FEDERAL COURT OF AUSTRALIA

BPI17 v Minister for Immigration and Border Protection [2019] FCA 637

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is allowed.

2.    The requirement that the appellant file a notice of appeal is dispensed with.

3.    The grounds of appeal be those specified in the appellant’s draft notice of appeal lodged with the Court on 19 February 2018.

4.    The appeal is allowed.

5.    The orders of the Federal Circuit Court of Australia made on 12 February 2018 in action MLG744/2017 be set aside and, in lieu thereof, the following orders be made in that action:

(a)    pursuant to r 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) the respondent is to show cause at a final hearing why an order for the relief claimed should not be made on the grounds mentioned in the application for judicial review, as particularised in the written submissions filed by the applicant on 15 January 2018;

(b)    an order that the costs of the applicant for judicial review of and incidental to the show cause hearing conducted on 12 February 2018 be paid by the first respondent.

6.    The matter be remitted to the Federal Circuit Court of Australia, differently constituted, for the conduct of the final hearing and the determination of the application for judicial review.

7.    The first respondent pay the appellant’s costs of the application for leave to appeal and the costs of the appeal.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for leave to appeal from a judgment of the Federal Circuit Court of Australia (FCC): BPI17 v Minister for Immigration & Anor [2018] FCCA 356. At the hearing of the application, the parties made submissions as to the substantive merits of the proposed appeal so that, if leave were to be granted, the appeal may be finally determined without a further hearing.

2    The appellant is a citizen of Sri Lanka. On 14 February 2014, he applied for a protection visa under the Migration Act 1958 (Cth). A delegate of the then-titled Minister for Immigration and Border Protection refused to grant the visa. The delegate’s decision was affirmed on review by the Administrative Appeals Tribunal.

3    The primary judge summarily dismissed the appellant’s application for judicial review of the Tribunal’s decision. The power exercised by the primary judge was that conferred by r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). It provides:

44.12    Show cause hearing

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

4    The order of the primary judge was interlocutory: r 44.12(2). No appeal lies from the judgment except with the leave of the Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

5    The principles guiding the exercise of the discretion as to whether or not to grant leave to appeal from an interlocutory judgment are well settled. Among other things, it is relevant to consider whether the correctness of the judgment is attended with sufficient doubt so as to warrant appellate intervention: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 (Sheppard, Burchett and Heerey JJ).

6    Although interlocutory, the order dismissing the application for judicial review had the practical effect of bringing an end to the application. It did not involve the exercise of a discretion on a point of practice or procedure and so is not of a kind that would attract the cautionary principles discussed by French J (as he then was) in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 (at [42]):

The principal was expressed by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 in terms that: ‘ … appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure.’ The policy supporting the principal was clearly stated by Jordan CJ in Re Will of Gilbert (1946) 46 SR(NSW) 318 at 323, and repeated with approval by the High Court in the Philip Morris case at 177:

‘… there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges at first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretions in interlocutory applications from a judge in Chambers to a Court of Appeal.’

7    Whether or not a decision finally determines the rights of the parties was, his Honour observed, the subject of much taxonomic debate. In the present case, it is not necessary to engage in a taxonomic debate as to whether or not the judgment sought to be appealed from is interlocutory or not. Rule 44.12(1)(a) of the FCC Rules makes it plain that the judgment of the primary judge is of that nature.

8    The power to summarily dismiss the appellant’s application for judicial review could only be exercised where the primary judge was not satisfied that the appellant had raised an arguable case for the relief claimed. Such a power is to be “sparingly employed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 (Barwick CJ). The judgment operated in a practical if not a legal sense to finally determine the rights of the parties and so there exists a prima facie case for granting leave to appeal from it. As French J said in Johnson Tiles at [43]:

…  If the order, the subject of the application for leave to appeal, is concerned with the mechanics of the pre-trial process then the scales are likely to be weighed against the grant of leave. However if while interlocutory in legal effect it has the practical operation of finally determining the rights of the parties ‘the prima facie case exists for granting leave to appeal – Ex parte Bucknell (1936) 56 CLR 221 at 225; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400; Minogue v Williams [2000] FCA 125 at [18]. If the proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However leave will usually be granted in such a case if there is any doubt about the decision at first instance – Little v Victoria [1998] 4 VR 596 at 598-600 and 601 (Callaway JA, Buchanan JA agreeing).

