FEDERAL COURT OF AUSTRALIA

FLW17 v Minister for Immigration and Border Protection [2019] FCA 352

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This appeal is from orders made by a judge of the Federal Circuit Court of Australia, following an ex tempore judgment. The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority made on 9 November 2017. The Authority affirmed an adverse protection visa assessment made by a delegate of the first respondent, the Minister for Immigration and Border Protection, now known as the Minister for Home Affairs.

2    On 16 July 2013, the appellant, a citizen of Egypt, arrived in Australia by boat, and was therefore designated as an unauthorised maritime arrival. He was later permitted to apply for either a temporary protection visa or a safe haven enterprise visa, another class of protection visa. On 15 September 2016, he lodged a valid application for a safe haven enterprise visa.

3    The appellant had claimed to fear harm by reason of his conversion to the Shia Islamic faith and the adverse attention to which he would be subject from Sunni Muslims. He claimed that he came from a Sunni Muslim family. In his written claims, the appellant stated that he converted to Shia Islam about a year after attending a religious lecture by a Shia cleric in 2010. He claimed to fear Sunni Muslims, further claiming that Sunni Muslims believe that killing Shia Muslims will take them to heaven.

4    The delegate did not accept that the appellant had converted to Shia Islam when he was living in Egypt. The delegate further found that the appellant’s attendance at the Al Zahra mosque in Arncliffe, New South Wales took place for the sole purpose of strengthening his claim to be a refugee and that such conduct should therefore be disregarded. The grant of the visa was therefore refused.

5    The delegate’s decision was automatically referred to the Authority for limited merits review. On 25 October 2017, the appellant provided the Authority with a written submission. On 26 October 2017, the appellant provided further documents by email. A letter attached to the 26 October 2017 email had the letterhead of an organisation bearing the name “Hussaineyat Ale Yassin”. The letter was dated 17 October 2017. The letter was unsigned, but had a stamp in the name of that organisation. The letter stated:

[The appellant] has been visiting our centre at Hussaineyat Ale Yassin and has been attending our sessions including lectures, congregations, prayers and celebrations. He has been doing so very regularly for over 3 years.

We are happy to see him as part of our community as his presence is pleasant and he is a kind-hearted, honest and righteous individual. He continuously encourages mateship, abides by the rules of the community and helps other members in the community as well.

We believe his presence has made a considerable value to our community and has benefited him in a variety of ways.

We wish him the best in his future.

Manager/Director of Hussaineyat Ale Yassin

6    At the foot of this letter was a website address, email address and physical address.

7    The Authority considered whether to take account of the letter as “new information” bearing in mind the restrictions imposed by s 473DD of the Migration Act 1958 (Cth). The Authority’s reasons were as follows (at [7]):

The letter from the Husseineyat Ale Yassin post-dates the delegate’s decision and I am satisfied that the document itself could not have been provided to the delegate before the decision was made. The applicant has not satisfied me that the letter constitutes credible personal information which was not previously known and which, if known, may have affected consideration of his claims. It is unclear what the Husseineyat Ale Yassin is. The letter is unsigned. It makes no mention of anything to do with the Shia faith and does not confirm that the applicant is a practising Shia. It states that the applicant had been attending the centre for three years, whereas at the TPV interview that applicant stated that in Sydney he had only attended the al Zahra mosque (noted in the delegate’s decision statement to be in Arncliffe). In these circumstances, the letter is of no assistance in assessing the applicant’s claim to be a convert to Shia Islam, or in addressing the delegate’s finding that the applicant’s attendance at a Shia mosque in Sydney was not conduct engaged in otherwise than for the purpose of strengthening his claims to refugee status. Given the extremely limited probative value of the letter and the fact that the applicant claimed at the TPV interview to have been attending Shia services and it would have been open to him to provide proof of that to the delegate even if he was not on notice that his conversion was in issue, I am not satisfied that there are exceptional circumstances which justify consideration of the letter.

