FEDERAL COURT OF AUSTRALIA

FKV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1950

ORDERS

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 be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

Background

1    Before me is an originating application for relief under s 39B of the Judiciary Act 1903 (Cth). The applicant seeks judicial review of the whole of the judgment of the Federal Circuit Court of Australia in FKV17 v Minister for Immigration and Border Protection & Anor [2018] FCCA 2260, and relief in the form of writs of certiorari, mandamus, and prohibition. In that primary decision his Honour dismissed an application for extension of time to file an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal’s decision had in turn affirmed an earlier decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) visa (protection visa).

2    Both the applicant and the first respondent were represented by Counsel in the Federal Circuit Court and in this Court.

3    The applicant is a citizen of Uganda who entered Australia on 5 July 2013 on a prospective spousal visa. I understand his substantive spousal visa was refused on 14 July 2014 and that decision was unsuccessfully reviewed at the then Migration Review Tribunal.

4    The applicant applied for a protection visa – the subject of the current proceeding before me – on 2 October 2014. He claimed during the application process for his visa that he was afraid of forced recruitment from the Lord Resistance Army (LRA), and of the family of his ex-girlfriend who blamed him for her death. He explained to the delegate, inter alia, that:

    When he was a child, his parents sent him away from his home village in northern Uganda to stay with a relative in the capital, Kampala, in fear of a rebel group known as the LRA which abducted young people and forced them to join their group.

    The applicant later attempted to return to his home village but was caught and abducted by the LRA for a period of three months.

    After forming a relationship with a Muslim girl who subsequently fell pregnant, he was attacked by her parents and beaten up. The family kept him captive for two months.

    He was informed that his girlfriend attempted to procure an abortion but died in the process. He was also informed that his girlfriend’s parents intended to stone him to death. As they were unable to find the applicant, his girlfriend’s parents instead killed his brother.

    The applicant later made contact with his current wife and they proceeded to get married and make arrangements to move to Australia.

    At a later stage he returned to his home village to look for his brother’s family and was informed that his ex-girlfriend’s family were still looking for him.

5    The delegate was not satisfied that the applicant met the criteria for protection under the Migration Act 1958 (Cth), and refused to grant a protection visa on 24 July 2015.

in the Tribunal

6    On 27 August 2015 the applicant lodged an application for review of the delegate’s decision in the Tribunal. The Tribunal made its decision on 9 August 2017. In summary, the Tribunal :

    accepted that the applicant had a genuine fear of returning to Uganda because of his traumatic experiences: at [24].

    was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason from his ex-girlfriend’s family if he were to return to Uganda: at [27].

    was not satisfied that there was a real chance of persecution from the LRA if the applicant were to return to his home village: at [33].

    was not satisfied that the applicant had a well-founded fear of persecution based on emotional, financial and security factors if he were to return to Uganda: at [38].

    was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to Uganda: at [39].

    was not satisfied that there was a real risk of significant harm from the LRA if the applicant was removed from Australia to Uganda: at [45].

    was not satisfied that there was a real risk of significant harm from the applicant’s ex-girlfriend’s family: at [49].

    was not satisfied that there is a real risk of significant harm on the basis of emotional or financial factors or the general security situation if the applicant were to be removed from Australia to Uganda: at [54].

7    In the course of its reasons the Tribunal also referred to a certificate issued under s 438 of the Migration Act, in the following terms:

56.    The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information in folios 46 to 50 and folio 78 of the Department file would be contrary to the public interest, because these folios contain information relating to “an internal working document and business affairs”. The Federal Court decision of MZAFZ v MIBP [2016] FCA 1081, Beach J, VIC 461 of 2016, considered a s.438 certificate with similar wording. In light of this decision, the Tribunal finds that the certificate is not valid, as it does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal disclosed the information, and further notes that, in any event, the information in these folios is not relevant to this decision, as it is information relevant to his detention (such as names and addresses, and details of finances and property) and is not of probative value to this review. The Tribunal has not taken account of information in these folios.

8    Ultimately, the Tribunal concluded:

61.    … the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

62.    Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

63.    There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

9    The Tribunal affirmed the delegate’s decision refusing the protection visa: at [64].

decision of the Federal Circuit Court

10    Section 477(1) of the Migration Act 1958 (Cth) (Act) required the applicant to file any application for judicial review of the decision of the Tribunal within 35 days. The applicant instead commenced the proceeding at that Court on 12 December 2017 – approximately three months out of time – and therefore required leave pursuant to s 477(2) of the Act for an extension of time to file an application for judicial review.

11    Before the primary Judge the applicant relied on a proposed further amended application, which was twelve pages in length. It set out five grounds which were extensively particularised, to the point of constituting submissions. For the moment, placing the lengthy particulars to one side, the grounds were:

Ground 1: The non-disclosure of information under section 438 of the Migration Act 1958 (Cth)

1.    The certificate issued under section 438(2)(a) of the Migration Act 1958 (Cth) with regard to folios 46 to 50 and 78, was invalid and was therefore not a process according to law. As a consequence, the non-disclosure of certain information under section 438(1)(a) of the Migration Act 1958 (Cth) constituted a denial of procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth).

…

Ground 2: The Tribunal misapplied the relevant law with regard to the real risk of harm from the family of “Asha”

2.    There was an insufficient logical or evidentiary basis for the Tribunal to find from [26] to [27]of the decision record that the applicant does not face a real risk of serious harm under the refugee convention or a real risk of significant harm under the complementary criterion from [46]-[49], from the family of “Asha”. The Tribunal therefore misapplied, misunderstood or misconceived the relevant law at [26] to [27] of the decision record by finding that the essential and significant motivation for the persecution feared is revenge for Asha’s death, and not his religion.

…

Ground 3: The real chance of persecution from the LRA

3.    There was in an [sic] insufficient logical or evidentiary basis for the Tribunal to find at [33] of the decision record that the applicant does not face a real risk of serious harm under the refugee convention or a real risk of significant harm under the complementary criterion from [43]-[45] from the LRA if the applicant was to return to his home area in the reasonably foreseeable future. The Tribunal therefore misapplied, misunderstood or misconceived the real chance test under the refugee and complementary criterion at [33] and [45] of the decision record.

…

Ground 4: The real chance of persecution for psychological, social, economic or political factors

4.    There was insufficient logical or evidentiary basis for the Tribunal to find at [38] of the decision record that the applicant does not face a real risk of serious harm under the refugee convention or significant harm under the complementary criterion from [54] on the grounds that the applicant faces a real risk of harm due to psychological, social, economic or political factors, or that the applicant would be able to subsist or that he would not be subjected to persecution, involving systematic and discriminatory conduct by state or non-state agents, after accepting he was a former child soldier for the LRA and he has no family in Uganda. The Tribunal therefore misapplied, misunderstood or misconceived the real chance test under the refugee criterion from [38] and under the complementary criterion at [54] of the decision record by finding that the serious harm test does exclude serious mental harm.

…

Ground 5: The referral for Ministerial intervention

5.    There was in an [sic] insufficient logical or evidentiary basis for the Tribunal to find at [58] of the decision record that the “applicant’s particular circumstances which provide a sound basis for believing that there is a significant threat to his human rights or human dignity if he returns to Uganda” but the “mistreatment does not meet the criteria for the grant of any type of protection visa”.

