FEDERAL COURT OF AUSTRALIA
EER17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1949
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2. The application for leave to issue a subpoena is refused.
3. The application for adjournment is refused.
4. The appeal is dismissed.
5. The Appellants pay the costs of the First Respondent, to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
1 This is an appeal from the decision of the Federal Circuit Court in EER17 v Minister for Immigration and Border Protection [2018] FCCA 3387 delivered on 21 November 2018. In that decision, the primary Judge dismissed the appellants’ application for review of a decision of the Administrative Appeals Tribunal (Tribunal), which in turn affirmed the decision of a delegate to the Minister to refuse to grant the appellants’ protection visas pursuant to s 65 of the Migration Act 1958 (Cth) (Migration Act).
Background
2 The appellants are citizens of Vietnam, who applied for the relevant protection visas on 6 May 2014. The Minister refused to grant the visas on 8 May 2015.
3 The relevant factual background to this appeal is set out in detail in the primary judgment at [4]-[14]. I gratefully adopt that summary:
4. The first applicant and the second applicant are both citizens of Vietnam. They are husband and wife. They arrived in Australia on 19 May, 2013.
5. The first and second applicants are the primary visas applicants. The third applicant is their infant son.
6. On 6 May, 2014 each applied for a Protection (Class XA) visa, each raising their own claims for protection. In his application for the visa, the first applicant claimed that:
a. he had been working in the Czech Republic on a temporary work visa. On returning to Vietnam after a stint working overseas, he made a request to the local authorities for a particular certificate. This certificate would allow his wife to accompany him to the Czech Republic. The request was rejected by the local authorities, as had occurred “every time [he] applied for it.” On this occasion he asked the local authority to confirm that his wife did not have a criminal record. The existence of such a record might have explained their refusal. The local authority allegedly replied that “they rejected [his] requests based on the reason” that his wife was Catholic and had participated in Catholic activities that protested the oppression of Catholic parishioners;
b. on 25 March, 2013 the applicant “stood up” to the local authority, requesting justice for his wife. He was accused of public trouble making and “forced... to sign a statement confessing to that.” He also claimed that when he “refused to sign” the statement the authorities threatened him with “severe punishment”;
c. on 27 March, 2013 the applicant was summoned to the office of the local authority and accused of making trouble “which [the applicant] did not agree with”;
d. on 2 April, 2013 police came to the house of the applicant to take him to the police station. The applicant alleged that he was charged with being obstructive to law enforcement;
e. after the departure of the applicants from Vietnam, the applicants’ parents were harassed by the local authority. The first and second applicants claimed to fear harm arising from their departure from Vietnam. The second applicant also claimed to fear harm arising from her practicing as a Catholic.
7. The second applicant relied upon the same matters as the first, but also claimed that she feared harm were she not be granted a visa on account of her being a Catholic.
8. On 28 January, 2015 another application was lodged, this time on behalf of their son – the third applicant – who was born on 20 February, 2014.
9. The first respondent submitted that by the operation of s.45AA of the Migration Act 1958 (Cth) and r.2.08F of the Migration Regulations 1994 (Cth) the applications were taken to be, and to always have been, valid applications for a Temporary Protection (Class XD) visas. There is no dispute about this.
10. On 8 May, 2015 a delegate of the Minister refused to grant the applicants the Temporary Protection (Class XD) visas.
11. On 22 May, 2015 the applicants sought merits review of the delegate’s decision by a refugee review tribunal. The function of those tribunals was subsequently usurped by the Migrant and Refugee Division of the Administrative Appeals Tribunal.
12. On 27 October, 2016 the applicants provided submissions and relevant additional evidence to the refugee review tribunal. On 17 November, 2016 the applicants attended a hearing before the refugee review tribunal.
13. Sometime after 17 November, 2016 but before 7 August, 2017 the Tribunal was reconstituted. Subsequently the applicants attended hearings before the reconstituted Tribunal, first on 7 August, 2017 and then on 18 August, 2017.
14. On 18 August, 2017 the Tribunal affirmed the decision of the first respondent’s delegate under review.
Review by the tribunal
4 On 22 May 2015, the appellants applied to the Administrative Appeals Tribunal for review of the delegate’s decision. On 17 November 2016, the appellants appeared before the Tribunal to give evidence and present arguments. Prior to a decision being finalised, the Member hearing the review was not re-appointed to the Tribunal. The Tribunal was reconstituted, and the appellants appeared before the Tribunal on 7 August 2017 and 18 August 2017 to present arguments.
5 The Tribunal delivered its reasons affirming the decision not to grant the appellants protection visas on 18 August 2017.
6 The Minister summarised the findings of the Tribunal in submissions to this Court dated 13 August 2018. I consider that this summary fairly reflects the findings of the Tribunal, namely:
8.1 Aspects of the evidence of the first and second appellants were “lacking in detail, implausible, contradictory, and unconvincing”, and there were inconsistencies in their evidence. As a result the Tribunal formed the view that neither the first nor the second appellant was a reliable or credible witness.
8.2 The Tribunal accepted that the appellants were members of the officially recognised Catholic Church, and that the first appellant moved to the Czech Republic in search of better employment opportunities and did not claim that his religion prevented him from getting a better job in Vietnam. While being a Catholic may impact his ability to get a job in the public service, it did not accept that this amounted to serious or significant harm.
8.3 The Tribunal accepted that the first and second appellant attached Church once a week in Vietnam; that the first appellant did so in the Czech Republic, and that the second appellant also did charitable works in the community and prayed. It also accepted that the appellants had attended Church once a week since arriving in Australia.
8.4 The Tribunal accepted that the second appellant’s church group was stopped on one occasion when it sought to go on a pilgrimage to help other communities. However, it considered the second appellant’s evidence had been so contradictory as to cause the Tribunal not to believe any aspect of her claimed involvement in any activities other than the peaceful practice of her religion in her church.
8.5 The Tribunal found that the appellants would continue to practice Catholicism if they returned to Vietnam and but would be able to do so freely. It was not satisfied that there was a real chance that the appellants would suffer serious harm for reason of their religion if they returned to Vietnam.
8.6 The Tribunal also accepted that the first appellant may have experienced some issue with the police on 25 March 2013. However, the Tribunal did not accept that the first appellant was required to visit the police station again or to sign confessions, inter alia because the notices he allegedly received were implausible (particularly in the context of evidence that forged documents were common in Vietnam and these documents had been liquid papered or covered over). Even if he had been charged and required to attend as claimed, this would have been in accordance with laws of general application.