8    The sole ground of review advanced before the primary judge was that the Authority had failed to carry out its statutory task by applying s 473DD of the Migration Act correctly. The primary judge did not accept that the Authority had made a jurisdictional error. His Honour held as follows (at [20]-[24]):

The Court notes the High Court of Australia has more recently confirmed the application of the principles of legal unreasonableness in relation to the powers under s 473DC of the Act in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16. I do not accept that the letter unsigned with the high level information described correctly by the Authority was material information that gave rise to circumstances in which it could be said to be legally unreasonable for the Authority to fail to exercise its powers under s 473DC(1) of the Act or in that regard under s 473DC(3) of the Act. Materially, the Authority was under no duty to get, request or accept new information as identified under s 473DC(2) of the Act. The nature of the process is one which, subject to the exercise of powers under ss 473DC, 473DD, 473DE and 473DF of the Act, the Authority must review the fast track reviewable decision by considering the review information provided to the Authority under s 473CB of the Act without accepting or requesting new information and without referring it to the applicant. It is apparent on the face of the Authority’s reasons in the present case that the Authority took into account the information under s 473CB of the Act.

Mr Zipser submitted that an enquiry of Google was an obvious inquiry that could easily be made in the context of the Authority’s reference to it not being clear what the entity is. The Authority’s reasons reflect that the Authority understood the substance of the letter in relation to the applicant’s attendance at particular locations for particular sessions over a particular period. It was not the Authority’s task to take steps in the circumstances of the present case to obtain further information in relation to the applicant’s alleged conversion to the Shia faith. It was apparent from the delegate’s decision that this was a both dispositive issue before the delegate and clearly an issue of which the applicant was alive to and seeking to address in the submissions and new information which was provided to the Authority. The Authority provided rational and logical reasons that supported the finding that there were not exceptional circumstances to justify considering the letter. That reasoning of the Authority was not legally unreasonable. There was no obvious, easily ascertainable information that the Authority could take steps to access to determine whether the applicant had genuinely converted to the Shia faith. Identifying the nature of the entity described in the letter is not something that would have been an easily ascertainable fact in respect of a critical matter that would assist in the determination of the material issue in the present case, being whether the applicant had converted to the Shia faith.

Indeed, the Authority took into account the possibility that the applicant had attended mosques of the Shia faith in its adverse determination. The Authority also pointed out inconsistencies between the alleged attendance at the particular centres for lectures, congregation, prayers and celebrations for over three years and the information that had been provided at the Temporary Protection visa interview. In those circumstances, the unsigned letter and its contents did not in the circumstances of the present case, give rise to circumstances in which it was legally unreasonable for the Authority to fail to exercise its power under s 473DC of the Act to get or seek further information in respect of the entity Husseineyat Al Yassin.

I do not accept the Authority was uncertain as to the entity being one in respect of which it is alleged that the applicant had attended congregation, prayers and celebrations for over three years. The circumstances of the present case found by the Authority are not submitted to be legally unreasonable by the Authority, rather it is alleged that it was legally unreasonable for the Authority to fail to make enquiries to get further information in relation to the entity Husseineyat Al Yassin under s 473DC of the Act. I accept the first respondent’s submission that the Authority’s assessment of the letter was not affected by any legal error and that it is relevant to take into account the absence of any accompanying explanation in relation to the significance of the same in determining whether or not there is any legally unreasonable exercise of power. Further, there was no request in the present case for the Authority to exercise any power under s 473DC of the Act. The failure to examine the power under s 473DC of the Act in the circumstances of this case cannot be said to lack an evident and intelligible justification.