9    On the application for leave to appeal, the proper approach is to assess whether there is sufficient doubt affecting the conclusion of the primary judge that the appellant had not raised an arguable case within the meaning of, and for the purposes of, r 44.12(1)(a) of the FCC Rules. The threshold is a low one.

THE visa application

10    Subject to exceptions that need not be considered here, s 65(1)(a) of the Act provides that, after considering a valid application for a visa, the Minister is to grant the visa if satisfied that (among other things) the criteria prescribed for the visa by the Act or the Migration Regulations 1994 (Cth) have been satisfied. If not so satisfied, the Minister is to refuse to grant the visa: s 65(1)(b) of the Act. Section 36(1A) of the Act provides that an applicant for a protection visa must satisfy (among other things), at least one of the criteria in s 36(2). Pertinent to this appeal are the alternate criteria prescribed in s 36(2)(a) (the Refugee Criterion) and s 36(2)(aa) (the Complementary Protection Criterion).

11    As in force at the relevant time, the Refugee Criterion required that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Article 1A of the Convention provides that Australia owes protection obligations to a person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

12    The Complementary Protection Criterion required that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

… the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ….

13    The appellant made claims in relation to these criteria in his visa application and in an interview with the delegate, as well as in written and oral submissions before the Tribunal. The appellant’s factual claims included that he had a well-founded fear of persecution because;

(1)    he had been harassed financially and physically by the actions of his former father-in-law for reasons connected with the appellant’s divorce settlement with his former wife;

(2)    upon marrying his second wife he had converted from Buddhism to Christianity; and

(3)    he was a member and supporter of the United National Party (UNP).

PROPOSED GROUND OF APPEAL

14    The proposed grounds of appeal are expressed in a draft notice of appeal lodged on 19 February 2018 as follows:

1.    The decision of the Federal Circuit Court is affected by jurisdictional error.

PARTICULARS

a.    Under the show cause procedure, if the Court is of the view that no arguable case is shown by the applicant, the court is empowered, among other things, to dismiss the whole proceedings.

b.    The power to summarily dismiss a proceeding should not be exercised lightly and I say the court did not approach this task in this case with that instruction in mind.

c.    It is my submission, that this case was arguable. The Court was required to consider if I had a well-founded fear of persecution or a real risk of significant harm in the reasonably foreseeable future if I returned to Sri Lanka. It was required to consider if there was a real chance or a real possibility of me suffering persecution or harm upon my return and furthermore it has not taken into account the profile of my father in law.

15    The Minister took issue with the opening words of this paragraph because the task of this Court on an appeal is to identify appealable error, not jurisdictional error. I would not dismiss the application for leave to appeal (or the appeal) on that basis. In the context of an appeal sought to be commenced by a self-represented litigant there would appear to be no reason why this Court should not understand the particulars to a proposed ground of appeal to allege error on the part of the primary judge of a kind that would justify the appeal being allowed. Although strictly correct, I consider the Minister’s point to detract from the real issues.

16    The particular in (a) does not allege error and will be read as a submission concerning the nature of the show cause procedure.

17    The particulars in (b) and (c) may be fairly understood as contending that the primary judge had too lightly dismissed the application for judicial review, specifically by erroneously concluding that the appellant had not raised an arguable case.

18    The proposed ground of appeal does not expressly articulate the arguable case that the appellant had raised before the primary judge. In this respect it may be said that the proposed ground of appeal is lacking in particulars. However, I do not consider the Minister to be prejudiced by the lack of express particularity. The arguable case that was raised by the appellant may be discerned from the grounds for judicial review advanced in the proceedings before the primary judge, together with the written and oral submissions of the appellant which gave better content to those grounds.

19    The appellant appeared self-represented before the primary judge, as he did on this appeal. His ground for judicial review was expressed as follows:

1.    The Decision of the AAT is affected by jurisdictional error

Particulars

(a)    The tribunal was required to consider if the applicant had a well founded fear of persecution or a real risk of significant harm in the reasonably foreseeable future if he returned to Sri Lanka. It was required to consider if there was a real chance or a real possibility of the applicant suffering persecution or harm upon his return and the AAT has formed a mindset that his claim was contrived and then failed to properly address the issue of his fear of UNP political opponents and not taken into account the profile of his father in law.

(b)    Likewise the tribunal has given scant consideration to his fears of persecution because he was a Buddhist who converted to Christianity and not considered the opportunities he would have to practice his religion openly and without fear of repercussions from the nationalistic Buddhist organisations.