8.7 Had the appellants been of interest to the police as claimed, they would not have been able to depart via a major airport, using their own travel documents, without incident and without an alert being thrown up at Immigration. Nor would they have been able to stay in their home without incident from 2 April until 19 May 2013. The Tribunal thus did not accept that they had departed illegally and was not satisfied that there was a real chance that the appellants would be at risk of serious harm arising out of the accusations or charge of obstruction of justice if they returned to Vietnam, nor for their claimed illegal departure.
8.8 The Tribunal found that they were also not at risk of serious harm as failed asylum seekers if they returned to Vietnam.
8.9 The Tribunal accepted that some of the appellants’ personal information was inadvertently published on the Department’s website for a short period of time in February 2014. Whilst it accepted that the Vietnamese authorities may have accessed the appellants’ personal information as a result of the data breach, and may infer that they had applied for asylum, it did not accept that such an inference would result in them being imputed with anything negative.
8.10 Ultimately the Tribunal was not satisfied that the appellants met the criterion in s 36(2)(a) of the Act. Relying upon its previous findings, it also did not accept either that the appellants would suffer significant harm or met the criterion in s 36(2)(aa) of the Act.
(References removed.)
application to the Federal Circuit Court
7 On 18 September 2017, the appellants filed an application for review in the Federal Circuit Court. On 18 April 2018, the appellant filed written submissions which abandoned a number of grounds of review. The appellants pressed two grounds of review before the Federal Circuit Court, namely:
1. The tribunal failed to properly interpret and apply, 5H, 5J, s36(2) and s36(2A) of the Migration Act 1958;
2. The tribunal failed to properly conduct a review for the purpose of implementing Part 7 and/or ss 414(1) of the Migration Act 1958.
8 As a preliminary issue, the first respondent submitted that the application should be dismissed for two reasons:
(1) The unparticularised grounds of review made it impossible to properly understand and respond to the application; either to determine whether the Tribunal made a relevant error or to respond to the application;
(2) The applicants’ submissions raised new grounds of review of which the first respondent was not notified.
9 His Honour considered that the broad and unparticularised nature of the two grounds of review made it impossible to understand and respond to the application. His Honour noted that the appellants had been provided with the opportunity to file an amended application. His Honour dismissed the application for review as the unparticularised grounds were assertions which were insufficient to support the application for judicial review.
10 Despite these findings, his Honour considered it appropriate to consider the appellants’ grounds of review to the extent that he could in the circumstances.
Ground 1
11 In relation to Ground 1, the appellants submitted that there were two failures of the Tribunal resulting in jurisdictional error, namely:
a) first, a failure to “appreciate the extent of involvement of ‘outreach’ by the second named applicant in her practice of the Catholic religion,” and
b) second, a failure “to perceive the inter-relationship between the two situations of the first named applicant and the second named applicant.”
12 At [25] of the primary judgment, his Honour noted the Tribunal’s findings at [108]-[111]. At [108]-[111] of its reasons the Tribunal stated:
108. The Tribunal accepts that the second-named applicant was a member of a church group at Church from when her husband went to the Czech Republic. The Tribunal accepts that the Group had meetings at the Church and she attended these meetings. The Tribunal accepts that the Group helped out at the Church, did charitable works in the community and prayed. The Tribunal does not accept that they undertook any political activities.
109. The Tribunal accepts that, since coming to Australia, the applicants have been attending Church once a week.
110. The Tribunal accepts that neither the applicant nor the second-named applicant or any member of their family have been prevented from practising Catholicism in Vietnam. The Tribunal accepts that they have never been abused or arrested by the Vietnamese authorities for the reason of them being Catholics. Alternatively, the Tribunal does not accept that they were prevented from living freely because they are Catholic.
111. The Tribunal accepts that the second-named applicant's church group may have sought to go on pilgrimages to help other communities. It accepts that on one occasion the group's bus was stopped 15kms from their church and was ordered to turn around. The Tribunal accepts that since that experience, the group has remained in its church and has prayed in the church as a group. The Tribunal does not accept that the second-named defendant has been involved in any incident with the police or authorities or in any protest. The evidence of the second-named applicant's activities over the course of this process has been so contradictory as to cause the Tribunal not to believe any aspect of the involvement of the second-named applicant in any activities other than the peaceful practice of her religion in her church.
13 His Honour then continued:
26. What the Tribunal’s reasons reveal is that rather than failing to “appreciate the extent of involvement of ‘outreach’ by the second named applicant in her practice of her Catholic religion” the Tribunal in fact made its findings based upon the determinations that it made concerning those matters. The Tribunal’s reasons show that it considered the claims made by the second applicant about her church related activities in their various iterations and then made findings about the nature and extent of those activities. On the basis of those findings that Tribunal then determined whether there was a real chance that the second applicant would be at risk of serious harm by reason of her religion if she returned to Vietnam now or in the reasonably foreseeable future. In my view, the Tribunal’s reasoning about these matters is unimpeachable.
14 In relation to the second matter, his Honour said:
27. As to the second matter, having regard to the Tribunal’s reasons, there is no reasonable basis to think that the Tribunal did not “perceive the interrelationship between the two situations of the first named applicant and the second named applicant”. The Tribunal dealt with the second applicant’s evidence concerning the refusal of permits to her but rejected that evidence: [47], [49], [50]-[52], [142]-[146]. Those paragraphs, in my view, demonstrate that the Tribunal did appreciate that there was a connection between the first applicant’s claims and those of the second applicant.
Ground 2
15 In Ground 2 before his Honour the appellants claimed that the Tribunal failed to conduct a proper review for the purpose of implementing Pt 7 and s 414(1) of the Migration Act. The primary Judge considered that this ground had two limbs.
16 The first limb was that the Tribunal did not conduct a proper review of the relevant decision as it failed to consider evidence of the second respondent concerning her religious activities. In relation to this limb the primary Judge explained at [32]:
As the first respondent points out, the applicants’ written and oral argument invited the Court to infer that:
a) the Tribunal did not familiarise itself with the evidence given by the second applicant at the first hearing; and
b) neither or both of the applicants did not realise that the Tribunal did not familiarise itself with that evidence and they may have felt that they did not need to repeat the evidence and were therefore disadvantaged.