12    In respect of the application before him his Honour found in summary as follows.

13    In relation to the first ground his Honour considered the certificate issued under s 438(2)(a) of the Migration Act 1958 (Cth) with regard to folios 46 to 50 and 78. Section 438 relevantly provides:

Tribunal's discretion in relation to disclosure of certain information etc.

(1) This section applies to a document or information if:

(a)    the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)    must notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)    may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)    may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

(4)    If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

(Emphasis added.)

14    Folios 46 to 50 and folio 78 were documents in the departmental file, the “folios” being page numbers in that file. The document at folio 46 was the applicant’s application for a protection (Class XA) visa. The document at folios 47 to 50 was a statutory declaration of the applicant. The document at folio 78 was the decision record of the delegate in respect of the applicant’s protection visa application. The primary Judge observed that ground 1 before him related to paragraph [56] of the Tribunal’s decision. His Honour took the view that:

    this paragraph was anomalous, and did not make any sense in circumstances where the information in folios 46 to 50 and 78 had nothing to do with the detention of the applicant and had no details of his finances and property (at [37]);

    The Tribunal had said at [56] that it had “not taken account of information in these folios”, when clearly it had thoroughly discussed these matters (at [38]);

    it would be very strange for the Department to issue a certificate in respect of this information certifying that its disclosure would be contrary to the public interest (at [41]);

15    His Honour noted the argument of the applicant that there must have been a certificate or the Tribunal would not have mentioned that such a certificate had been issued, that such a certificate had not been disclosed in the Court book, and therefore there has been a non-disclosure which was a denial of procedural fairness and constituted a jurisdictional error.

16    His Honour observed however:

44.    The argument goes further because folios 46 to 50 and 78 have been identified. The Tribunal said in the last sentence of paragraph 56 that it had not taken account of information in these folios. This would mean that the Tribunal has not taken into account the application, the statutory declaration and the protection Visa decision record. It is mandatory for the Tribunal to take those matters into account and, if it did not take those matters into account, there would be a jurisdictional error.

17    The primary Judge noted that the Minister relied on the affidavit of the delegate of the Minister who made the original decision not to grant the applicant a protection visa, in which the delegate affirmed that he had erroneously circled “yes” in response to the question “is a relevant certificate of disclosure attached?”, and further affirmed that no s 438 certificate was ever issued.

18    His Honour found that the situation was unsatisfactory, and continued:

47.    …The Applicant claims that the Minister should have had the Tribunal member swear an affidavit on this issue. I do not accept that this suggested course would have been appropriate; in fact, I am of the view that it would have been very inappropriate for the Minister to attempt such an exercise.

48.    However, paragraph 56 clearly states that “the Tribunal disclosed the information...” which would mean that the Applicant himself would have been in a position to know what material was disclosed to him if paragraph 56 is a true statement of what occurred during the hearing. The Applicant has filed two affidavits in this proceeding but has not chosen to enlighten this Court as to what paragraph 56 is all about.

49.    It seems to me that the only rational conclusion that I could come to, given the state of all of the evidence before me, is that paragraph 56 has been included in the reasons of the Tribunal by error. It should properly be ignored.

19    His Honour further noted that the applicant had relied on the authority of SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055 and sought an adjournment because the decision was the subject of an appeal to the High Court, however his Honour considered that as no certificate had been issued in this case and paragraph 56 was inserted into the Tribunal’s reasons in error, there was no reason to consider principles espoused in SZMTA.

20    His Honour therefore took the view that the first ground of review failed.

21    In respect of the second of review, his Honour noted that the basis for the ground was that the Tribunal had understated the motivation of the family of “Asha” to harm the applicant because of his Christian religion.

22    His Honour examined the findings of the Tribunal, including that persecution for multiple motivations would not satisfy the relevant test unless a Convention reason or reasons constituted at least the essential and significant motivation for the persecution feared. In respect of “Asha” his Honour observed that the Tribunal had found the essential and significant motivation for the persecution feared was revenge, and not religion. His Honour continued:

58.    Having made that factual finding, it was proper to conclude that it was not satisfied of the convention criterion for that issue.

59.    When looking at the complementary protection criteria, the Tribunal was not fettered by needing to consider the reasons for the risk being confined to convention reasons. The findings that were made in paragraphs 46 to 49 were also open to the Tribunal. It is of note that the Tribunal found that in the years while the Applicant lived at the mission, the family of A did not find him, or it seems even look for him.

60.    As this was a finding that was open on the evidence it cannot be said that there was “an insufficient logical basis” for the finding. As it is a finding of “non-satisfaction”, there does not need to be an evidentiary basis for that finding.

61.    Therefore ground two fails.

23    In respect of the third ground of review, his Honour noted at [63] that the reasoning of the Tribunal centred on the country information that indicated there was little presence of the LRA in Uganda although they were present in neighbouring countries. His Honour continued:

63.    …As the claim of the Applicant was that he would be targeted by the LRA, the finding that was made by the Tribunal, regarding both the convention and complementary protection criteria, was one that was open to it.

24    His Honour also formed the view that the applicant sought to argue a claim which he had not made before the Tribunal, namely that he would be recognised as a former LRA soldier and harmed by persons in the general population seeking revenge for atrocities committed by the LRA. His Honour further concluded that before the Tribunal this claim did not naturally arise from the factual circumstances of the application.

25    Accordingly his Honour concluded that he was not able to consider this ground, and further the relevant finding of the Tribunal was open to it.

26    In relation to the fourth ground of review his Honour noted at [70] the conclusion of the Tribunal that there was no evidence that the applicant would be persecuted for any of the reasons he claimed in this ground, and that that conclusion was open to the Tribunal.

27    His Honour further noted that the second, third and fourth grounds of review sought impermissible merits review.

28    The primary Judge noted that the fifth ground of review was referable to paragraph 58 of the Tribunal’s reasons which read:

58.    The Minister has issued guidelines explaining the circumstances in which he may exercise his public interest powers. The Tribunal notes from the Ministerial guidelines that the Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more unique or exceptional circumstances. Having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417(1), set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention as there are unique or exceptional circumstances. This is because of the applicant’s particular circumstances which provide a sound basis for believing that there is a significant threat to his human rights or human dignity if he returns to Uganda, but the mistreatment does not meet the criteria for the grant of any type of protection visa.

29    Further reasoning of the Tribunal was as follows:

59.    The applicant has experienced extreme trauma in Uganda. At the age of 12 he was abducted by the Lord’s Resistance Army and forced to work for them for 3 months, with very little food or water. During this time he was harshly treated, and had to carry heavy loads and do other tasks. He witnessed beatings and killings. His experience of being forcibly recruited as a child is supported by independent country sources which indicate that children of his age were targeted by the LRA at the time. After three months he was left in the jungle with other children, and was lost for a week. When they found the nearest town, he discovered that the Lord’s Resistance Army had invaded his village, and both his parents and four siblings were missing. He never saw them again. He lived in an internally Displaced Persons Camp for four years. He was then abducted by the family of a girl who were angry the he had made her pregnant. She died after trying to abort the baby and the family blamed the applicant. His sister and brother died in mysterious circumstances and he suspects this girl’s family was involved. He fled to a mission where he lived until he made arrangements to come to Australia on a spouse visa. Given these traumatic circumstances, particularly his forcible abduction by the Lord’s Resistance Army, and the tragedies of losing family members, he is likely to experience further trauma if returned Uganda [sic]. There have been many commentaries on the extensive trauma suffered by LRA child abductees.

