identification of what further inquiries or investigations should have been undertaken – let alone any identification of what further avenues of inquiry were so obviously raised by the materials available that they should have been pursued; and

    there was no reliable basis upon which any conclusion could be reached that any such further inquiries or investigations would have yielded a different factual outcome.

The argument in the present case descended to an impermissible attempt to seek to challenge by way of judicial review the factual merits of the decision reached by the Tribunal.

22    There is an obvious need to keep any “duty to inquire” within limited bounds.

23    Any untrammelled “duty to inquire”, a proposition rejected by the High Court in SZIAI, would undermine the statutory task entrusted to an administrative decision-maker to inquire into and resolve a claim by reference to the facts as placed before it. A requirement to undertake further inquiries or investigations would also have the very real tendency to permit a disgruntled claimant to seek a different and more favourable outcome by reference to an ever-changing substratum of facts. A claimant on such an approach would remain free to re-agitate a claim until the point is reached where a different and more favourable decision could be reached by reference to facts fundamentally different to those first advanced for consideration.

24    But such difficulties should not preclude the prospect that in an appropriate case a “duty to inquire” remains a duty to be undertaken if a decision-maker is to properly discharge the statutory task entrusted to it by the legislature.

25    The first Ground of Appeal is rejected.

The dangers faced by a change in religion

26    The second Ground of Appeal is understood to be an argument that the delegate failed to consider – or to “examine” – such facts as were placed before him for consideration. Whether the product of deliberate drafting or otherwise, the Ground focusses upon the decision made by the “Department”, namely the delegate.

27    Given the primary reliance placed by the delegate upon the right of the now-Appellant to enter and reside in India, there is much force in the argument that the delegate did not in any great detail consider – or “examine” – the factual basis for the claims made as to the fears or “danger[s]” faced if the Appellant were to remain in or return to Nepal. Given the reliance placed upon the right to enter India, there was no necessity for the delegate to do so. But the delegate did make findings addressed in his reasons under the heading “Persecution as a Christian living in India” and “Persecution as a Nepali living in India”.

28    The insurmountable difficulty confronting such an argument, however, is that the delegate’s decision was the subject of a merits review before the Tribunal. Any factual error that may have arisen by reason of the delegate not “examin[ing]” the facts advanced for consideration was able to be addressed and remedied by the Administrative Appeals Tribunal. Any argument that the Tribunal, as distinct from the delegate, did not “examine” the facts about the “danger” faced by the now-Appellant would also need to overcome the findings made by the Tribunal which expose the consideration given by the Tribunal to the claims made in respect to the “danger” faced by the now-Appellant, including the finding at para [44] of the Tribunal’s reasons for decision that it did “not accept that if the applicant returned to Nepal now or in the reasonably foreseeable future, that there is a real chance that he will face serious harm for reasons of religion or any other Convention related reason”.

29    It matters not even if the second Ground of Appeal inadvertently failed to challenge the Tribunal’s decision, in addition to the decision of the delegate. Even so construed, the argument is without substance.

30    In addition to making findings of fact going to such matters as whether the now-Appellant was a Christian rather than a Hindu, the Tribunal also made findings going to both the “implication[s]” of his having converted to Christianity (as asserted in his affidavit) and the “danger[s]” he faced by reason of his “change” in religion (as asserted in the second Ground of Appeal). In addition to its other findings, including for example the findings as to “low-level discrimination”, the Tribunal further addressed a claim that the now-Appellant would face harm if he returned to Nepal and was involved in proselytising. Although the Tribunal found that the now-Appellant would not engage in such conduct, it also found that he would not suffer harm even if he did so.

31    When setting forth the “Evidence before the Tribunal”, the Tribunal thus stated in part as follows:

[16]    The applicant said that his marriage ended because his wife was a [different religion] and he was Christian. After the marriage he told her everything about his attendance at classes. He tried to convince her to accept his Christianity, but she said that if he got baptised she would leave. One day at the end of 2014 when he got home from class, she had left. She knew he was going to church but only when she found out that he was going to be baptised did she leave him. ...

