FEDERAL COURT OF AUSTRALIA

GFV18 v Minister for Home Affairs [2019] FCA 1817

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

(Revised from the transcript)

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia by which an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, was dismissed. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs, to refuse the grant of a protection visa.

2    The appellant, a citizen of Fiji, failed in his application for merits review of the delegate’s decision because of the Tribunal’s serious concerns about his credibility, including, relevantly, arising out of new claims not made before the delegate, and inconsistencies between, and within, both his written and oral claims. The judicial review application, by way of three grounds of review, focussed on assertions that the Tribunal had failed to comply with the requirements of s 424AA of the Migration Act 1958 (Cth). That provision is in the following terms:

Information and invitation given orally by Tribunal while applicant appearing

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

(2)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

3    The appellant was represented by counsel before the primary judge. In relation to each ground of review, the information comprising the inconsistency was put to the appellant orally. For each item, the Tribunal’s reasons expressly stated that this was done pursuant to s 424AA of the Migration Act. The appellant’s complaint was that the process deployed fell short of compliance with s 424AA(1)(b), asserting that, in relation to three matters raised with the appellant, the Tribunal had:

(1)    failed to ensure, so far as is reasonably practicable, that the appellant understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the decision under review;

(2)    failed to advise the appellant that he could seek additional time to comment or respondent to the information; and

(3)    [if the appellant sought additional time] failed to consider the question of whether he reasonably needed that additional time,

and that this denied him natural justice by not acting according to substantial justice and the merits of the case under s 420 of the Migration Act or acting in a way that was fair and just under s 420B of that Act.

4    The problem for the appellant was that there was no evidence before the primary judge of what had happened at the Tribunal hearing, despite a timetable to file any evidence upon which the appellant relied. His Honour was not willing to infer any failure to comply with s 424AA(1)(b) in the absence of evidence that went behind the Tribunal’s reasons which on their face effectively asserted compliance with the whole of the provision. His Honour was also not satisfied that s 424A was engaged because it was not, of itself, information that undermined the appellant’s claims, so as to give rise to the application of either the s 424A or the s 424AA process in the first place.

5    The primary judge accepted the appellant’s explanation for the late filing of his application for judicial review, extended the time for bringing that application, but dismissed the application with costs on the day of the hearing, 9 April 2019, giving ex tempore reasons. Those reasons adequately outline the facts of the case and what took place both before the Tribunal and his Honour and do not need to be repeated.

6    The appellant’s notice of appeal was filed within time on 30 April 2019, asserting as the sole ground (verbatim):

The Federal Circuit court failed to find, in respect of the AAT that the AAT declined its jurisdiction to the Applicant on the basis of grounds including the main grounds stated in the Applicant’s Federal Circuit Court Application filed in Sydney.

7    Read beneficially, as the Minister quite properly does, the appellant should be taken by this ground to be maintaining on appeal the grounds of review below and asserting error on the part of the primary judge in not upholding them.

8    The appellant appeared in person at the appeal. He did not furnish any written submissions. When asked what he wanted to say about his appeal and in particular any error made by the primary judge, he said that he could not find any error.

9    The Minister’s first defence of the primary judge’s decision relies upon the asserted correctness of his Honour’s conclusion about s 424A not being engaged, such that s 424AA was not engaged. The second defence is that even if that was not correct, the primary judge was nonetheless correct to hold that the appellant had not discharged the onus on him to establish the errors that he alleged, citing:

(1)    SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 per Rares J at [38]:

Without a transcript, it is not possible to ascertain whether or not the tribunal precisely complied with the provisions of s 424AA of the Act. That enabled it to put to the appellant orally clear particulars of any information it considered would be the reason or part of the reason for affirming the decision under review and to explain to him why that was relevant for the purposes of the review, giving him the opportunity to comment. Certainly, a reading of the tribunal’s summary of the evidence suggests that something close to that process was followed. Given that the tribunal squarely raised with the appellant the substantial difference in explanations he had given to the delegate and to it for his delayed departure I am not satisfied that there was a failure to comply with ss 424AA or 424A.

(2)    SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 per McKerracher J at [18]-[19]:

The information that the Tribunal is required to disclose does not include the Tribunal’s subjective appraisals, thought processes or determinations. It does not extend to gaps, defects, or lack of detail or specificity in evidence or to the conclusions the Tribunal reaches in terms of the weight attributed to these factors: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471.

In the absence of a transcript of the Tribunal hearing there is no reason to doubt that the Tribunal complied with s 424AA as it stated.

10    It is not necessary to consider the Minister’s first defence as to the primary judge’s secondary reason for not finding error on the part of the Tribunal by reason of the obligations under s 424AA not being engaged. That is because his Honour was plainly correct, as his primary reason for dismissing the judicial review application, not to be satisfied that there was any failure to comply with the requirements of s 424AA(1)(b) in the absence of evidence to show that was so. His Honour was correct not to draw any inference to that effect based only upon bare assertion. That is especially the case given the Tribunal’s express statement that the three items of information had been put to the appellant pursuant to s 424AA.

11    As no error has been established on the part of the primary judge, the appeal must be dismissed with costs.

Associate:

Dated:    5 November 2019