60.    On the basis of this information, this may be an appropriate matter for the Minister to consider pursuant to s417(1) of the Act. The applicant may wish to request Ministerial Intervention himself, and in doing so to provide any additional material that may be considered relevant to his circumstances to the Minister.

30    At [75] the primary Judge noted the contention of the applicant that it was illogical for the Tribunal to be satisfied that there could be a significant threat to the human rights or human dignity of the applicant if he returned to Uganda, but that such mistreatment would not meet the criteria for the grant of any type of protection visa. His Honour continued:

76.    But the Tribunal is simply stating the basis for which there could be ministerial intervention. Ministerial intervention proceeds upon a premise that the decision of the delegate or Tribunal is a correct decision and in accordance with all of the provisions of the Act.

77.    The statement made by the Tribunal accords with everything that the Tribunal had earlier said; that is, that the claims of the Applicant do not meet the criteria under the Act for a protection Visa to be issued.

78.    However, this statement is totally superfluous to the reasoning of the Tribunal in coming to the conclusion that the decision of the delegate be affirmed. It is not in any way material to the decision made by the Tribunal and, therefore, could not form any basis to find jurisdictional error.

79.    This ground must also fail.

31    Finally his Honour noted that the application to review was 90 days out of time. His Honour examined the reasons given by the applicant for the delay in filing, however was not persuaded that those reasons were adequate. His Honour noted at [82]-[83] that he had considered the merits of the application on the basis that the merits were a major consideration in determining whether time for filing should be extended. His Honour formed the view that the applicant had failed on the merits, and accordingly that the application for extension of time in which to file the application should be refused.

Application to the Federal Court for judicial review of the decision of the federal circuit court

Grounds of review and relief sought

32    In his application the applicant relies on six numbered grounds of review, however each of those grounds includes various sub-grounds.

33    In substance, in his first ground of review the applicant contended that his Honour misunderstood the principles of law referable to whether it was in the interests of justice to grant the applicant an extension of time. The second to sixth grounds of review substantially repeated the grounds of review before the primary Judge.

34    As was the case below, the lengthy application for review in this Court contained a mix of grounds of review and submissions. It is useful to set out the application in full:

Ground 1: The primary judge denied the applicant procedural fairness or committed jurisdictional error by denying the applicant an extension of time

1.    The primary judge denied the applicant procedural fairness and/or committed jurisdictional error, and/or committed an error on the face of the record, at [83] of the judgment by exercising the discretion unreasonably or by misapplying, misunderstanding or misconstruing the applicable law by finding that it was not in the interests of justice to grant the applicant an extension of time pursuant to section 477(2)(b) of the Migration Act 1958 (Cth).

Particulars

The protection claims

a)    At [12] of the decision record, the applicant was born on the first of January 1983 in Pabbo, Amuru, and is a thirty five (35) year old male citizen of Uganda of the Christian faith from the Luo ethnic group from Acholi. The applicant claims a protection in the Commonwealth of Australia (Australia) on the grounds that he faces a real risk of harm due to his religion, ethnicity, political opinion, membership of a social group under the refugee criterion and under the complementary criterion, including death, torture, cruel, inhuman and degrading treatment because:

i)    The applicant fears the family of “Asha”, who are Muslim, will subject him to an “honour killing” for impregnating their daughter, who passed away from an abortion and for violating Sharia law;

ii)    The applicant was abducted and recruited into the Lord’s Resistance Army (LRA) from October 2011 until January 2002 and he fears he will be forcibly kidnapped and recruited by the LRA or killed if he resists, if he is returned to Amaroo, Uganda.

iii)    The applicant has no parents or family remaining in Uganda and he will not be able to subsist psychologically, socially or economically.

iv)    The applicant cannot relocate within Uganda because Asha’s family and/or the LRA will find him and kill or torture him, and he does not have the familial, social or economic connections or support to relocate in any other part of Uganda.

v)    The applicant is separated from his wife but has a daughter aged two in Australia and he will not be able to see her if he is refouled to Uganda. See generally [7]-[9] for a detailed exegesis of the claims by the applicant.

The application for an extension of time

b)    The applicant had thirty five days to file a judicial review application from the date of the decision record of 9 August 20 17, on or before 13 September 2017. The application was filed on 12 December 2017 and is therefore out of time by 90 days.

c)    According to the unchallenged affidavit of the applicant, affirmed on 12 December 2017, the reason why the application was late is that the applicant was unaware that he had thirty five days to file the application for judicial review. The applicant made an application for ministerial intervention with the assistance of the Red Cross. The applicant was not advised by the Red Cross that the time for filing an application for judicial review does not stop whilst applying for Ministerial intervention.

The finding by the primary judge

d)    The finding by the primary judge erred at [83] of the judgment by finding that the “application for an extension of time... should be refused”, given the “substantial application fails” and that “a sufficient reason has not been advance for the delay in filing”.

83.    Given that I have found that the substantial application fails and that I am not convinced that a sufficient reason has been given for the delay in filing, I have come to the conclusion that the application for extension of time in which to file the application should be refused.

e)    In the circumstances, the applicant provided a reasonable explanation as to why the application was late and contends the following grounds enjoyed “sufficient merit” to warrant an extension of time.

Ground 2: The non-disclosure of information under section 438 of the Migration Act 1958 (Cth)

2.    With regard to ground one of the proposed further amended application, filed in Court on 16 August 2018, the applicant relied upon the authority of SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055 with regard to the section 438 certificate and contended that the “current state of the law” was binding on the Federal Circuit Court of Australia. The primary judge erred at [52] by finding that “there was no such [section 438] certificate” and that “paragraph 56” of the decision record by the Tribunal was “inserted by error” and as such “there was no need for the [primary judge’ to consider those principles.” To the contrary, the certificate issued under section 438(2)(a) of the Migration Act 1958 (Cth with regard to folios 46 to 50 and 78, was invalid and was therefore not a process according to law. As a consequence, the non-disclosure of certain information under section 438(l)(a) of the Migration Act 1958 (Cth) constituted a denial of procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth).