[17]    The Tribunal told the applicant that it had a copy of the letter of withdrawal by his wife in relation to that partner visa, … The Tribunal asked her why the partner visa was withdrawn so long before she left him in 2014. He said that he did not know exactly because she did not tell him, but thinks it might have been because of the religion. …

[20]     He claimed that he is from a high-caste family and cannot follow Christianity in Nepal, and his parents will find it difficult. He said that it is acceptable for lower caste people to follow Christianity, but not for higher caste people. He is scared because he has heard that local baptised people (as opposed to foreign Christians) will not be forgiven so he is afraid to go back. He said that there is a strong possibility that he will be attacked. He said that he has read about Christians being ostracised, subject to abuse, publicly humiliated and persecuted. He said that details of this were provided in articles he submitted to the Department. He said that his friend in Kathmandu told him that you should not tell people you are Christian as you will be in trouble. He has searched the internet to see if he could practice but he is scared, as the situation is critical.

[21]    Asked about his statements to the Department concerning high priests running the country, and preachers and individuals being charged for apostasy, he said that in his country only 1 percent of people are Christians. The priest in the Temple does not allow Christians to enter, and regards converts as sinners, which he finds threatening.

…

[24]    The applicant was asked if he would like to add any further information to his claims and he asked for one week to provide a document. This request was granted, however no further information was provided.

The Tribunal thereafter went on to consider: “Does the applicant meet the refugee criteria?” Under that heading, the findings and reasons of the Tribunal provide in part as follows:

[42]    The Tribunal is not satisfied on the basis of the applicant’s evidence that he would be involved in proselytising if he returned to Nepal. As discussed earlier, the applicant became interested in Christianity in Nepal as a student, but despite coming to Australia in 2007 he first attended church in 2013, which does not indicate a serious and evangelical approach to Christianity. Since then he has attended church and some classes but he has very basic knowledge of Christianity and involvement in Christian activities, and has not yet converted. He has not been involved in proselytising activities in Australia or expressed a desire to become involved in such activities in Nepal. The Tribunal is satisfied that he would not be involved in proselytising because he has shown little interested [sic] in evangelical activities in the past or in his future plans. The Tribunal is satisfied therefore that he would not refrain from proselytising because of a well-founded fear or persecution, rather he would refrain because of his own interests and choices.

[43]    In any event, the sources indicate that although proselytising is illegal until recently there have been no prosecutions. The applicant stated in his application forms that preachers and individuals have been criminally charged for apostasy but independent sources indicate there have been no cases of this in the past. There is currently one case before the courts in Nepal, which has been reported in the media. The reports state that eight Christian counsellors working for Teach Nepal were arrested for distributing a pamphlet about Jesus in a Christian school, while helping children through the trauma of the earthquake. The counsellors were granted bail. While this is a concerning report, it is the only case of prosecution of this sort. Prosecution of proselytising is not systematic or discriminatory and this may be an isolated case involving a non-governmental organisation, although clearly it will be important to monitor the situation in the future. Churches, missionaries, and schools continue to operate across the country and there is no evidence that practising Christians will face any harm. For all these reasons the Tribunal is not satisfied that the applicant would face serious harm on the basis of proselytising. The Tribunal has taken into account the fact that he is from a higher caste and his father was Village [local official]. However there is nothing in the country information to suggest that he would face serious harm on this basis or that his family would face serious harm.

[44]    After considering the evidence singularly and cumulatively and for the reasons set out above, the Tribunal does not accept that if the applicant returned to Nepal now or in the reasonably foreseeable future, that there is a real chance that he will face serious harm for reasons of religion or any other Convention related reason.

The Appellant on appeal to this Court was not able to identify any “danger” that he would face should he return to Nepal which was not the subject of evidence before the Tribunal and the subject of findings made by the Tribunal. The “danger[s]” to which he did refer in oral submissions largely went to the “danger[s]” faced by reason of his wife having left him because of his religious convictions and the “danger[s]” faced by Christians returning to Nepal. But those dangers were considered by the Tribunal at paras [16], [17], [20] and [21].

32    It is thus not possible to discern, with respect, any claim to “danger” which was not “examine[d]” by the Tribunal.

33    A further insurmountable difficulty is that the present appeal to this Court is an appeal from the decision of the Federal Circuit Court and not an appeal from the decision of either the delegate or the Tribunal. Even if the second Ground of Appeal is to be construed as an argument that the Federal Circuit Court erred in not concluding that the Tribunal had failed to “examine the facts about the danger” to be faced by the now-Appellant should he be returned to Nepal, that argument would also have been rejected.

34    The second Ground of Appeal is thus also rejected.

A disturbing lack of explanation

35    No challenge is made in the Notice of Appeal as to any inadequacy in the reasons provided by the primary Judge. Perhaps so much is not surprising given the fact that the Appellant was unrepresented.