17 The primary Judge considered at [33] that there was no basis for drawing an inference that the Tribunal did not read or familiarise itself with the evidence of the second appellant at the November 2016 hearing. His Honour noted the Tribunal’s reasons, specifically at [43] and [45] and considered that the Tribunal’s reasons made it clear that the Tribunal was aware of the November 2016 hearing and that the appellants had given evidence at this hearing. His Honour further found that it was reasonable to draw an inference that the Tribunal’s comment at [45] (namely “The Tribunal noted that the agent was not present at the November 2016 hearing either”) came from a perusal of the transcript of the hearing in which there was no record of a migration agent appearing.
18 The primary Judge also noted the orders of a Registrar on 23 October 2017 which provided the appellants with the opportunity to file affidavits containing any additional evidence relevant to the grounds of review. His Honour noted that the only document filed was an affidavit by the appellant’s lawyer which annexed transcripts. His Honour continued:
[36] To the extent that the applicants’ case is that the Court ought to infer that the applicants did not realise that the Tribunal would not read or take into account their earlier evidence, I decline to draw that inference in circumstances where it was well within the applicants power to place before the Court evidence about their understanding of how the Tribunal, reconstituted, would go about its business. While sworn evidence from the applicants about that matter would not be determinative of the issue, it would be direct evidence about the second applicant’s state of mind which might go towards explaining the basis on which the second applicant gave her evidence at the second hearing. There is no evidence, however, and the matter ought not be left to inference. The inference is not clearly open.
19 The second limb of Ground 2 concerned the Tribunal’s conclusion at [66] of the Tribunal’s reasons in relation to the credit of the second appellant. In summary, the primary Judge found that the Tribunal’s conclusion at [66] was not a bland conclusion or inference by the Tribunal which lacked coherent reasoning. Rather, his Honour found at [41] of the primary judgment that the reasons provided by the Tribunal when read as a whole demonstrated that the Tribunal had concerns with, but considered very carefully, the credit worthiness of the second appellant’s claims.
20 The application was dismissed with costs.
grounds of Appeal to the FedeRal Court
21 On 11 December 2018, the appellants filed a notice of appeal to the Federal Court. The notice of appeal relied on six grounds of appeal, one of which was later amended at the hearing before me. The six grounds of appeal as pressed by the appellants were as follows:
1. The learned Federal Circuit Court judge erred by not giving himself access to the transcript of the AAT and therefore did not conduct a proper judicial review in accordance with his jurisdiction under s 476 of the Migration Act 1958.
2. The first respondent contributed to and/or caused the learned Federal Circuit Court judge to err in not admitting the AAT transcript.
3. The first respondent contributed to and/or caused the learned Federal Circuit Court judge to err in not admitting the AAT transcript through the first respondent not supplying the court with an audio file of the hearing in accordance with paragraph 2 of the directions of Registrar Lynch dated 23 October 2017.
4. The learned Federal Circuit Court judge erred in dismissing the application on the basis that the grounds were not particularised because:
(a) The first respondent never sought particulars of any ground;
(b) The rules and procedure for judicial review did not have pleadings in that the parties do not exchange a statement of claim, defence and reply;
(c) At the time of filing an application an applicant does not have the court book or the transcript of hearing;
(d) The application therefore is akin to a type of indorsement of writ identifying in general terms what the grounds of the application are.
(e) The practice of judicial review in the Federal Circuit Court is that the parties exchange detailed written submissions;
(f) Those written submission properly and adequately particularised and detailed the applicants’ grounds;
(g) No new grounds were raised in the Federal Circuit Court by the appellants
5. The learned Federal Circuit judge erred by not finding the AAT erred through its failure to conduct a proper hearing on each of the following independent bases:
(a) failing to recognise the AAT did not properly incorporate the evidence collected at the two hearings of the AAT (the first hearing being conducted by a member who was not re-appointed and did not make a decision before the appointment ended);
(b) the AAT failed to make it clear to the appellants as to what the status of their evidence was at the first hearing and as a consequence the AAT did not act in a way that was ‘fair and just’ and therefore denied the appellants a real chance to present their case
(c) the AAT did not properly respond to the claims as made by the appellants;
(d) the AAT misunderstood the evidence of the appellants;
(e) the AAT’s reasons were inadequate in the sense that they did not ‘explain the actual pathway of reasoning’;
(f) the reasons that were issued show that the AAT made the type of error identified by Lee and Moore JJ said in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 namely that the AAT ‘determine[d] the matter by…acting on instinct, a “hunch” or a “gut feeling”.
6. The learned Federal Circuit Court judge erred by not finding the AAT did not properly interpret and apply, 5H, 5J, s 36(2) and s 36(2A) of the Migration Act 1958;
22 The appellants seek the following orders:
1. The appeal be allowed;
2. The orders of the Federal Circuit Court of Australia in BRG932/2017 made on 21 November 2019 be set aside and in lieu thereof orders that:
(a) In relation to the decision of the Second Respondent dated 18 August 2017;
(i) An order that the decision of the Second Respondent be quashed;
(ii) A writ of mandamus directed to the Second Respondent requiring it to determine the appellant’s application to the second respondent according to law;
(iii) That the first respondent pay the appellants’ costs of the Federal Circuit Court of Australia proceeding BRG932/2017 fixed in the sum of $8,877 (consisting of the filing fee of $615, setting down for hearing fee of $795 and professional costs of $7,467 for the hearing.
3. The First Respondent pay the Appellants’ costs of this proceeding as agreed or otherwise assessed.
4. In the alternative that the matter remitted back to the Federal Circuit (differently constituted) for re-hearing;
5. Such further or other orders as the court considers appropriate.
Application for adjournment and application for subpoena
23 At the hearing on 15 August 2019, Counsel for the appellants orally sought an adjournment and leave to issue a subpoena. In doing so, the appellants relied on an affidavit of their lawyer Mr Minh Huynh sworn 13 August 2019. In that affidavit Mr Huynh deposed as follows:
I, Minh Huynh, Director of H&N Lawyers, 32 Old Progress Road, Richlands Queensland 4077 AUSTRALIA Solicitor for the Applicant make oath and say:
1. I am principal of H&N Lawyers and act for each of the Appellants in this matter of QUD920/2018. I today caused a search to be undertaken of Mr Michael Hawkins' public profile entry on Linkedln. Now shown to me and marked “MH1” is a print out of the extract reformatted to reduce spacing.