(c)    The tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm, given his religious & political beliefs.

20    The Minister submits that the particulars are poorly expressed. To a degree, I accept that submission.

21    By para (a) of the particulars it is nonetheless clear that the appellant advanced (at least) a contention to the effect that the Tribunal had not given genuine consideration to his claims because it was fixed in a mindset that the claims were contrived. This complaint is to be fairly understood as affecting all of the appellant’s claims.

22    The appellant did not use the language of a lawyer to categorise the asserted error with a formulation of words to describe a recognised “category” of jurisdictional error. It was not necessary for him to do so, for three reasons.

23    First, the words employed in the particulars may be fairly understood as asserting that the Tribunal had not genuinely considered the appellant’s claims because it had not made a proper and genuine assessment of the appellant’s credit. A failure to genuinely engage with the issues to be determined (including with the issues affecting the credibility of a review applicant) may constitute jurisdictional error: BZD17 v Minister for Immigration and Border Protection (2018) 161 ALD 441 at [32] – [38] (Perram, Perry and O’Callaghan JJ).

24    Second, to insist that an applicant for judicial review articulate an alleged error in language that semantically conforms to a “recognised category” of jurisdictional error is to misunderstand both the purpose of an originating application and (to my mind more importantly) the nature of jurisdictional error itself.

25    The requirement that grounds for judicial review of an administrative decision be articulated in an originating application is a requirement that is concerned with fairness: the party defending the legality of the decision is to be given notice, in advance of the hearing, of the basis upon which it is said that the decision is affected by illegality. Subject to amendment, clarification and particularisation, the originating application defines the limits of the controversy to be adjudicated.

26    To achieve that purposes, it is of course convenient to identify an error as being in the nature of a jurisdictional error by employing descriptive language used in decided cases, such as that used by the High Court in Craig v South Australia (1995) 184 CLR 163. However, it does not follow that an asserted error must verbally conform to any one of those descriptions before an established error can be said to be jurisdictional in nature. The substantive question is as stated by Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1:

23    Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have ‘such force and effect as is given to it by the law pursuant to which it was made’.

24    Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as ‘involving jurisdictional error’ is to describe that decision as having been made outside jurisdiction.  …

(footnotes omitted)

27    In the present case, the appellant’s originating application ought to have been understood as asserting, at least implicitly, that the mindset the Tribunal had formed as to his credibility and its failure to “properly” consider his claims involved an error of a kind that justified the grant of relief he had sought in the proceedings in that it involved a failure to comply with a condition which the statute implicitly requires the Tribunal to observe. In the context of the show cause hearing, the onus was on the appellant to show that the asserted error was arguable and that its characterisation as jurisdictional error was also arguable. However, subject to considerations of fairness, it was not necessary for the appellant to describe the error as jurisdictional by a particular form of words employed in any one of the decided cases.

28    Third, the asserted error in respect of the assessment of the appellant’s credibility was given content in the appellant’s written submissions upon which he relied before the primary judge. The submissions were expressed as follows:

12.    It is my submission that the Tribunal formed an initial mindset that my claims were contrived and has given no consideration to case law on witness credibility assessment when concluding that my story was contrived. In other words the tribunal was saying that I was not a credible witness.

13.    The Full Court in CQG15 v Minister for Immigration and Border Protection extensively reviewed the law concerning adverse credibility findings and earlier authorities than that case from the Federal Court have held that adverse credit findings do not shield the Tribunal from scrutinising its decision-making process. Those cases include Minister for Immigration and Citizenship v SZRKT, SZLGP v Minister for Immigration and Citizenship and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship.

14.    The mere fact that the Tribunal takes an adverse view of credit as against the applicant, that in and of itself does not render the Tribunal decision impervious from judicial review. In this case, I claim the Tribunal failed to properly assess my claim for a protection visa because of its mindset that mine was a contrived claim and it did not consider any of the cases cited above and it should have assessed my credit, that my claim was contrived according to applicable law. I submit that credit assessment since CQG15 involves a vastly more sophisticated process than what the tribunal undertook in this matter.

29    The reasons of the primary judge expressly acknowledged the receipt of the appellant’s submissions and expressly referred to the appellant’s reliance on CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496. Indeed, the primary judge extracted in his reasons for judgment a part of the submission I have extracted above. The primary judge refused to grant the appellant an adjournment for the purpose of securing legal advice and assistance, including for the reason that the appellant’s written submissions were “quite clearly prepared by a person with significant background in this area”. There was no suggestion by the primary judge that the submissions did not bear on the issues that fell to be decided, nor is there suggestion that the submission could not be properly understood.