Particulars

The affidavit by the delegate, affirmed 26 June 2018

a)    With regard to the affidavit by Nader Yeganeh, affirmed 26 June 2018, the deponent is a Protection Assessment Officer employed by the Department of Home Affairs who holds a delegation from the Minister for Home Affairs, to make decisions under s 65 of the Migration Act 1958 (Cth) in relation to protection visas. On 19 January 2015, the deponent conducted a protection visa interview with the applicant in these proceedings. On 24 July 2015, the deponent refused the applicant a protection visa. Following this, the deponent completed a “Disclosure Decision Checklist.” This is an administrative checklist which is placed in the front of the Departmental file. It was routine procedure at that time to complete the checklist after making a decision on a Protection visa application. Attached and marked “NY-1” is a copy of the “Disclosure Decision Checklist” placed on the Departmental file in relation to this applicant. The deponent reviewed the “Disclosure Decision Checklist” marked as “NY-1”. In response to the question “Are there any s 438(l)(a) related documents/information on the file/papers?”, the deponent circled “No”. In response to the question “Are there any s 438(1)(b) related documents/information on the file/paper?”, the deponent circled “No”. 6. However, in response to the question “Is a relevant certificate of nondisclosure attached?”, the deponent circled “Yes”. The deponent claims this “particular” response was in error. The deponent claims that the deponent did not, at any time, issue a nondisclosure certificate pursuant to ss 438(l)(a) or 438(l)(b) of the Act. In these circumstances, the Administrative Appeals Tribunal will usually contact the Department to check whether a non-disclosure certificate has been issued. The deponent was “unable to ascertain whether the Tribunal contacted the Department to confirm whether a non-disclosure certificate was issued in this matter.” The deponent then states that the deponent read the decision of the Administrative Appeals Tribunal (Tribunal) dated 9 August 2017. At [56] of the Tribunal’s decision, the Tribunal Member refers to the Department having issued a certificate under s 438 of the Act, certifying that the disclosure of information in folios 46 to 50 and folio 78 of the Department file would be contrary to the public interest, because those folios contained information relating to “an internal working document and business affairs”. The deponent states that the deponent did not issue, nor cause to be issued, a certificate under section 438 of the Act in this matter. Further, the deponent claims that the deponent reviewed the Department file and no such certificate exists.

The Tribunal’s handling of the section 438 certificate

b)    At [56] of the decision record, the Tribunal observed the following.

56.    The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information in folios 46 to 50 and folio 78 of the Department file would be contrary to the public interest, because these folios contain information relating to “an internal working document and business affairs”. The Federal Court decision of MZAFZ v MIBP [2016] FCA 1081, Beach J, VID 461 of 2016, considered a s.438 certificate with similar wording. In light of this decision, the Tribunal finds that the certificate is not valid, as it does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal disclosed the information, and further notes that, in any event, the information in these folios is not relevant to this decision, as it is information relevant to his detention (such as names and addresses, and details of finances and property) and is not of probative value to this review. The Tribunal has not taken account of information in these folios.

52.    The principles espoused in SZMTA (Supra) are appropriate when one is dealing with a matter involving a s.438 certificate. I have found that there was no such certificate in this case, and that paragraph 56 has been inserted in the reasons by error, there is no need for me to consider those principles.

Jurisdictional Error 1:- denial of procedural fairness

c)    First, if the Tribunal proceeded on the basis that the certificate under section 438 of the Migration Act 1958 (Cth) was valid, it is entirely unclear how the Tribunal considered the potential operation of s 438(3) or whether it considered s 438(3) at all. As such, there was been a denial of procedural fairness and accordingly a jurisdictional error is established.

Jurisdictional Error 2: Invalidity - the form of the section 438 of the Migration Act 1958 (Cth) was invalid

d)    Second, the section 438 certificate did not relate to a matter permitted under section 438(1) of the Migration Act 1958 (Cth), with the result that it was invalid. For the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted jurisdictional error.

Jurisdictional Error 3: Practical injustice- the section 438 documents

e)    Third, the non-disclosure of the relevant documents at [56], give rise to a practical injustice. Despite the affidavit by the delegate, the applicant contends that according to the Tribunal member at [56], there was a certificate, there were documents relating to the applicant’s detention, he was not privy to those documents and was unable to present evidence and arguments in relation to those documents, giving rise to a practical injustice.

The findings by the Federal Circuit Court of Australia

f)    From [43] to [44] of the judgment, the primary judge observed the applicant’s contention based on SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055”. At [43], the primary judge observed that the ‘argument of the applicant is that there must have been a certificate or the Tribunal would not have mentioned that such a certificate had been issued.” At [44], the primary judge observed that the “argument goes further because the “Tribunal said in the last sentence of paragraph 56 that it had not taken account the information in folios 46 to 50 and 78 and as a consequence, this meant that the Tribunal has not taken into account the application, the statutory declaration and the protection visa decision record.

43.    The argument of the Applicant is that there must have been a certificate or the Tribunal would not have mentioned that such a certificate had been issued. Such a certificate has not been disclosed in the court book and, therefore, the Applicant claims that there has been non-disclosure which is a denial of procedural fairness and constitutes a jurisdictional error.

44.    The argument goes further because folios 46 to 50 and 78 have been identified. The Tribunal said in the last sentence of paragraph 56 that it had not taken account of information in these folios. This would mean that the Tribunal has not taken into account the application, the statutory declaration and the protection Visa decision record. It is mandatory for the Tribunal to take those matters into account and, if it did not take those matters into account, there would be a jurisdictional error.

g)    The primary judge erred at [49] by finding that “paragraph 56 has been included in the reasons of the Tribunal by error” and “it should properly be ignored.”

49.    It seems to me that the only rational conclusion that I could come to, given the state of all of the evidence before me, is that paragraph 56 has been included in the reasons of the Tribunal by error. It should properly be ignored.

h)    The primary judge observed from [50]-[51] that the applicant “relied upon an authority of SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055” and contended that the “current state of the law” was binding on the Federal Circuit Court of Australia.

50.    The applicant relied upon an authority of SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055. Originally, the Applicant asked for an adjournment because this decision was to be the subject of an appeal to the High Court and special leave had already been given.

51.    Given all of the circumstances of this matter, it was better to proceed with the argument and for me to accept that what is stated in SZMTA (Supra) is the current state of the law and binding upon me. Because the hearing proceeded upon that premise, the application for adjournment was not pressed.

i)    The primary judge erred at [52] by finding that “there was no such certificate” and that “paragraph 56” was “inserted by error” and as such “there was no need for the [primary judge’ to consider those principles.”

52.    The principles espoused in SZMTA (Supra) are appropriate when one is dealing with a matter involving a s.438 certificate. I have found that there was no such certificate in this case, and that paragraph 56 has been inserted in the reasons by error, there is no need for me to consider those principles.

Ground 3: The Tribunal misapplied the relevant law with regard to the real risk of harm from the family of “Asha”

3.    With regard to ground two of the proposed further amended application, filed in Court on 16 August 2018, the primary judge erred at [60] of the judgment by finding that “[a]s this was a finding that was open on the evidence it cannot be said that there was “an insufficient logical basis” for the finding” and “[ a]s it is a finding of “non-satisfaction”, there does not need to be an evidentiary basis for that finding.” To the contrary, there was in an insufficient logical or evidentiary basis for the Tribunal to find from [26] to [27] of the decision record that the applicant does not face a real risk of serious harm under the refugee convention or a real risk of significant harm under the complementary criterion from [46]-[49], from the family of “Asha”. The Tribunal therefore misapplied, misunderstood or misconceived the relevant law at [26] to [27] of the decision record by finding that the essential and significant motivation for the persecution feared is revenge for Asha’s death, and not his religion.

Particulars

The applicant’s claims visa re the family of Asha

a)    It was an expressed and essential claim of the applicant at [7], bullet point ten (10) and at [9] from bullet point thirteen (13) to twenty one (21), that the family of Asha wished to inflict an “honour killing” on the applicant because he was Christian, he had impregnated their daughter and she had died during an abortion.

b)    In particular, the applicant claimed at [9] bullet point eighteen (18) that he could not stay with Asha because her family would not approve of their relationship because they had conceived out of matrimony and the applicant was Christian and not a Muslim.