2. I also wrote a letter to the solicitors for the Respondents enclosing the same annexure and also indicating that I was in the process of issuing a subpoena to the Registrar of the Administrative Appeals Tribunal seeking a copy of all documents and correspondence regarding any legal advice from AA T officers to the Member in relation to case number 1507021 (being the decision subject of the judicial review and appeal before this Court). Now shown to me and marked "MH2" is a copy of that email and the draft subpoena.
24 Annexed to Mr Huynh’s affidavit was a draft subpoena referring to the following documents:
The documents and things you must produce are as follows:
1. All written material, or a copy of any written material, given or produced to the Tribunal constituted by Member Michael Hawkins in Case Number 1507021 for the purposes of the review consisting of all internal memoranda, emails and other documents to and from the MRD Legal Services of the Administrative Appeals Tribunal.
2. Any other material furnished or given to Member Michael Hawkins in Case Number 1507021 which could constitute or be considered as legal advice from any other person employed or engaged by the Administrative Appeals Tribunal.
25 Counsel for the appellants directed the attention of the Court to a two-page extract of a report prepared by Mr I.D.F Callinan AC entitled “Review: section 4 of the Tribunals Amalgamation Act 2015 (Cth) (Report). Counsel submitted that the Report was tabled in Federal Parliament on 23 July 2019. The extract provided by Counsel included the following paragraphs:
7.25 The MRD Legal Services Section has places for 30 staff members. There are seven levels of staff. According to the organisational chart, which I reproduce for ease of reference below, 28 or so of these positions are for legally qualified people.
[table of MRD Legal Services section – structure and contacts, with details redacted]
7.26 Most of these people would say, as did the Registrar, that their role, in summary, consists of the provision of legal advice to Members and the researching of legal materials on behalf of Membesr. The staff in this section are located in five Registries: Perth, Adelaide, Melbourne, Sydney and Brisbane. Amongst other things, they have prepared from time to time “templates” of determinations. I am told that at one stage, this section either volunteered to, or otherwise sought, and did in fact, “check” decisions by Members, on occasions requesting, if not almost insisting, upon changes beyond proofing changes. As well intentioned as this may have been, it is quite inappropriate, and if it is occurring should cease because it involves participation the work of members by staff not appointed to do it, not under oath or affirmation to do it and presents risk of contamination of decisions…
26 In his affidavit Mr Huynh deposed that he caused a search to be undertaken of the public profile entry on LinkedIn of the Tribunal Member who determined the appellants’ case at the Tribunal. Counsel for the appellants submitted that this search revealed that the Member’s main experience was in the cinema industry. It was noted that the member held a law degree, and at relevant times was a part-time Member of the Tribunal.
27 Counsel for the appellant submitted in summary that:
If the Member had sought and obtained legal advice from the MRD Legal Services Section, which was not revealed to the appellant, the decision of the member may be contaminated and it would be in the interest of justice to grant an adjournment and leave to file the subpoena.
If the MRD Legal Services Section were giving legal advice to Members, checking decisions, and requesting or insisting upon changes, that would ordinarily have to be revealed to applicants.
In the circumstances of this matter, the Member who made the decision did not have a background in legal practice, was relatively recently appointed, and whilst he had a law degree, the material did not reveal whether he was admitted as a lawyer. This gave weight to the proposition that he was likely to be a recipient for legal advice, meaning that this was not a speculative matter and it was in fact probable that the member obtained legal advice that was not disclosed to the appellant.
28 Counsel for the Minister objected to the granting of an adjournment and opposed leave to issue the subpoena the appellants sought. Counsel for the respondent submitted in summary that:
The Report was released on 23 July 2019. The respondent was provided with notice of the proposed adjournment and subpoena two days prior to the hearing, one of which was a public holiday. The appellants’ submissions were also filed late.
The principles to grant leave to issue a subpoena were summarised in Tamawood Limited v Habitare Developments Pty Ltd [2009] FCA 364 and McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785.
A request for leave to issue a subpoena cannot be used to disguise an application for discovery. The documents sought must be relevant to an issue raised on the pleadings and used to support the appellant’s case as opposed. The issuing of a subpoena cannot be used as a “fishing expedition”.
The appellant failed to indicate how the subpoena related to any of the grounds of appeal. He also failed to identify any new ground that would indicate that a Member receiving templates of reasons or a statement of legal principles would constitute jurisdictional error.
The subpoena must have a “legitimate forensic purpose” and must be relevant to the pleadings as they stand, that is that the material sought could reasonably be expected to throw light on the issues pleaded in the principal proceedings.
A subpoena which could have been obtained at an earlier stage in the proceedings should not be issued where it would unduly disrupt the conduct of the trial. The relevant Report was tabled three weeks prior to the hearing.
The appellants had also failed to comply with the Court’s timetable in relation to the filing of submissions, in circumstance where the solicitor and barrister on the record were the same representative in the matter below and the matter has previously been adjourned by the Court.
29 At the hearing, Counsel for the appellants relevantly submitted as follows:
MR BOCCABELLA: The original application in the Federal Circuit Court, as a ground, had that the tribunal had failed to properly conduct a review for the purposes of implementing part 7 and section 414 of the Migration Act and also that the decision was an improper exercise of power. Now, on appeal, those two grounds didn’t make it into the notice of appeal. But ---
…
MR BOCCABELLA: If the appellant knew of the matters that Mr Callinan revealed, obviously they would have been put in the appeal. This is a particularly unusual case… important as the principles are that are set out in McIlwain, these go the heart of the supervisory jurisdiction of this court, even on appeal, so that if it does turn out that we’re not actually looking at the reasons of the member, but are reasons of a staff member or a staff member has had a large input into it, then this court unfortunately would have failed in its supervisory role …
…
MR BOCCABELLA: It affects the supervisory jurisdiction of this court. The court will be deprived of properly exercising its supervisory jurisdiction. Now, I could be totally wrong, of course. The subpoena may reveal nothing, in which case, I can be criticised for raising the matter and I will have to wear that responsibility, but it’s not based on fanciful thoughts. It’s one of our most respected former judicial officers in conducting a report who himself raises the issue that if it is the case that members are getting legal advice , then the decision could be contaminated, for example, if the – if the reasoning of the member is substantially derived from the advice.