I accept the first respondent’s submission that the Authority undertook the task by reference to the terms of the document itself and the absence of any explanation provided in support of the document’s significance. There was nothing evidently unintelligible about the consideration of whether a document had met the applicable statutory criteria without recourse to further information sourced by the Authority itself where that further information involving investigation of matters beyond the document. That is particularly so in the circumstances of the present case where the applicant was given the Authority’s letter to which I have referred, with a copy of the Practice Direction and giving the applicant an opportunity to put on submissions and new information and stating that the Authority must be satisfied there are exceptional circumstances to justify considering new information. There is no failure by the Authority to undertake this statutory task required under s 473DD of the Act and no legally unreasonable failure by the Authority to exercise the power to make inquiry as alleged in ground 1 of the amended application.

9    On 8 June 2018, the appellant filed a notice of appeal dated 7 June 2018. That notice of appeal states:

 1.    The appellant contends that there is an appealable error in the Federal Circuit Court judgment dated 21-5-2018.

2.    The appellant contends that the Court decision is not published yet, the appellant will detail his reasons for appeal in a subsequent amended application.

10    It may thus be seen that the notice of appeal does not contain any identifiable ground of appeal.

11    As at the date of filing the notice of appeal, the primary judge had not published his Honour's reasons. Over five months later, as at the date of hearing this appeal, no amended notice of appeal had been filed. The appellant did not file any written submissions in support of his appeal. His oral submissions did not refer to the primary judge's decision at all and only spoke about the merits of his case.

12    The Minister points out that the appellant has provided no effective grounds of appeal. He submits that by making the generic assertion that the primary judge had made an appellable error, there is no meaningful content to the appeal before this court. In the absence of any actual grounds of appeal, the Minister submits that it is difficult to give any meaningful response and that even to attempt to do so may have the practical effect of impermissibly shifting the onus to the Minister to demonstrate that the primary judge made no appellable error. The Minister submits that this approach would invite a presumption that an appeal cast in general terms and without specificity should be treated as advancing the grounds relied upon below, which in turn bears the risk of turning the proceeding in this Court from an appeal into a mere rerunning of the case before the primary judge, conflating the differing roles of judicial review and appeal. Each of these concerns are legitimate and should be accepted.

13    The Minister relies upon SZTOG v Minister for Immigration and Border Protection [2018] FCA 112, wherein Flick J considered the position when dealing with a notice of appeal that disclosed no actual grounds of appeal. His Honour dismissed the appeal, making the following pertinent observations (at [17], [24]-[26], [29]-[30] and [32]):

Where a proceeding is commenced by way of an appeal in circumstances where an ex tempore judgment has been delivered but not reduced to writing until sometime thereafter or where orders are made by a primary Judge without reasons then being delivered, the obligation to comply with s 486I nevertheless remains. Even in the absence of reasons having been delivered, a lawyer may nevertheless form a belief that there are “reasonable grounds for believing that the migration litigation has a reasonable prospect of success” by reason of (for example) a denial of procedural fairness which emerged during the course of a hearing.

…

The jurisdiction being presently exercised by this Court is the jurisdiction conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) to hear “appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth”.

This Court has no jurisdiction to conduct some general supervisory review of decisions of the Federal Circuit Court. It has no jurisdiction to give any advisory opinion as to what it perceives to be the legal or factual merits of a decision made by a Judge of that Court.

The form and content requirements of a Notice of Appeal are provided for in Pt 36 of the Federal Court Rules 2011 (Cth). Rule 36.01(2) provides as follows:

The notice of appeal must state:

(a)    whether the whole judgment or all of the orders, or only part of the judgment or some of the orders, are appealed from; and

(b)    if only part of the judgment, or some of the orders, is appealed from—the part of the judgment or the particular orders appealed from; and

(c)    briefly but specifically, the grounds relied on in support of the appeal; and

(d)    the judgment or orders the appellant wants instead of the judgment or orders appealed from.