30    I am satisfied that the primary judge correctly identified that the issue arising on the application for judicial review included the appellant’s assertion that the Tribunal had not made a genuine assessment of his credibility and that this asserted error was said to be reviewable in accordance with the principles stated in CQG15. In that case the Full Court confirmed that findings of fact, including findings as to credibility, may be subject to judicial review in accordance with “well established legal precedent”, including on the basis of illogicality and/or irrationality or on the basis that the findings have no logical or probative basis. To those examples I would add that the power of the Tribunal to review the delegate’s decision was subject to a condition that the Tribunal meaningfully engage with the issues. Among other things, the Tribunal was required to review all of the claims and all of the evidence before forming a concluded view as to whether the claims were contrived. The relevant question on the show cause application was whether the appellant had raised an arguable case as to whether these conditions had been observed.

31    The written submissions filed on behalf of the Minster in the proceedings before the primary judge make express reference to the fact that the appellant had filed written submissions. However, the Minister’s submissions proceeded to address the grounds for judicial review without reference to the issues the appellant had raised in respect of the Tribunal’s credibility findings. No complaint was made by the Minister to the effect that the appellant’s written submissions could not be understood, nor was it said that the written submissions did not or could not give content to the grounds for judicial review as expressed on the originating application. No attention was given in the Minister’s submissions to the application of the principles stated in CQG15 to the adverse credibility findings in the appellant’s case.

32    I have concluded that the primary judge correctly identified that the appellant had asserted error affecting the Tribunal’s adverse credibility findings. Implicitly, the primary judge also recognised that the question of whether such errors were to be categorised as jurisdictional was to be decided in accordance with the principles stated in CQG15 and the authorities cited therein. However, the primary judge neither grappled with nor determined whether the case the appellant had raised in respect of that issue was an “arguable case” for the purposes of r 44.12 of the FCC Rules. At least on the topic of credibility, the reasons of the primary judge deal with the grounds of review as though the appellant’s written submissions had not been filed at all. The primary judge proceeded on the basis that the conclusions of the Tribunal were correct in light of the factual findings it had made, without regard to the appellant’s challenge to those factual findings (based as they were on the adverse view the Tribunal had taken of the appellant’s credit).

33    In my view, the satisfaction of the primary judge that the appellant had not raised an arguable case is attended with sufficient doubt to justify the grant of leave to appeal. There is an arguable failure to grapple with the complaints the appellant had raised with respect to the adverse credibility finding. Such a failure would fall within the broad contention that the primary judge summarily dismissed his application for judicial review too lightly or misapplied the test applicable on an application for summary judgment. Leave to appeal will be granted on this basis. I do not consider it appropriate to confine the grant of leave to any particular aspect of the ground of appeal. As will be seen, the Tribunal’s adverse credibility findings were cumulative and so affected the whole of the appellant’s claims to fulfil the visa criteria.

DISPOSITION OF THE APPEAL

Appealable error

34    I will dispense with the requirement that the appellant file a notice of appeal and proceed to determine the grounds of appeal on their substantive merits.

35    It is to be borne in mind that the appeal is against orders made in the exercise of the power conferred by r 44.12 of the FCC Rules. The question is whether there is appealable error affecting the exercise of that power. I am not presently concerned with the substantive merits of the application for judicial review.

36    I conclude that the primary judge failed to make any assessment of whether the case raised by the appellant with respect to the adverse credibility findings was arguable and so committed appealable error.

Powers of disposition

37    Counsel for the Minister submitted that should appealable error be detected this Court should not disturb the order of the primary judge because this Court may (and should) determine either that:

(1)    the appellant had not raised an arguable case in respect of the credibility findings and accordingly the application for judicial review was liable to be summarily dismissed pursuant to r 44.12(1)(a) of the FCC Rules in any event; or

(2)    the appellant’s application for judicial review was liable to be dismissed on its substantive merits and so remittal of the matter to the FCC would be futile.

38    I accept that, in the disposition of the appeal, this Court may, in its discretion, determine for itself whether the appellant had raised an arguable case in the proceedings below and so exercise any one of the powers that were exercisable by the primary judge, including the powers conferred under r 44.12(1)(a) or (b). I consider it appropriate to take that course, principally because it is a course urged upon this Court by both of the parties. The appellant has asserted before this Court that he has an arguable case and so I will proceed to determine that question.