Now, it may be permissible to do that, but in any event it must be revealed to the applicant. The applicant must be told that the person – that the member has obtained legal advice. I mean, fundamental to our system of justice is the concept of transparency in both administrative law and in the courts and if it is – if there is a pattern and a general procedure identified by a senior former judicial officer conducting an inquiry where the registrar actually acknowledges that legal advice is being given to members, then it’s not a fishing expedition; it’s determining whether this case fell within that pattern as determined by the registrar.
(Transcript pp 8-10.)
30 Counsel for the respondent submitted in reply:
MS GRAYCAR: …if the court looks at page 2 of the appeal book, you will see what the grounds were in the Circuit Court…
…
MS GRAYCAR: So that was the Circuit Court application. There were orders made giving leave to amend and particularise the grounds; they were never particularised. All those grounds were abandoned at the hearing, other than two grounds which were in effect newly constructed and argued at the hearing. His Honour, at page 406 of the appeal book, actually referred, and critically, to the unparticularised nature of the grounds of review as a reason in itself to dismiss the application. So to say that these were grounds in the court below is actually not accurate. They were once pleaded; they were not agitated at the hearing.
Secondly, as it happens, this court does not exercise supervisory jurisdiction in migration matters. Section 476A of the Migration Act expressly limits the role of this court in migration matters and in fact it says, relying on – it’s just not memory; I have it in front of me; it’s actually in the bundle as well because one of our arguments is my friend is trying to re-agitate what he did below in this court:
The Federal Court has original jurisdiction in relation to a migration decision if, and only if –
and then there are some limited examples.
The jurisdiction exercised by this court in a migration matter is purely appellate, conferred by section 24 of the Federal Court Act. You are not exercising original – supervisory jurisdiction is original jurisdiction. The role of this court is to determine whether the court below erred.
Now, it’s common for people to raise new grounds and there are tests about whether a court will consider a new ground on appeal, but there’s a very extensive body of case law about that and about the need to ensure that this court is not being, in effect, the trial court in judicial review matters because of the structure of both the Federal Court Act and Migration Act. So I think that’s probably all I’ve got to say on what Mr Boccabella just said.
(Transcript pp 10-11.)
31 At the hearing I refused to grant an adjournment, and further refused the application for leave to issue a subpoena. At the time I indicated that I would provide reasons for these decisions in my written judgment. These are the relevant reasons.
32 The application for adjournment of the proceedings was clearly dependent on the application for leave to issue the subpoena, such that a refusal for leave to issue the subpoena would result in dismissal of the application to adjourn.
33 In considering the request for leave to issue the subpoena, the following principles set out in Tamawood are relevant:
[12] Principles governing the grant of leave by the Court to issue subpoenas were considered in detail by Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233. In that case his Honour observed, so far as is relevant in these proceedings, that:
• a request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery;
• the documents for production must be identified with reasonable particularity;
• the category of documents must not be so wide as to be oppressive;
• the material sought must have an adjectival relevance, that is, an apparent relevance to the issues in the principal proceedings. The adjectival relevance looks towards the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings (cf Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90);
• more specifically, the documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be used for the purposes of “fishing” or for the purpose of determining a preliminary question as to whether a party has a supportable case;
• there must be a legitimate forensic purpose for the production of documents;
• a wide-ranging subpoena seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave;
• the issue of the subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient.
[13] It is also clear that although a mere “fishing” expedition can never justify the issue of subpoenas, it may be enough that it appears to be “on the cards” that the documents will materially assist the applicant: Alister v R (1984) 154 CLR 404; cf R v Saleam [1999] NSWCCA 86 at [11].
[14] The practice whereby the Court gives leave for subpoenas to be issued against a third party pursuant to O 27A has survived the introduction of O 15A Federal Court Rules providing for orders of the Court relating to non-party discovery. In relation to a third party, it is clear that a subpoena duces tecum may be directed to a third party prior to trial:
where it appears to the court to be in the interests of justice and the proper and expeditious conduct of a proceeding that a person produce documents before the date of hearing of the application. (Hughes v WA Cricket Association (1986) 66 ALR 541 at 543; cf P Dawson Nominees Pty Ltd v Multiplex Ltd (2007) 64 ACSR 53 at 57 [23])
[15] Against a third party however a subpoena is not to be used as a substitute for discovery. As Jordan CJ observed in The Commissioner for Railways v Small (1938) 38 SR (NSW):
A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant… (at 573)
34 Further in Gloucester Shire Council v Fitch Ratings Inc [2016] FCA 587, Wigney J explained at [24]:
… A finding of “fishing” amounts to a finding that the subpoena has no legitimate forensic purpose because the documents are sought to discover if the issuing party has a case, not to support a case that has already been articulated: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575. A finding of “fishing” also appears to involve a question of oppression. A subpoena will be more readily set aside if great numbers of documents are required to be produced in circumstances where it cannot be demonstrated that they are likely to be sufficiently relevant: Dorajay at [34].
35 As I noted earlier, documents sought by the appellants in this case were:
1. All written material, or a copy of any written material, given or produced to the Tribunal constituted by Member Michael Hawkins in Case Number 1507021 for the purposes of the review consisting of all internal memoranda, emails and other documents to and from the MRD Legal Services of the Administrative Appeals Tribunal.
2. Any other material furnished or given to Member Michael Hawkins in Case Number 1507021 which could constitute or be considered as legal advice from any other person employed or engaged by the Administrative Appeals Tribunal.
36 In this case I make the following observations.
37 First the documents sought by the appellants do not have potential relevance to the pleadings as they stand. The appellants sought to appeal from a decision of the Federal Circuit Court, claiming error by the primary Judge in finding that the decision of the Tribunal was not infected by jurisdictional error. In so doing the appellants relied on the grounds of appeal to which I have already referred, which raise alleged errors concerning:
Access by the Federal Circuit Court Judge to the transcript of the Tribunal hearing (grounds 1, 2 and 3).
The view the primary Judge took in finding that the grounds before him were not particularised (ground 4).
The failure of the Tribunal to conduct a proper hearing (referable to the alleged failures to properly incorporate evidence from previous hearings, explain to the appellants the status of their evidence at the first hearing, properly respond to the appellants’ claims, understand the evidence of the appellants, provide adequate reasons and use proper reasoning) (ground 5).