36    But for the conclusions that the claims made by the Appellant have been properly considered by the Tribunal, consideration may have been required to be given to the adequacy of the reasons provided by the primary Judge and the consequences (if any) flowing from that consideration.

37    Such concerns as do arise are exposed by paras [14] and [20] of the reasons for decision of the primary Judge. At paragraph [13] the primary Judge sets forth the ground before that Court, raising for resolution an argument founded upon a “lack of capacity”, and proceeds as follows:

[14]    At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the Court would dismiss the applicant’s application.

Paragraph [20] of the reasons thereafter addresses this ground of review as follows:

Ground 1

[20]    Insofar as ground 1 raises an issue concerning the applicant’s mental state and capacity, that was not an issue before the Tribunal as earlier identified and accordingly, it is not a matter that could give rise to any jurisdictional error by the Tribunal. The broad assertion that the applicant did not have a real and meaningful hearing is not consistent on the face of the Tribunal’s reasons. On the material before the Court, the Tribunal complied with its obligations under s.425 of the Act and the applicant had a real and meaningful hearing.

38    The difficulty is at least two-fold, namely:

    the explanation provided at para [14] does not address the manner in which an unrepresented appellant could perhaps bring an argument as to a “lack of capacity” within the compass of a recognised ground of review. If an explanation is to be provided to an unrepresented litigant as to the role of the Court, as perhaps it should be, it could well have been expected that any such explanation as is provided is not a generic explanation or a standardised form of explanation as may have been provided in countless other proceedings – but rather an explanation more directed to the substance of the claims sought to be advanced by the particular party who was then appearing before the Court; and

    the reasons provided at para [20] are more expressed in terms of a conclusion than an analysis as to why (for example) any “lack of capacity” has not impacted upon the ability of a litigant to present evidence and arguments. The characterisation of the now-Appellant’s contention as a “broad assertion” may, perhaps, be more directed at the reasons provided for rejecting the argument. In the absence of explanation, moreover, it is not at all self-evident that a litigant who lacks the mental capacity to meaningfully participate in a hearing may not be denied procedural fairness in such a way as to expose jurisdictional error.

39    It is no part of the function of this Court to discharge the responsibilities entrusted by statute to a Judge of the Federal Circuit Court. It is not appropriate that this Court, in its attempt to ensure that a claim for refugee protection has been properly considered, should be required under the guise of exercising its appellate jurisdiction to in substance sit as a court of first instance and resolve arguments which have not been properly addressed and certainly not properly explained in reasons for judgment by a Judge of the Federal Circuit Court. If the statutory system of appeals is to work properly, each Judge must properly discharge his own individual duties and responsibilities.

40    The objective of a busy court resolving case as expeditiously as possible is, with respect, no licence for that court to not provide adequate reasons for the decisions made. A duty to provide reasons for decision, so it has been said, is one of the “defining characteristics of courts”: Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7 at [67], (2013) 252 CLR 38 at 71 per French CJ. As French CJ has also said, “[p]rocedural fairness or natural justice lies at the heart of the judicial function”: International Finance Trust Co Ltd v Crime Commission (NSW) [2009] HCA 49 at [54], (2009) 240 CLR 319 at 354 per French CJ. Procedural fairness, it has also been recognised, is “an essential characteristic of judicial proceedings”: RCB v The Honourable Justice Forrest [2012] HCA 47 at [42], (2012) 247 CLR 304 at 321 per French CJ, Hayne, Crennan, Kiefel and Bell JJ. A hearing before a court which may be resolved expeditiously, but at the cost of a proper consideration and explanation as to the basis upon which it has been decided, cannot be characterised as procedurally fair.

CONCLUSIONS

41    Neither Ground of Appeal has been made out.

42    The appeal should thus be dismissed.

43    The Respondent Minister seeks an order for the payment of costs by the Appellant fixed in the amount of $2,300 pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth). Such an order should be made. An affidavit filed on behalf of the Respondent Minister states that the costs incurred at the time that affidavit was affirmed were $2,310.20. It was also estimated that a further $1,060 in costs would be incurred. Any inability to pay such costs as may be ordered is, with respect, more a matter for the Respondent Minister if he seeks to enforce the order rather than a reason for not making the order. An order for the payment of costs in the fixed amount of $2,300 is thus appropriate.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent fixed in the amount of $2,300.

Associate:    

Dated:    27 March 2017