FEDERAL COURT OF AUSTRALIA

SZULE v Minister for Immigration and Border Protection [2019] FCA 2136

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellants are to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Appellants in the present proceeding are husband and wife. They are both citizens of Pakistan. The husband (the Second Appellant) arrived in Australia in April 2012 on a student visa. The wife (the First Appellant) arrived in Australia in September 2012 as a dependant spouse of the husband.

2    In October 2012, they applied to the Department of Immigration and Citizenship for protection visas. The wife claimed to fear harm from the Taliban by reason of her involvement in the Muttahida Quami Movement (“MQM”) and the Women’s Wing of the Pakistani Muslim League (“WWPML”). The husband was included in the wife’s application as a member of the family unit.

3    A delegate of the Minister refused those applications in February 2013. An application for review of the delegate’s decision was lodged with the Refugee Review Tribunal (the “Tribunal”) and in May 2014 the Tribunal affirmed the delegate’s decision. That decision of the Tribunal, however, was set aside by the Federal Circuit Court (the “Circuit Court”) in July 2014 and the matter was remitted to the Tribunal for reconsideration. It was then accepted that the Tribunal had contravened s 425 of the Migration Act 1958 (Cth) (“Migration Act”). In September 2014 a differently constituted Tribunal again affirmed the delegate’s decision.

4    A further application for judicial review of the Tribunal’s decision was then filed with the Circuit Court. The jurisdiction being exercised by that Court was that conferred by s 476 of the Migration Act. In December 2017, that Court dismissed the application: SZULE v Minister for Immigration & Border Protection [2017] FCCA 3280.

5    The Appellants now appeal to this Court. The jurisdiction of this Court which the Appellants now invoke is that conferred by s 24 of the Federal Court of Australia Act 1976 (Cth).

6    The proceeding in this Court was commenced in December 2017 and was originally listed for hearing on 31 May 2018. On 24 May 2018, Markovic J made orders including an order adjourning the hearing pending the outcome of (at that time) two matters currently before the High Court. The High Court delivered its judgment in February 2019: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, (2019) 93 ALJR 252. This matter was then listed for hearing on 14 August 2019. On that occasion, the hearing was adjourned part-heard, to allow the Respondent Minister to file further submissions with respect to an issue that had arisen in the course of oral submissions. Although the Appellants were also provided with the opportunity to file further submissions, no such submissions were filed in advance of the hearing. The hearing resumed on 3 October 2019. At that hearing the Appellants provided a short one page note which, in summary form, again asserted error on the part of the Tribunal and disagreement with its findings. The Appellants appeared before the Court unrepresented, albeit with the assistance of an interpreter. The Respondent Minister appeared by Counsel. The Second Respondent filed a submitting notice, save as to costs.

7    The appeal is to be dismissed with costs.

The original Grounds & the Grounds of Appeal

8    The limited role of the Circuit Court in undertaking judicial review of decisions of the Tribunal pursuant to s 476(1) of the Migration Act is to be constantly borne in mind.

9    Section 476(1) provides as follows:

Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

By reason of s 476(1), an applicant seeking judicial review of a decision of the Tribunal by the Circuit Court must bring himself within the jurisdiction conferred by s 75(v) of the Constitution. An applicant seeking judicial review “rooted” in s 75(v), it has been said, must establish jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [7], (2010) 240 CLR 611 at 616 per Gummow A-CJ and Kiefel J (“SZMDS”).

10    The role entrusted to the Circuit Court pursuant to s 476(1) of the Migration Act, and even judicial review for error falling short of jurisdictional error, does not permit a “general review” of an administrative decision, including a decision of the Tribunal: cf. Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50, (2015) 258 CLR 173 (“Plaintiff M64/2015”). French CJ, Bell, Keane and Gordon JJ there summarised, in relevant part, the position as follows (at 184 to 185):

[23]    It is necessary to make some preliminary observations in relation to the constraints within which the plaintiff's challenge to the validity of the Delegate's decision falls to be determined. These constraints are aspects of the scope of judicial review of administrative action, which is confined to the legality of the Delegate's decision. In particular, judicial review is concerned with whether the Delegate's decision was one which he was authorised to make; it is not:

“an appellate procedure enabling either a general review of the … decision … or a substitution of the … decision which the … court thinks should have been made.”

[24]    First, the burden is upon the plaintiff to demonstrate that the Delegate's decision was affected by jurisdictional error. ….