Proper interpretation of ss 5H, 5J, 36(2) and 36(2A) of the Migration Act (ground 6).
38 The documents sought are not relevant to these grounds.
39 Second, the appellants have failed to identify with any clarity any new ground of appeal from the decision of the Federal Circuit Court that could be raised referable to the Tribunal member receiving legal advice or a template for reasons.
40 Third, and placing to one side the issue whether a Tribunal member is entitled to receive legal assistance in the preparation of reasons for decision and whether such assistance should be disclosed to an appellant, the appellants in this matter are unable to put forward any evidence that the Tribunal member did in fact receive legal advice from the MRD Legal Services Section. The only material the appellants have produced in support of their application is a very short extract of the Report. I am unable from the material before me or the arguments of the appellants to ascertain whether there is anything else of relevance in the Report to this subpoena application. I further consider that there is a serious prospect the extract from the Report the appellants produced is being read out of context for the purposes of this application.
41 Fourth, I reject the proposition that the professional background of a Tribunal Member supports an inference that he either required or received legal advice or assistance. Nor do I consider that a LinkedIn page alone necessarily reflects all of the Members’ professional training, education and experience.
42 The application for leave to issue the subpoena is in my view a fishing exercise by the appellants, for material which is not relevant to their present case.
43 As this application was refused, it followed that there was no purpose to adjourning the proceedings. I note further that the appellants were represented by Counsel, and in a position to proceed in respect of their appeal.
44 I now turn to the substantive appeal before the Court.
Substantive Application
Grounds of Appeal 1, 2 and 3
45 As I noted earlier, grounds of appeal 1, 2 and 3 all concerned the alleged error by the primary Judge in not giving himself access to the transcript of the hearing before the Tribunal. In ground 1 the appellants referred to the conduct of the primary Judge in “not giving himself access to the transcript of the AAT” and therefore not conducting a proper judicial review. In grounds 2 and 3 the appellants claimed that the Minister had contributed to or caused this error. In ground 3 the appellants also claim that the Minister breached orders of a Registrar by failing to provide an audio recording.
46 At the hearing before me, Counsel for the appellants explained that before the primary Judge, they had sought to read an affidavit which included the relevant transcripts, however his Honour refused to allow this.
47 In written submissions dated 13 August 2018, the appellants relevantly submitted:
41. At the time hearing both the court and the respondent was fully aware of the applicants’ (ie the appellants’ case).
42. However, the learned trial judge hampered his consideration of the matter by not admitting the transcript of the of the [sic] hearing before the AAT.
43. Again there was no suggestion that the transcripts were inaccurate. The transcripts complete the spirit of the directions order of Registrar Lynch made on 23 October 2017. That order directed the respondent to file a court book of relevant documents. The relevant documents are ordinarily the material before the AAT.
44. There is no transcript ordinarily done of the AAT hearing. The transcripts compiled by the applicants in the Federal Circuit Court merely completed the record of the AAT. This was especially important in this case as it appears the second member (who made the decision), did not avail himself of the evidence before the first member.
45. The Federal Court sitting as the appeal court, determining the matter as a re-hearing on the papers, can receive the evidence of the transcripts for the purpose of completing the record before the AAT for the purposes of this appeal.
48 At the hearing I asked Counsel for the appellants to further explain these grounds. Counsel submitted:
If we go – now, the difficulty is, if one actually goes to the transcript itself, one sees that it’s not a question of just practising Catholicism. The applicant’s case was that they were activists. And the member, by not having access to the first transcript, did not get a complete understanding of what the applicant’s case was.
(Transcript p 24 lln 26-29.)
49 So far as I can understand the appellants’ case, they claim that:
The primary Judge erred in not having regard to the transcript of the Tribunal (or possibly both Tribunal hearings); and
The Tribunal erred in respect of its reasons in not having regard to the transcript of the earlier Tribunal hearing.
50 Counsel for the respondent submits that an applicant for judicial review bears the onus of proof; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; at [67]. The appellant must not only establish that there was an error by the decision maker but that the error is material and hence a “jurisdictional error”; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599.
51 I understand from submissions before me that, in the proceedings before the primary Judge, the appellants sought to put before his Honour relevant Tribunal transcripts. In his affidavit affirmed 17 April 2018 in the Federal Circuit Court proceedings, Mr Huynh annexed three transcripts of proceedings of the Tribunal dated 17 November 2016, 7 August 2017 and 18 August 2017. However as the primary Judge pointed out in his judgment at [3]:
On 23 October, 2017 orders were made permitting the applicants to file an amended application if they wished to do so and to serve written submissions by 25 January, 2018. Despite the applicant being legally represented, nothing was filed and served by that date. However, the applicants (by their solicitor) did file written submissions and an affidavit on 18 April, 2018. The first respondent filed written submissions on 18 May, 2018 in accordance with the Court’s directions.
52 His Honour also observed at [35]:
On 23 October, 2017 a registrar made orders with a view to preparing this application for hearing. One of the directions made (direction number four) provided the applicant with an opportunity to file and serve any affidavit containing any additional evidence upon which they wished to rely relevant to the grounds of review. The only affidavit material filed is an affidavit by the applicant’s lawyer which annexes transcripts of the three hearings undertaken in respect of the applicants’ application for review of the delegate’s decision.
53 I note that paragraph 4 of the Orders to which his Honour referred at [35] of the primary judgment allowed the appellants to file and serve by 25 January 2018 any affidavit containing any additional evidence upon which they proposed to rely relevant only to the grounds of review.
54 It is apparent that the appellants failed to comply with these orders in at least two ways. First, they sought to file an affidavit of Mr Huynh (affirmed 17 April 2018) three months out of time. Insofar as I can ascertain, no explanation was given to his Honour for the appellants seeking to file this evidence so far out of time. In the absence of explanation his Honour was entitled to refuse to admit that evidence.
55 Second, the basis on which the appellants sought to file the affidavit of Mr Huynh is entirely unclear, because any evidence filed was meant to be relevant to the two grounds of review pressed before the primary Judge, namely:
1. The tribunal failed to properly interpret and apply, 5H, 5J, s36(2) and s36(2A) of the Migration Act 1958;
2. The tribunal failed to properly conduct a review for the purpose of implementing Part 7 and/or ss 414(1) of the Migration Act 1958.
56 In particular in relation to ground 1 before the primary Judge, I note:
Section 5H defines the meaning of “refugee”.