An arguable case

39    The matter is one in which the Tribunal’s findings of fact turned almost entirely on its assessment of the appellant’s credit.

40    The Tribunal first determined that the appellant’s claim to be a member and supporter of the UNP was a claim that had been made for the first time before the Tribunal by way of written submissions. The claim had not, the Tribunal held, been raised at the time that the visa application was made, nor had it been raised in the appellant’s interview with the delegate, nor in written materials provided to the delegate at any time prior to his visa application being refused. In his written submissions before the Tribunal, the appellant said that he had raised the issue of his involvement with the UNP with his then-migration agent but that the agent had failed to provide the information to the delegate. He said he did not raise the information in the course of his interview with the delegate because he had not been asked about it. He told the Tribunal that he had only learned of the “refugee meaning” after his visa application had been refused by the delegate and it was then that he provided the information to the Tribunal.

41    The Tribunal said that it did not accept the appellant’s failure to raise this claim earlier was explained by his dealings with his migration agent. The Tribunal did not expressly state why that explanation had been rejected. Similarly, the Tribunal may be taken to have rejected the appellant’s claim that he did not understand the “refugee meaning” until after his visa application had been refused by the delegate, although the Tribunal did not explain why that explanation was rejected. The Tribunal said that the appellant had discussed politics and the UNP in the context of his claims concerning his father-in-law in his interview with the delegate, but had not otherwise suggested that he was involved with the party. The Tribunal, at least implicitly, considered it implausible that the appellant would raise some information about the topic and yet not raise his direct involvement and support of the party. The finding of implausibility may follow from the Tribunal’s rejection of the appellant’s assertion that he did not understand the meaning of the refugee definition, although this is not expressly stated. The Tribunal concluded that the appellant had been given ample opportunity to raise this aspect of his claim with the delegate but had not done so.

42    The Tribunal further identified inconsistencies and incongruities in relation to the claimed UNP involvement and so proceeded to find that the claim had been contrived. Before proceeding to consider other aspects of the appellant’s claims, the Tribunal said (at [51]):

Further, the Tribunal has significant concerns regarding the overall credibility of the applicant arising from these false claims arising from his claimed support of the UNP.

43    From this passage it may be inferred that the adverse view the Tribunal had formed about the appellant’s credit with respect to his asserted UNP membership affected its assessment of his credit more generally and so contributed to its rejection of the remainder of the appellant’s claims.

44    The Tribunal described the appellant’s claim to fear persecution by reason of his religion to be an “entirely new claim”. It said that the failure of the appellant to mention his religious conversion in his visa application was “of concern” to the Tribunal. It further said that the appellant had made no reference to his conversion or to any issues that arose from his conversion in the additional claims document provided by him to the Department or in his interview with the delegate.

45    The Tribunal took into account what it said was a delay in lodging an application for a protection visa in assessing the genuineness of his claims. It noted that the appellant had arrived in Australia on a tourist visa in July 2013, remained in Australia until October 2013, left for Singapore “for business reasons” then returned to Australia on 14 November 2013. In his visa application the appellant had said that his trip to Singapore was for the purpose of securing a three month extension of his tourist visa. The Tribunal made no reference to this in its reasons for decision. In additional information provided to the delegate, the appellant said that he had not returned to Sri Lanka in October 2013 because he had feared for his life. The Tribunal was critical of the appellant for spending three weeks in Singapore around that time and for taking the full six months of his valid tourist visa to apply for his protection visa. The Tribunal concluded that the appellant had deliberately delayed his application for protection. The Tribunal said (at [69]) that the appellant’s delay “demonstrates that he has limited concern for his welfare on return to Sri Lanka”.

46    In relation to the appellant’s claims with respect to his father-in-law, the Tribunal said (at [71]) that the evidence of the appellant was “quite vague and contradictory”.

47    The Tribunal commenced its discussion on this topic with the following passage (at [72]):

The applicant provided photographs of his wedding to the Tribunal. The Tribunal asked how the applicant had these photographs. The applicant stated his second wife had gone to the photographer and had been provided them from the negatives. The Tribunal questioned the applicant about this activity of his wife to get the documents in this manner. However, the Tribunal accepts that the applicant did marry [his wife].