•    She became pregnant. She came and told him, and was upset. She wanted to abort the baby. She told him this before telling him she was a Muslim. A week later she told him that she was a Muslim. He had been saying to her they would care for the baby and stay together. She then said that she could not do that, as she had conceived out of matrimony and because he was not Muslim, and because of her age, her father could kill her. She then told him that she was Muslim. He asked her if they could stay together and get her parents to accept him. He said that he would respect her beliefs. She said they could not do this. She told him to be careful.

c)    Further, it was an expressed and essential part of the applicant’s claimed at [26] that the reason why the family of “Asha”, who are Mulism, wished to harm him was partly for his religion, and partly because of Asha’s death.

The Tribunal’s findings

d)    At [20], the Tribunal found that “after the applicant’s release, he lived in an IDP camp, where his girlfriend, Asha, whom he did not know was a Muslim, became pregnant, and later died.”

e)    At [21], the Tribunal found that “Asha’ s family blamed the applicant for her death, and abducted him for a short time, with the possible intention of killing him, but that he escaped and lived in a mission in a different town three hours away.”

Jurisdiction error

f)    The Tribunal therefore erred at [26] of the decision record by finding the essential and significant motivation for the persecution feared is revenge for Asha’s death, and not his religion. To the contrary, they were both interconnected factors giving rise to the need for protection.

26.    The persecution which the applicant fears from his girlfriend’s family is persecution based on revenge, and not for one of the reasons enumerated in the Convention, race, religion, nationality, membership of a particular social group or political opinion. The applicant has submitted that the reason they wished to harm him was partly for his religion, and partly because of Asha’s death. The Tribunal is satisfied that the fact that the applicant was Christian may have exacerbated the hostility that Asha’s family felt and still feel, towards the applicant. However, the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(l)(a) of the Act. This is not the case here, the essential and significant motivation for the persecution feared is revenge for Asha’s death, and not his religion.

g)    The Tribunal therefore erred by finding at [27] of the decision record by finding that the applicant did not have a well-founded fear of persecution from Asha’s family for a Convention reason were he to return to Uganda in the reasonably foreseeable future.

27.    The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution from Asha’s family for a Convention reason were he to return to Uganda in the reasonably foreseeable future.

The findings by the Federal Circuit Court of Australia

h)    The primary judge erred at [60] of the judgment by finding that “[a]s this was a finding that was open on the evidence it cannot be said that there was “an insufficient logical basis” for the finding” and “[a]s it is a finding of “non-satisfaction”, there does not need to be an evidentiary basis for that finding.”

Ground 4: The real chance of persecution from the LRA

4.    With regard to ground three of the proposed further amended application, filed in Court on 16 August 2018, the primary judge observed at (64] that the “[a]pplicant was arguing a totally new ground .... that the applicant would be recognised as a former LRA soldier and would be harmed by persons in the general population seeking revenge for the atrocities committed by the LRA. The primary judge erred at [65] by finding “[t]his was not a claim that was actually ever made by the applicant and certainly it was one that was not considered by the Tribunal” and as consequence at [66], that “[t]his new claimed does not fit into any of those categories” and [b]ecause of that, this Court cannot consider such a ground.” To the contrary, there was in an insufficient logical or evidentiary basis for the Tribunal to find at [33] of the decision record that the applicant does not face a real risk of serious harm under the refugee convention or a real risk of significant harm under the complementary criterion from [43]-[45] from the LRA if the applicant was to return to his home area in the reasonably foreseeable future. The Tribunal therefore misapplied, misunderstood or misconceived the real chance test under the refugee and complementary criterion at [33] and [45] of the decision record.

Particulars

The Tribunal’s findings

a)    At [16], the “Tribunal found the applicant to be a credible witness. His account of being forced to be an LRA child soldier, and the incidents which took place in the IDP camp, were told in a straightforward and spontaneous manner, and with the kind of detail and layers of information often commensurate with telling the truth.”

b)    At [17], the Tribunal found that the “information the applicant has provided about his personal experiences collates with information from independent country sources about LRA activity and recruitment in his region at the time.”

Jurisdictional error

c)    The Tribunal therefore erred a [33] by finding there is not a real chance of persecution from the LRA were the applicant to return to his home area in the reasonably foreseeable future.

33.    The applicant agreed that independent country sources indicate that there is no current threat from the LRA, but he said there are still some underground killings, and the LRA are in neighbouring countries. It is true that the LRA are in neighbouring countries, and there may be some underground killings, but the evidence suggests that the LRA are significantly weakened with little activity in Uganda. Given this information, which indicates little LRA presence in the region, the Tribunal is not satisfied that there is a real chance of persecution from the LRA were the applicant to return to his home area in the reasonably foreseeable future.

The findings by the Federal Circuit Court of Australia

d)    The primary judge observed at [64] that the “[a]pplicant was arguing a totally new ground.... that the applicant would be recognised as a former LRA soldier and would be harmed by persons in the general population seeking revenge for the atrocities committed by the LRA.

64.    As the argument proceeded before me, it seems to me that Counsel for the Applicant was arguing a totally new ground. This ground was that the Applicant would be recognised as a former LRA soldier and would be harmed by persons in the general population seeking revenge for the atrocities committed by the LRA.

e)    The primary judge erred at [65] by finding “[t]his was not a claim that was actually ever made by the Applicant and certainly it was one that was not considered by the Tribunal” and as consequence at [66], that “[t]his new claimed does not fit into any of those categories” and [b]ecause of that, this Court cannot consider such a ground.”

65.    This was not a claim that was actually ever made by the Applicant and certainly it was one that was not considered by the Tribunal. It is trite to say that the Tribunal need only deal with claims that are actually made or that arise naturally from the factual circumstances of the application.

66.    This new claimed does not fit into any of those categories. Because of that, this Court cannot consider such a ground.

Ground 5: The real chance of persecution for psychological, social, economic or political factors

5.    With regard to ground four of the proposed further amended application, filed in Court on 16 August 2018, the primary judge erred at [70] by finding “[f]rom a convention standpoint, there was simply no evidence that the Applicant would be persecuted for any of those reasons. Paragraphs 34 to 38 of the reasons of the Tribunal illustrate a logical conclusion that was open to the Tribunal. Similarly the primary judge erred at [71] by finding “ [a]t paragraphs 50 to 54, a similar exercise was undertaken with respect to the complementary protection standpoint. There is nothing that has been shown to the court that would indicate that the conclusions reached were not open to the Tribunal.” To the contrary, there was an insufficient logical or evidentiary basis for the Tribunal to find at [38] of the decision record that the applicant does not face a real risk of serious harm under the refugee convention or significant harm under the complementary criterion from [54] on the grounds that the applicant faces a real risk of harm due to psychological, social, economic or political factors, or that the applicant would be able to subsist or that he would not be subjected to persecution, involving systematic and discriminatory conduct by state or non-state agents, after accepting he was a former child soldier for the LRA and he has no family in Uganda. The Tribunal therefore misapplied, misunderstood or misconceived the real chance test under the refugee criterion from [38] and under the complementary criterion at [54] of the decision record by finding that the serious harm test does exclude serious mental harm.