…

In the absence of any Grounds of Appeal being provided, and where the lawyer for the Appellants (at the time the Notice of Appeal was filed) has expressly stated that Grounds “will be prepared”, this Court should not proceed upon the basis that the Grounds to “be prepared” will necessarily be Grounds which assert that the primary Judge erred in rejecting the Grounds previously advanced before the Federal Circuit Court. It is simply a matter of speculation as to what the Grounds of Appeal would provide. Nor should an order be made in the present proceeding dispensing with compliance with r 36.01(2)(c) where the Appellants have previously had the assistance of a lawyer and where it has been recognised that Grounds of Appeal would be provided.

In the absence of the specification of Grounds of Appeal which focus the attention of this Court upon perceived appellable error committed by a primary judge, a Notice of Appeal should normally be struck out. Although this Court may in some circumstances attempt to redraft or construe otherwise ill drafted Grounds of Appeal in an effort to identify appellable error, it is no part of the function of this Court to review the reasons for decision of a primary judge, draft what may be arguable Grounds of Appeal and then proceed to resolve those Grounds. Even judicial attempts to revise ill-drafted Grounds of Appeal run the very real risk of prejudicing the impartial administration of justice: cf. Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jagot JJ. For the Court to itself draft its own Grounds of Appeal and then resolve those Grounds is, with respect, a step too far.

…

In the absence of the Notice of Appeal setting forth any Grounds of Appeal, and in the absence of Grounds of Appeal being identified, the proceeding is to be dismissed.

14    The Minister submits, for the reasons that Flick J outlined above, that the same course is available in the present case, namely for the proceedings to be dismissed in the absence of any meaningful grounds of appeal. In the alternative, the Minister submits that there is no error in the primary judge’s reasons and provides detailed submissions as to why that is so. In making those submissions in the alternative, the Minister recognises that the appellant is currently unrepresented and there is no evidence before this Court as to whether he still had the benefit of legal representation at the time of filing his notice of appeal. In those circumstances, and given that only one ground of review was relied upon before the primary judge, the Minister assumes that the notice of appeal seeks to suggest that his Honour fell into error in finding that the Authority’s failure to seek further information about the letter was not legally unreasonable and did not constitute a jurisdictional error.

15    While I find the arguments of the Minister as to why there was no error on the part of the primary judge compelling and cannot detect any error in his Honour’s reasoning or conclusions, I do not consider it appropriate to embark upon the exercise of adjudicating in that manner. In short form, the Minister submits, and I accept, that the key issue in the appellant’s case below was an assertion that it was legally unreasonable for the Authority not to make an enquiry by making an internet search or a telephone call about Hussaineyat Ale Yassin, in circumstances where the Authority observed that it was unclear what Hussaineyat Ale Yassin was. However, the suggestion that the Authority was in some way under some general obligation to make further enquiries is contrary to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429. Following SZIAI, it is clear a jurisdictional error may arise, in circumstances where there is a failure to make an obvious enquiry about a critical fact within a particular merits review regime, but only where there is a sufficient link between that fact and the outcome of the review so as to go to the exercise of the review jurisdiction. There is otherwise no duty to enquire.

16    There is nothing in this case to bring it within the very limited basis identified in SZIAI, especially as that case was concerned with Pt 7 of the Migration Act, and this case is concerned with Pt 7AA, involving an entirely different statutory regime with very limited scope to raise procedural fairness as jurisdictional error. Unlike SZIAI, no issue was raised below that went to the question of the statutory review task, as opposed to the application of provisions dealing with whether an additional document put forward was “new information” and whether the Authority was prevented from considering it under s 473DD. Thus, the question was whether the letter from Hussaineyat Ale Yassin could properly form part of the review, and had nothing to do with the conduct of the review itself. No ground or argument was put forward below, so as to ordinarily be available on appeal, which raised any viable issue of jurisdictional error in the Authority’s approach to the question of “new information”, including as to legal unreasonableness, let alone error on the part of the primary judge on any of these issues.

17    It is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. No attempt at an identification of error on the part of the primary judge has been carried out by the appellant. It is not for this Court to perform that function. As no identifiable error on the part of the primary judge is alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs.

Associate:

Dated:    14 March 2019