Section 5J defines the meaning of “well-founded fear of persecution”.
Section 36(2) identifies a criterion for a protection visa.
Section 36(2A) identifies when a non-citizen suffers significant harm.
57 In relation to ground 2, I note:
Part 7 of the Migration Act provides for the review of Pt 7 reviewable decisions by the Tribunal, and relevant powers of the Tribunal
Section 414(1) requires the Tribunal to review a Pt 7 reviewable decision if a valid application is made under s 412 for review of the decision
58 I am unable to identify how the evidence of the previous hearings was relevant to the grounds of review before the primary Judge. I make this observation in light of the fact that the appellants were represented by lawyers at relevant times.
59 The primary Judge endeavoured to make sense of the pressed grounds, which were so unparticularised as to be meaningless. In particular, I note that his Honour at [31]-[39] referred in detail to the relevant history in the Tribunal and the arguments of the appellants that the Tribunal had no regard to previous hearings. His Honour concluded:
38. But, in my view, this argument misses the point made by the applicants. The applicants’ point seems to be that whilst the Tribunal may not have been bound to have regard to the recording of the previous hearing or a transcript of it, if it intended not to refer to those matters it ought to have told the applicants of that so that they had the opportunity to present more fulsome evidence in the second and third hearings.
39. But, as I have a ready [sic] set above, I am not satisfied and I cannot find that the Tribunal did not have regard to the evidence given by the second applicant at the first hearing. In the references to the earlier hearing in the Tribunal’s reasons, it is more probable than not that the Tribunal had regard to the evidence given in the earlier hearing. I so find.
60 I note in particular the letter from the Tribunal to the appellants dated 7 July 2017 in which the appellants were notified that their application for review was to be determined by another Tribunal Member, and which continued:
All documents and other material that were previously considered by Member Henry have been given to Member Hawkins. This material includes the Department of Immigration and Border Protection file; recordings of any hearings with us; and any submissions or other evidence provided to us. We will write to you if Member Hawkins requires any further information.
61 The Tribunal also at [43] of its reasons specifically noted that the appellants had had previous hearings, had given evidence and presented arguments at those hearings, and that they were assisted by an interpreter at those hearings.
62 In my view the findings of his Honour that the Tribunal had regard to the evidence at the earlier hearings was open on the material before the Court.
63 In summary, in circumstances where:
The appellants were provided the opportunity to file an amended application, submissions and evidence in the Federal Circuit Court proceedings;
No amended application was filed;
Affidavit evidence was provided months out of time without explanation, such that any admission of that evidence was at the discretion of the primary Judge;
The transcripts of the Tribunal hearings annexed to that affidavit were not demonstrably relevant to the grounds of review pressed in the primary proceedings, which in themselves were unparticularised; and
The primary Judge in any event considered the appellants’ arguments referable to the issue whether the Tribunal had had regard to evidence given by the appellants at earlier hearings, and concluded that it had,
it was open to the primary Judge to refuse to allow the appellants to rely on the transcripts of hearing annexed to Mr Huynh’s affidavit of 17 April 2018.
64 As the Minister properly submits, the onus was on the appellants to make their case before the primary Judge. The onus also lies with the appellants to substantiate their claims that the primary Judge erred.
65 It is entirely unclear to me how the primary Judge can be said to have erred, when grounds of appeal 2 and 3 allege that conduct of the Minister “contributed to or caused” the alleged error of his Honour. No claim of fraud or misfeasance on the part of the Minister has been pleaded.
66 In relation to the audio recording to which ground of appeal 3 refers, the Orders of 23 October 2017 did not specifically require the filing of an audio recording as claimed by the appellants. Rather, the relevant Order was as follows:
2. By 4.00pm on 16 November 2017 the first respondent shall file and serve a bundle of relevant documents (green book) in an electronic form and for that purpose, the document shall:
(a) be in a portable document format (PDF)
(b) be capable of being searchable for specified text;
(c) have an index and shall be paginated;
(d) have each entry in the index bookmarked; and
(e) be set so that when opened:
(i) it shall display a 100% zoom; and
(ii) the bookmarks menu shall be displayed.
67 I am not satisfied that an audio recording was a “document” within the meaning of those Orders. While “document” may be broadly defined by s 2B of the Acts Interpretation Act 1901 (Cth) to include anything from which sounds, images or writings may be reproduced, in my view that definition is irrelevant in this case. There is nothing before me to suggest that the “bundle of documents” the Minister was required to file pursuant to the orders of 23 October 2017 included an audio recording. Indeed, the reference to the bundle of documents being in PDF format, and having an index and being paginated, and the further reference to “the green book” strongly points to the documents in the bundle being in printable form, as distinct from audio.
68 I consider that grounds of appeal 1, 2 and 3 have no merit.
Ground of Appeal 4
69 The fourth ground of appeal is that the primary Judge erred by dismissing the application before the Court on the basis that the ground was not particularised. In this ground of appeal the appellants claimed:
4. The learned Federal Circuit Court judge erred in dismissing the application on the basis that the grounds were not particularised because:
(a) The first respondent never sought particulars of any ground;
(b) The rules and procedure for judicial review did not have pleadings in that the parties do not exchange a statement of claim, defence and reply;
(c) At the time of filing an application an applicant does not have the court book or transcript of hearing;
(d) The application therefore is akin to a type of indorsement of writ identifying in general terms what the grounds of the application are.
(e) The practice of judicial review in the Federal Circuit Court is that the parties exchange detailed written submissions;
(f) Those written submission properly and adequately particularised and detailed the applicants’ grounds;
(g) No new grounds were raised in the Federal Circuit Court by the appellants
70 The appellants submit in summary, that the authorities relied upon by the primary Judge in relation to dismissing an appeal on the basis the grounds were not particularised, namely SZNXA v Minister for Immigration and Citizenship [2010] FCA 775, SZNXA & Anor v Minister for Immigration and Citizenship & Anor [2010] HCASL 250; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 and MZARG v Minister for Immigration and Border Protection [2018] FCA 624, are not apposite as they generally refer to unrepresented litigants at first instance.
71 Further, the appellants submitted that a practice has emerged in the Federal Circuit Court in migration matters for pleadings not to be used, and for the submissions of both parties to set out the arguments before the Court. The primary Judge did not find that the submissions were inadequate, nor that they failed to articulate the appellants’ case. His Honour went on to determine the merits of the matter based on the submissions as filed.