Particulars

The Tribunal’s findings

a)    At [34], the Tribunal observed that the “applicant has claimed that he fears, because he has no parents, that it would be difficult for him to live in Uganda, emotionally and financially. Northern Uganda is not stable and there could be war.”

b)    At [35], the Tribunal acknowledged that “having been forcibly recruited as a child into the LRA, the applicant may find it difficult emotionally living in Uganda. However the refugee criteria require that there be a well-founded fear of persecution for a Convention reason. His own emotional concerns do not amount to persecution by another party.”

c)    At [36], the Tribunal also accepts that without family support the applicant may have financial difficulties. However there is no evidence to indicate that he would not be able to subsist, or that services would be denied to him. There is no evidence to indicate that a state agent or non-state party would persecute him, involving systematic and discriminatory conduct.

Jurisdictional error

d)    The Tribunal therefore erred at [38] by finding the “Tribunal is not satisfied that the applicant has a well-founded fear of persecution were he to return to Uganda in the reasonably foreseeable future based on emotional or financial factors or the general security situation.

e)    The Tribunal therefore erred at [54] by finding there is not a “real risk of significant harm on the basis of emotional or financial factors or the general security situation were the applicant to be removed from Australia to Uganda.”

The findings by the Federal Circuit Court of Australia

f)    The primary judge erred at [70] by finding “[f]rom a convention standpoint, there was simply no evidence that the Applicant would be persecuted for any of those reasons. Paragraphs 34 to 38 of the reasons of the Tribunal illustrate a logical conclusion that was open to the Tribunal. Similarly the primary judge erred at [71] by finding “[a]t paragraphs 50 to 54, a similar exercise was undertaken with respect to the complementary protection standpoint. There is nothing that has been shown to the court that would indicate that the conclusions reached were not open to the Tribunal.”

70.    From a convention standpoint, there was simply no evidence that the Applicant would be persecuted for any of those reasons. Paragraphs 34 to 38 of the reasons of the Tribunal illustrate a logical conclusion that was open to the Tribunal.

71.    At paragraphs 50 to 54, a similar exercise was undertaken with respect to the complementary protection standpoint. There is nothing that has been shown to the court that would indicate that the conclusions reached were not open to the Tribunal. This ground also fails.

Ground 6: The referral for Ministerial intervention

6.    With regard to ground five of the proposed further amended application, filed in Court on 16 August 2018, the primary judge erred at [78] by finding the statement by the Tribunal at [58] that there may be a significant threat to the human rights or human dignity of the applicant if he returns to Uganda but that such mistreatment would not meet the criteria for the grant of any type of protection visa” was “totally superfluous to the reasoning of applicant if he returns to Uganda but that such mistreatment would not meet the criteria for the grant of any type of protection visa” was “totally superfluous to the reasoning of the Tribunal in coming to the conclusion that the decision of the delegate be affirmed” and “[i]t is not in any way material to the decision made by the Tribunal and, therefore, could not form any basis to find jurisdictional error.” To the contrary, there was in an insufficient logical or evidentiary basis for the Tribunal to find at [58] of the decision record that the “applicant’s particular circumstances which provide a sound basis for believing that there is a significant threat to his human rights or human dignity if he returns to Uganda” but the “mistreatment does not meet the criteria for the grant of any type of protection visa.”

Particulars

The Tribunal’s findings

a)    At [58], the Tribunal found that the “applicant’s particular circumstances which provide a sound basis for believing that there is a significant threat to his human rights or human dignity if he returns to Uganda” there was an insufficient logical or evidentiary basis for the Tribunal to find the “mistreatment does not meet the criteria for the grant of any type of protection visa.”

58.    The Minister has issued guidelines explaining the circumstances in which he may Exercise his public interest powers. The Tribunal notes from the Ministerial guidelines that the Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more unique or exceptional circumstances. Having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417(1 ), set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention as there are unique or exceptional circumstances. This is because of the applicant’s particular circumstances which provide a sound basis for believing that there is a significant threat to his human rights or human dignity if he returns to Uganda, but the mistreatment does not meet the criteria for the grant of any type of protection visa.

b)    At [59] of the decision record, the Tribunal made a series of findings giving rise to serious or significant harm.

60.    The applicant has experienced extreme trauma in Uganda. At the age of 12 he was abducted by the Lord’s Resistance Army and forced to work for them for 3 months, with very little food or water. During this time he was harshly treated, and had to carry heavy loads and do other tasks. He witnessed beatings and killings. His experience of being forcibly recruited as a child is supported by independent country sources which indicate that children of his age were targeted by the LRA at the time. After three months he was left in the jungle with other children, and was lost for a week. When they found the nearest town, he discovered that the Lord’s Resistance Army had invaded his village, and both his parents and four siblings were missing. He never saw them again. He lived in an Internally Displaced Persons Camp for four years. He was then abducted by the family of a girl who were angry that he had made her pregnant. She died after trying to abort the baby and the family blamed the applicant. His sister and brother died in mysterious circumstances and he suspects this girl’s family was involved. He fled to a mission where he lived until he made arrangements to come to Australia on a spouse visa. Given these traumatic circumstances, particularly his forcible abduction by the Lord’s Resistance Army, and the tragedies of losing family members, he is likely to experience further trauma if returned Uganda. There have been many commentaries on the extensive trauma suffered by LRA child abductees

c)    At [60], the Tribunal considered this may be an appropriate matter for the Minister to consider pursuant to s417(1) of the Act.

60.    On the basis of this information, this may be an appropriate matter for the Minister to consider pursuant to s417(1) of the Act. The applicant may wish to request Ministerial Intervention himself, and in doing so to provide any additional material that may be considered relevant to his circumstances to the Minister.

The findings by the Federal Circuit Court of Australia

d)    The primary judge erred at [78] by finding the statement by the Tribunal at [58] that there may be a significant threat to the human rights or human dignity of the applicant if he returns to Uganda but that such mistreatment would not meet the criteria for the grant of any type of protection visa” was “totally superfluous to the reasoning of the Tribunal in coming to the conclusion that the decision of the delegate be affirmed.”

75.    The Applicant contends that it is illogical for the Tribunal to be satisfied that there may be a significant threat to the human rights or human dignity of the Applicant if he returns to Uganda but that such mistreatment would not meet the criteria for the grant of any type of protection Visa.

78.    However, this statement is totally superfluous to the reasoning of the Tribunal in coming to the conclusion that the decision of the delegate be affirmed. It is not in any way material to the decision made by the Tribunal and, therefore, could not form any basis to find jurisdictional error.

(Errors in original.)

35    The applicant applies for the following relief:

1.    Relief in the form of a Writ of Certiorari, bringing the orders by the Federal Circuit Court of Australia, made on 13 August 2018, into this Court to be quashed.

2.    Relief in the form of a Writ of Certiorari, bringing the decision by the Tribunal made on 9 August 2017, into this Court to be quashed.

3.    Relief in the form of a Writ of Mandamus, directing the Tribunal, differently constituted, to re-determine the decision made on 9 August 2017, according to law.

4.    Relief in the form of a Writ of Prohibition, restraining the Minister, or the Minister’s employees, officers, delegates or agents of the first respondent, from acting upon or giving effect to the decision by the Tribunal, made 9 August 2017.

5.    Relief in the form of an Order for Costs, directing the Minister to pay the appellant’s costs:

(a)    fixed in the amount of $7,328 as per schedule 1 of the Federal Circuit Court Rules 2001 (Cth) for the proceeding before the Federal Circuit of Australia;

(b)    as agreed or assessed for the proceeding before the Federal Court of Australia.

    (Emphasis removed.)