48    The Tribunal did not state why it considered the appellant’s responses about the manner in which his wife had obtained their wedding photographs to be worthy of special scrutiny. To the extent that there was a factual basis for the Tribunal to have concerns about what appears to be an entirely orthodox method of obtaining wedding photographs, it is not stated in the reasons.

49    The Tribunal said that the appellant was vague as to when divorce proceedings had been commenced. Although it is not entirely clear, it appears that the description “vague” was given because the appellant could not specify the exact date of his divorce without reference to the documents he had provided to the Tribunal.

50    The Tribunal noted that the appellant’s first wife had remained a co-director of a company they had established for the conduct of a car sales business until near the end of their relationship. The Tribunal said that this was “somewhat unusual”. It did not explain why it formed that opinion. No factual basis for the opinion is stated.

51    The appellant had told the Tribunal that at the time he was receiving extortion threats from his father-in-law in and around 2009, he had attempted to give the impression that his business was not going well and that he did not have the money to meet the father-in-law’s demands. The Tribunal noted that the appellant’s salary had in fact increased at this time. It said (at [77]): “This contradicts the [appellant’s] evidence that he was attempting to show he had no money at this time”. It is unclear how the contradiction arises. The appellant had not said that that he was in fact struggling financially. His case was that he had sought to give the outward impression that he was impecunious to avoid further harassment.

52    The appellant said that in his attempt to demonstrate to his father-in-law that his business was not going well, he had sought to limit the cars on show. The Tribunal said that photographs of the car yard showed it to be full of vehicles, although it did not make any finding as to when the photographs were taken. The Tribunal also stated that the appellant’s business had advertised cars for sale in the business name. It said (at [78]): “The Tribunal does not consider that this demonstrated the [appellant] was not being successful as a business man at this time”. It is difficult to understand the import of this finding. Again, the appellant had not claimed to have in fact been unsuccessful at this time, only that he had sought to give his father-in-law the impression that he was unsuccessful.

53    The Tribunal noted that the appellant had sold his family home in 2009 for 70 million rupee, prior to the divorce being completed. It concluded that this demonstrated that the appellant had significant assets at the time that he was telling his former father-in-law that he was impecunious. The appellant told the Tribunal that he had said to his father-in-law that he had to settle with the bank. The Tribunal did not accept that the appellant’s father-in-law would accept that explanation. It did not say why that was so.

54    The appellant told the Tribunal that when he had commenced construction on a new home, this alerted his former father-in-law to his true financial situation and that this had brought about renewed approaches to extort money from him. The Tribunal said (at [84]):

The Tribunal questioned the claim that the applicant appeared not to be doing well in Sri Lanka. The Tribunal noted that the applicant had reasonable capital available such in the selling of his old house and purchasing the land for the new house. This was a demonstration of the positive financial situation of the applicant. The Tribunal also noted that the information from the applicant’s car business also demonstrated that the applicant was doing well, the applicant was advertising a number of vehicles of his for sale, again demonstrating his financial position. The Tribunal does not accept that in place like Colombo, where the applicant stated it was easy to find out about another’s [sic] person’s business, such as the example of the new home, that the applicant’s financial position would not be known to people who had an interest in it. The Tribunal considers that the applicant’s financial situation was not a secret.

55    This passage does not deal with the appellant’s evidence that he was indeed doing well in Sri Lanka and that his former father-in-law had indeed become apprised of his true financial position, particularly at the time that the new house was being built. The appellant did not claim that his financial situation was a secret at this time. In effect, his claim was that he had been unsuccessful in keeping his true financial affairs a secret and that this was the cause of a renewed course of harassment by his former father-in-law.

56    The issues discussed in the foregoing paragraphs are not intended to be exhaustive, although they are illustrative of the Tribunal’s approach to its task on review.

57    The Minister invites this Court to find that the Tribunal’s factual findings, including its adverse credit findings, were open to it to make. With respect, that is not the question that is presently before me, nor was that the question that arose before the primary judge. The question is not whether the Minister’s arguments on the application for judicial review should be accepted on their substantive merits. The question is whether the appellant’s case to the contrary is arguable for the purposes of r 44.12 of the FCC Rules.