72 At the hearing before me, Counsel for the appellants directed me to provisions of the Federal Circuit Court Rules, namely rr 1.03, 4.01, 4.02, 44.02 and 44.05, and submitted:
Etcetera. And that’s the extent of the provisions in relation to the what the rules say. Your Honour, in my submission – but first of all, in the absence of an application to be sought for particulars, and yet the matter is conducted at the court level on the basis of the parties exchanging submissions, that that sets out the case of both parties. There was no complaint about the submission. I mean, there was a complaint about the submissions in terms of whether they were correct or not, but there was not complaint about the nature of the submissions, that they didn’t set out what the applicant was arguing. And, your Honour, there is – if Ms – if the Federal Circuit Courts want to push everybody into pleadings or quasi pleadings, it’s only going to make it a hell of a lot more expensive, and we will end up with more unrepresented parties before the courts.
The current system, I submit, works exceptionally well. The parties set out their case on both sides in submissions. Now, it’s very rare that actual evidence is called, apart from what happened before the tribunal. And hence, the submissions and the application are based on ordinary agitation of issues at the hearing based on submissions, and that’s how it has been done for a very long time, and, I submit, it’s a good system. If a person sought to adduce evidence or do things outside of the metes and bounds of the tribunal process, that may be a different issue. But that wasn’t done here. All that was done was produce the actual transcript for the purposes of the court having the full record before it.
(Transcript p 34 lln 14-34.)
73 It was further submitted that the situation would be different if the primary Judge had decided that it could not consider the submissions due to the lack of particularisation. However, in this matter the primary Judge went on to consider the submissions and did not seem hampered by the lack of particularity.
74 As Beach J explained in AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 at [19]:
The appellant’s grounds of appeal 3 and 6 to 11 are generic and unparticularised. They are effectively devoid of content. It is not incumbent on the Court to independently consider for itself whether such generic grounds might be capable of being particularised so as to identify a specific error made by the primary judge or a jurisdictional error made by the Tribunal. The appellant was given an opportunity to adequately particularise these grounds in advance of the hearing. He has failed to do so.
75 I respectfully agree with these comments of his Honour.
76 In this case grounds 1 and 2 before the primary Judge were generic and unparticularised, and entirely devoid of content. It was not incumbent on his Honour to independently consider whether such generic grounds might be capable of being particularised, however his Honour made a genuinely diligent effort to do so. In respect of the sub-grounds to ground of appeal 4, I find:
(a) I reject the submission of the appellant that the first respondent ought to have sought particulars of grounds 1 and 2 in the Federal Circuit Court. It was for the appellants to substantiate their case before the primary Judge, and it was certainly not incumbent on the Minister to request clarification of meaningless claims.
(b) Rule 4.01 of the Federal Circuit Court Rules 2001 provides that, unless otherwise provided in those Rules, a proceeding must be started by filing an application in accordance with the approved form. Rule 44.05 of the Federal Circuit Court Rules 2001 provides for the form of an application in migration matters. Paragraph 3 of the Instructions for Completion of that form provides:
Each ground of the application must identify a jurisdictional error by reason of which it is claimed that the migration decision under review is not a ‘privative clause decision’ within the meaning given by sub section 474 (2) of the Migration Act 1958. Particulars of each ground must be provided which are sufficient to allow the Court to understand how each ground relates to the decision, the reasons for decision, the circumstances of the decision, or the procedures concerned with the making of the decision, as the case may be.
(Emphasis added.)
The prescribed form refers back to these Instructions. The obligations of applicants in migration cases in the Federal Circuit Court of Australia are clear. I am not satisfied that the appellants were relieved of their obligation to properly particularise their claims before the primary Judge as they assert.
(c) I have difficulty understanding the point the appellants sought to make in ground of appeal 4(c). Pursuant to Orders of the Federal Circuit Court of 23 October 2017, the appellants were provided an opportunity to file an amended application two months after the Minister was required to file a bundle of relevant documents. They had ample opportunity to have regard to the court book in preparation of their case. They have no cause for complaint now.
(d) I repeat my comments under (b) above.
(e) It may well be the practice of the Federal Circuit Court that the parties exchange detailed written submissions. Indeed, this is a proper practice. It does not, however relieve the appellants of their obligations in properly formulating their case. I repeat my comments under (b) above.
(f) I repeat my comments under (b) above.
(g) I have difficulty understanding the point the appellants sought to make in ground of appeal 4(g). I further repeat my comments under (b) and (c) above.
77 Ground of appeal 4 has no merit.
Ground of Appeal 5
78 Ground of appeal 5 appears to have its genesis in ground 2 before the primary Judge, to the extent that before his Honour the appellants claimed that the Tribunal had failed to conduct a proper review. However as I noted earlier in this judgment:
The Tribunal had written to the appellants informing them that the evidence they gave at the earlier Tribunal hearings would be taken into account by the reconstituted Tribunal;
The Tribunal Member referred to the earlier Tribunal hearings; and
The primary Judge, in detail, referred to relevant events and concluded on the material before the Court that the Tribunal had had regard to evidence from previous hearings.
79 In my view this clearly answers grounds of appeal 5(a) and (b).
80 In relation to grounds of appeal 5(c), (d), (e) and (f), it is entirely unclear to me how the Tribunal failed to act as the appellants contend in those subgrounds, and how the primary Judge erred in those respects. This absence of particularisation results in these claims being vague to the point of meaningless.
81 Ground of appeal 5 has no merit.
Ground of Appeal 6
82 Ground of appeal 6 substantially replicates the first ground of review before the primary Judge, and essentially complains that his Honour did not find in the appellants’ favour in respect of that ground.
83 Not only is this ground of appeal not particularised, as I observed earlier in this judgment ground of review 1 before his Honour was unparticularised to the point of being meaningless. The absence of any explanation as to how his Honour allegedly erred means that ground of appeal 6 is similarly meaningless.
84 Ground of appeal 6 has no merit.
Conclusion
85 For completeness, I include in the formal orders of the Court attached to this judgment the Orders I made on the date of the hearing refusing leave to issue a subpoena, and refusing to adjourn the hearing.
86 The appeal should be dismissed. The appellants should pay the costs of the first respondent, such costs to be taxed if not otherwise agreed.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