Consideration

36    Although the primary Judge gave thorough consideration to the merits of the proposed grounds of review before him, ultimately the decision of his Honour was to refuse to grant an extension of time in which the applicant could file his application. Any appeal of this decision is precluded by s 476A(3) of the Act. On 10 September 2018 the applicant applied under s 39B of the Judiciary Act 1903 (Cth) for relief: see for example Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [10]-[11] and DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 at [37]-[42].

37    The applicant requires an order by way of certiorari to quash the decision of the primary Judge before further relief can be available. The basis for the jurisdiction of the Court to issue a writ of certiorari was discussed by the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 and the Full Court of this Court in DMI16.

38    In Hossain Kiefel CJ, Gageler and Keane JJ said:

[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. A decision made outside jurisdiction is not necessarily to be regarded as a “nullity”, in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as “no decision at all”. To that extent, in traditional parlance, the decision is “invalid” or “void”.

[25]     To return to the explanation of Professor Jaffe, jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error. In the language of Selway J, the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately “a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised”.

[26]    Although ultimately correct in the result, the majority in the Full Court was therefore wrong to distinguish between a decision involving jurisdictional error and a decision wanting in authority. They are one and the same.

39    Edelman J relevantly observed:

[61]    Where the unlawfulness of a decision made under statute arises from an error by the statutory decision maker, there are two overlapping categories of error that can lead to a writ of certiorari. The first category comprises errors that have the consequence that the decision maker had no authority to make the decision. The second comprises errors that appear on the face of the record, irrespective of whether the decision maker had authority to make the decision. The categories overlap because an error in the second category could mean that the decision itself was unlawful and without authority. But an error might also fall within the second category if a step in the process by which the decision was reached was unlawful, even where the decision was made with authority.

[62]    The first category of error, which results in a lack of authority for the decision, is sometimes described as having the consequence that the decision was beyond power. Its consequence has been said, in terms that create difficulty, to be that the decision is a nullity or void. Nevertheless, it is established that the effect of an error of that type is that the “decision … lacks legal foundation and is properly regarded, in law, as no decision at all”... In contrast, if an error of law on the face of the record does not deprive the decision maker of authority, then the decision will have legal foundation. In a passage described by Wade as “the one usage which is based on an intelligible distinction”, Dr Rubinstein attempted to illustrate the difference in consequences between (i) an error that has the effect that a decision was made without authority, and (ii) other errors of law on the face of the record, by using the contrasting labels of a “void” and a “voidable” decision. Those labels have been deprecated but they have the benefit of highlighting the contrast between a decision that has no legal foundation, and one that is unlawfully made although it has a lawful foundation until set aside.

[63]    The essential difference of principle in Australian law is not between the overlapping categories of decisions made without authority and all decisions that involve errors of law on the face of the record. Instead, the distinction of principle is between errors characterised as jurisdictional errors and errors characterised as non-jurisdictional errors of law on the face of the record.

[64]    There are some different consequences that arise from errors that deprive a decision maker of authority compared with errors that do not. The most significant of these is the constraint upon State legislative power to exclude review of jurisdictional errors. However, there are significant commonalities between the unlawfulness involved in jurisdictional errors and non- jurisdictional errors of law on the face of the record. Where the decision maker is exercising statutory power the legal requirements from which both errors are established arise by construction of the statute. That exercise of construction is not dependent solely on the literal text. Rather, the statute is construed in light of the background principles and history of judicial review, as well as common law principles, including the principle that the consequences of an error that a legislature will be taken to intend will usually depend on the gravity of the error. If an error of either type has been committed, an order in the nature of certiorari operates “to remove the legal consequences [in cases of non-jurisdictional error of law on the face of the record], or purported legal consequences [in cases of jurisdictional error], of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights”.

[65]    In England, where a distinction between jurisdictional error and non-jurisdictional error has been reduced almost to vanishing point, one focus has become whether the error is “material”. However, ultimately, “[b]oth tribunals and the courts are there to do Parliament’s bidding”. Likewise, in Australia, the requirement of materiality is a common restriction upon the issue of a writ of certiorari for both types of error. In cases of decision makers acting under statute, it will usually be implied from the statute that any error of law on the face of the record does not render a decision liable to be set aside unless, as a pre-condition, the error was material in the sense that it “affected” the decision. The related nature of the two categories means that it would be curious if there were a usual implication of materiality for non-jurisdictional errors of law on the face of the record but no such usual implication for jurisdictional errors. However, on this appeal, it is unnecessary to explore the operation of a requirement of material error in the context of a non-jurisdictional error of law on the face of the record. The decision of the Tribunal, being one that fell within s 474(3)(b) of the Migration Act 1958 (Cth), was a “privative clause decision”, which has the effect that a writ of certiorari from the Federal Circuit Court was available only for jurisdictional error. The essential question on this appeal is whether a non-material error by the decision maker was a jurisdictional error.

40    Further, in DMI16 the Full Court observed, inter alia:

    the jurisdiction of an inferior court to decide matters is broader than that of an administrative decision-maker (at 39]), and it follows that the circumstances in which an inferior Court will fall into jurisdictional error are narrower than in the case of a decision-maker exercising executive power (at [40]);

    demonstrable mistake in the identification of issues or the formulation of questions will commonly involve error of law which may be appealed if an appeal is available, however such a mistake will not ordinarily constitute jurisdictional error (at [39], see also Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179-180);

    while an error may be jurisdictional when committed by an administrative decision-maker, the same error committed in a judicial context may be an error within jurisdiction (at [41]);

    certiorari will lie for a non-jurisdictional error of law on the face of the record (at [42]), see also Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [78]-[90]), however unlike the decision of an administrative decision-maker the Federal Circuit Court’s reasons do not comprise part of the record (at [43], SZTSU v Federal Circuit Court of Australia [2015] FCAFC 129 at [16], Kirk, Craig)

41    In DMI16 the Full Court found that the primary Judge was confined to considering only the orders made by the Federal Circuit Court in determining whether certiorari lay for a non-jurisdictional error of law on the face of the record of the Federal Circuit Court (at [48]).

42    In this case, I am not persuaded that the decision of the primary Judge was affected by jurisdictional error, error on the face of the record warranting an order of certiorari, or indeed any error at all. I have formed this view for the following reasons.

43    First, the applicant has not explained the existence of an error or errors on the face of “the record”, in respect of his complaints concerning the reasons of the primary Judge. Unlike the reasons of the Tribunal, his Honour’s reasons do not comprise “the record” for the purposes of the applicant’s claim of certiorari: see Craig at 181-182 and Kirk at [82]-[83]. As the High Court observed in Kirk:

82.    Whether the particular conclusion reached in Nat Bell Liquors was right is not now important. What is, is that the decision was understood as requiring confinement of the record of an inferior court to the initiating process (including any pleadings) and the certified order.

83.    Whether, or when, the reasons given for a decision formed a part of the record remained controversial. As Gibbs J noted in R v Cook; Ex parte Twigg the question had been treated in this Court as an open question. However, thereafter in Public Service Board of NSW v Osmond, Gibbs CJ referred to the "well established" rule that reasons do not form part of the record for the purposes of certiorari unless the tribunal giving them chooses to incorporate its reasons. But in at least some cases the failure to give reasons may constitute a failure to exercise jurisdiction.