58    The case is one in which the reasons of the Tribunal are open to differing interpretations. On the one hand it might be said that the appellant’s claims and his evidence in respect of them were so affected by inconsistency, vagueness, or implausibility that it was open to the Tribunal to reject them. On another interpretation, it is arguable that the Tribunal did not genuinely engage in the real issues but instead rejected, without a proper basis, the appellant’s apparently plausible explanations for such things as his delay in mentioning his UNP involvement or his delay in making the visa application. It is arguable that the Tribunal identified “unusual” features of the appellants’ evidence that were not unusual at all, such as the continued involvement of the appellant’s wife in the family business as the marriage ended. It is also arguable that the Tribunal identified inconsistent aspects of the evidence that were not in fact inconsistent on a proper understanding of the appellant’s factual claims, especially in connection with his unsuccessful attempts to portray himself as impecunious to avoid his father-in-law’s continued harassment.

59    It is important to emphasise that the Tribunal had overall concerns about the appellant’s credibility, having found that his claimed association with the UNP was “false”. That aspect of the Tribunals’ reasons may well make it more difficult for the appellant to ultimately succeed on his application for judicial review. However, the damaging conclusion that this aspect of the claims had been falsified was itself founded (at least in part) upon the Tribunal rejecting the appellant’s explanation for not providing information about his UNP involvement sooner than he did. The appellant’s explanation that he did not understand the “refugee meaning” until his visa application was refused is not inherently implausible, nor is the explanation he provided about the shortcomings of his migration agent at the early stage of the visa application process.

60    Considered alone, each of these criticisms, if valid, may not suffice to show jurisdictional error. However, read as a whole, the reasons of the Tribunal arguably demonstrate a failure to meaningfully engage with the appellant’s claims and that such a failure (if established) may arguably constitute jurisdictional error. That is enough to support a conclusion that the application for judicial review should not be summarily dismissed.

SUBSTANTIVE MERITS

61    I have rejected the Minister’s submission that the application for judicial review was liable to be summarily dismissed. It follows that the proper order on the show cause hearing was an order pursuant to r 44.12(1)(b) of the FCC Rules to the effect that the application for judicial review be adjourned and that the respondent be ordered to show cause at a final hearing why an order for the relief claimed should not be made on the grounds specified in the application for judicial review (as particularised in the appellant’s written submissions advanced in the FCC).

62    It remains to be considered whether this Court should itself finally determine the application for judicial review on its substantive merits, rather than remit the matter to the FCC.

63    It is true that this Court is in as good a position as the FCC to substantively determine the application for judicial review. However, Parliament has not invested this Court with original jurisdiction to judicially review the Tribunal’s decision: see s 476 and s 476A of the Act. Rather, this Court has appellate jurisdiction, to be exercised for the purpose of correcting appealable error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20] – [25]. The consequence of the error in the present case is that an order was made pursuant to r 44.12(1)(a) of the FCC Rules. The correction of that error involves this Court making an order pursuant to r 44.12(1)(b) of the FCC Rules.

64    I have regard to the time that has passed since the appellant first made his visa application and the further delay and costs associated with the remittal of the matter to the FCC for hearing and determination. The appellant continues to reside in Australia whilst the parties’ respective rights of review and appeal are exercised and exhausted. As such, I am prepared to accept that the delay in the processing of the visa application and the associated court proceedings is one of particular concern to the Minister.

65    However, I consider that any delay occasioned by an order for remittal to be a consequence of the Minister’s decision in the proceedings below. It was open to the Minister to resist an order under r 44.12(1)(a) of the FCC Rules and to instead urge the dismissal of the judicial review application by the primary judge on its substantive merits, as he did in the course of argument before me.

66    This Court should not be viewed by the Minister as an alternative forum for the hearing of a substantive application for judicial review should error affecting the exercise of the FCC’s summary dismissal powers be demonstrated. If that view were to be taken, there would be little incentive for the Minister by application to identify only the most obvious cases as candidates for summary dismissal and the distinction between the original jurisdiction of the FCC and the appellate jurisdiction of this Court would be significantly undermined: cf AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [26].

67    Different considerations might arise in cases where both the appellant and the respondent agree upon a proposed course, or where the delay might cause demonstrated undue hardship to the visa applicant, but that is not this case. I do not accept that an order remitting the application for judicial review would be “futile”. In my discretion, I decline to do in the exercise of the Court’s appellant jurisdiction what ought to have been done in the exercise of the original jurisdiction of the primary judge. The appellant, as the visa applicant, is entitled to have his application for judicial review finally determined in the Court in which he commenced it.

68    I will so order.

Associate:

Dated:    8 May 2019