84.    In Craig, the Court rejected a more expansive approach to certiorari which would include both the reasons for decision and the complete transcript of proceedings in the "modern record" of an inferior court. To accept that more expansive approach was seen as going "a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error". Because this would represent "a significant increase in the financial hazards to which those involved in even minor litigation in this country are already exposed" it was held to be a step best left to legislation.

(Footnotes omitted.)

44    At the hearing before me, Counsel for the applicant contended that the reasons for decision of the primary Judge were incorporated into the record by his Honour’s reasons referring to the orders. In light of such authorities as Kirk, Craig and DMI16, this submission cannot be substantiated. The fact that the reasons of the primary Judge stated the orders to be made, does not mean that the “record” incorporates those reasons.

45    Second, the applicant claims jurisdictional error of the primary Judge as the basis of his claim, but does not particularise those claims. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] (upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969).

46    Third, in ground 1 the applicant claims jurisdictional error and/or error on the face of the record at [83] of the primary judgment because his Honour found that it was not in the interests of justice to grant the applicant an extension of time pursuant to s 477(2)(b) of the Migration Act. At [83] his Honour said:

Given that I have found that the substantial application fails and that I am not convinced that a sufficient reason has been given for the delay in filing, I have come to the conclusion that the application for extension of time in which to file the application should be refused.

47    The applicant at ground 1(e) claimed that “the applicant provided a reasonable explanation as to why the application was late and contends the following grounds enjoyed ‘sufficient merit’ to warrant an extension of time”.

48    However:

    A decision of a Judge to grant or refuse an extension of time in which to file proceedings involves the exercise of discretion by that Judge: BVG17 v BVH17 [2019] FCAFC 17 at [134].

    Principles relevant to the exercise of discretion to extend time are well-known (BVG17 at [134], Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349), and include satisfaction by the Judge as to whether the applicant has shown an acceptable explanation for the delay, that it is fair and equitable in the circumstances to extend time, and whether the merits of the substantive appeal warrant the extension of time.

    The primary Judge properly identified relevant factors to guide the exercise of his discretion in this case.

    At [80]-[83] his Honour gave reasons why he was not persuaded that the applicant had given a satisfactory explanation for the delay in filing.

    The claim by the applicant that there was, in fact, a reasonable explanation for the delay merely cavils with the view taken by the primary Judge that there was not. The fact that the applicant disagrees with his Honour’s finding in this respect does not establish jurisdictional error (or, indeed, any error) on the part of the primary Judge.

    The claim by the applicant that the grounds before the primary Judge, replicated as grounds 2-6 in this application, enjoyed “sufficient merit” to warrant an extension of time again merely cavils with the view taken by the primary Judge that these grounds lacked merit. Again, the fact that the applicant disagrees with his Honour’s findings as to the merits of the grounds before him does not establish jurisdictional error (or, indeed, any error) on the part of the primary Judge.

49    Fourth, and following on from the last point, it is clear that the primary Judge gave detailed consideration to the applicant’s complaints concerning the Tribunal hearing. To the extent that the applicant refers to jurisdictional error in grounds 2-5 of the application, I note that the applicant points to errors of the Tribunal as jurisdictional errors, rather than errors of the primary Judge. So:

(a)    In respect of ground 2, the applicant refers to three alleged jurisdictional errors on the part of the Tribunal (ground 2(c), (d) and (e)) and then takes issue with the primary Judges findings in relation to the s 438 certificate at ground 2(f), (g), (h) and (i) without identifying such findings on the part of his Honour as jurisdictional errors;

(b)    In respect of ground 3, the applicant refers to an alleged jurisdictional error on the part of the Tribunal (ground 3(f) and (g)), and then takes issue with the finding of the primary Judge that the relevant finding of the Tribunal was open (ground 3(h)) without identifying this finding as a jurisdictional error on the part of his Honour;

(c)    In respect of ground 4, the applicant refers to an alleged jurisdictional error on the part of the Tribunal (ground 4(c)), and then at ground 4(e) states that the primary Judge erred at [65] of his reasons, without identifying how this was a jurisdictional error;

(d)    In respect of ground 5, the applicant refers to alleged jurisdictional errors by the tribunal at grounds 5(d) and (e), and then takes issue with the findings of the primary Judge (ground 5(f)) without identifying how these findings gave rise to a jurisdictional error.

50    It is unclear to me how alleged jurisdictional errors of the Tribunal become jurisdictional errors of the primary Judge, as the applicant appears to contend.

51    Fifth, the gravamen of the applicant’s claims in grounds 2-6 before me is that the primary Judge was wrong in his findings. However:

(a)    In relation to ground 2: the reasoning of his Honour at [35]-[53] was, in my view, logical, thoughtful and open to his Honour. His Honour found that the Tribunal had not, in fact, proceeded on the basis of a s 438 certificate and gave considered reasons for so finding referable to the decision of the Tribunal. This factual finding of the primary Judge concerning the absence of a s 438 certificate before the Tribunal was open to his Honour on the material before the Court. No error – including jurisdictional error – is apparent from his Honour’s findings.

(b)    In relation to ground 3: his Honour found that the Tribunal had concluded, on the evidence before it, that any motivation for the family of “Asha” to harm the applicant was not related to the Refugees Convention, but rather was related to their desire for revenge following her death. This finding was open to the Tribunal, as well as his Honour, and no error – including jurisdictional error – is apparent from his Honour’s findings.

(c)    In relation ground 4: his Honour was satisfied that the Tribunal had rejected the applicant’s LRA claims because, inter alia, country information before the Tribunal indicated that there was no current threat from the LRA in Uganda. His Honour also found that the Tribunal was not obliged to consider any new claim made orally before it which had not previously arisen nor emerged from materials before it. These findings were open to the Tribunal as well as his Honour and no error – including jurisdictional error – is apparent from his Honour’s findings.

(d)    In relation to ground 5: his Honour found that there was no evidence before the Tribunal that the applicant would be persecuted in Uganda for psychological, social, economic or political factors, and that the applicant sought impermissible merits review. The applicant claimed that the Tribunal erred in finding that he would not be subject to such persecution, after accepting that he was a former child soldier for the LRA and had no family in Uganda. His Honour found further that nothing had been shown to the Court that would indicate that the conclusions reached were not open to the Tribunal, including that while the applicant might suffer emotional difficulties if he were to return to Uganda there was no element of persecution involved in such a claim. The applicant claimed that the primary Judge erred in so finding, however does not particularise why this was the case. In my view these findings were open to the Tribunal as well as his Honour, and no error – including jurisdictional error – is apparent from his Honour’s findings.

(e)    In relation to ground 6: the applicant claimed that the decision of the Tribunal was illogical in that it found that his particular circumstances provided a sound basis for believing that there was a significant threat to his human rights or human dignity if he returned to Uganda, but nonetheless found that the did not meet the criteria for the grant of any type of protection visa. The primary Judge noted that the Tribunal was simply stating the basis for which there could be Ministerial intervention, notwithstanding that the applicant did not come within the refugee or complementary protection criteria. His Honour also found that the findings of the Tribunal in this respect were immaterial. In my view these findings were open to his Honour, and no error – including jurisdictional error – is apparent from his Honour’s findings

Conclusion

52    In my view the decision of the primary Judge was not affected by error, and certainly not jurisdictional error or error on the face of the record.

53    The appropriate order is to dismiss the application with costs.

Associate:

Dated:    25 November 2019