See also: Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 at 363. Hayne, Kiefel and Bell JJ expressed the same constraint upon judicial review as follows:

[66]    … there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power ...

(footnotes omitted)

11    As a general proposition, factual error on the part of an administrative tribunal does not establish jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [35]-[36], (2001) 75 ALJR 542 at 548-549 per McHugh J. “Ordinarily”, it has been said, “a decision-maker will not make an error of law or a jurisdictional error simply by making a wrong finding of fact”. This is because “the jurisdiction so exercised, is to make findings of fact not to make findings of fact that are necessarily correct”: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [12], (2012) 202 FCR 1 at 6 per Rares J.

12    Before the Circuit Court the Application, as filed in that Court, set forth some 27 purported “Grounds”. None of those purported Grounds, however, clearly identified any identifiable legal error or jurisdictional error. In summary form, these Grounds asserted that the Tribunal erred by reason of (inter alia):

    “jurisdictional error” – albeit with no further identification as to the error sought to be relied upon;

    “error of law which causes it to identify a wrong issue, to ask itself a wrong question…” – albeit with no identification of the error of law or the “wrong question”;

    “Wednesbury unreasonableness, described by Lord Diplock…”;

    a failure “to take into consideration the evidence put forward by the applicant by way of interview…” and a “refus[al] to accept the evidence of the applicant”;

    a failure to make a “fresh [decision] as well as independently”;

    “personal bias” or “misconception and bias”; and

    the “whole judgment” being based upon “conjecture”.

The fundamental difficulty with these purported Grounds was that they made reference to recognisable grounds upon which judicial review may be sought – but they failed to carry through those potential arguments to the facts and reasoning of the Tribunal. A “little knowledge” on the part of the now-Appellants has proved to be “a dangerous thing”.

13    The Circuit Court Judge, perhaps somewhat peremptorily, considered each of the 27 Grounds individually and generally concluded that there had been a repeated failure to “identify any jurisdictional error”. Some of the Grounds, it may be accepted, could be more summarily dismissed than others. A Ground, for example, which simply asserted that the Tribunal “has made jurisdictional error” without identifying the error sought to be relied upon may be more summarily dealt with than a Ground which asserted a failure to take “into consideration the activities of the Taliban…”. And such reasons as were given by the Circuit Court Judge for rejecting the latter argument do not seem, with respect, to be directed to the argument sought to be advanced. Other Grounds may have been poorly expressed, such as a Ground which asserted “many doubts on the findings of the RRT”.

14    But it may have been more prudent for some attempt to have been made by the primary Judge to try to identify the particular “findings” sought to be impugned, even if by reference to the content of other Grounds. Just as this Court has required administrative decision-makers to actually seek to engage with the arguments sought to be advanced by claimants, it is equally important for the Circuit Court (and this Court) to attempt to engage with an argument (even if poorly expressed) and to engage with the unrepresented parties before it with a view to identifying the argument sought to be advanced for resolution: cf. Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34, (2001) 179 ALR 513 at 519. Kirby J there expressed the same concern by reference to the facts then before his Honour as follows:

[13]    The applicant does not have counsel or a solicitor or any other advocate or representative. He has for a long time been detained in immigration detention. He is unable to earn funds to pay for a lawyer of his choice. He does not speak the English language. He claims to be a refugee. In such circumstances it would be an affront to justice for me to sit silent and allow him, unaided, to flounder in the mysteries of our court procedures and substantive law until he had adequately demonstrated an incapacity to present relevant evidence and argument. The judicial power of the Commonwealth does not oblige those who exercise it to engage in a charade of justice. On the other hand, there are limits to what judges can do. I express a sense of disquiet about participating judicially in this Court in such an unequal struggle between an indigent unrepresented litigant, detained in custody, and the government of the Commonwealth, well represented and resourced.

See also: SZQPE v Minister for Immigration and Citizenship [2012] FCA 544 at [21], (2012) 205 FCR 437 at 441 to 442 per Flick J.

15    The repeated dismissal of Grounds by the primary Judge in the present case on the basis that they “fail to make out any jurisdictional error” is more the expression of an unreasoned conclusion rather than an attempt to give content to an argument that may have some merit once properly understood. Such consideration as was given to each Ground nevertheless exposes at least some limited judicial consideration having been given to each of the Grounds seriatim.

16    The Notice of Appeal is equally as unhelpful in identifying the arguments sought to be advanced by the Appellants before this Court with any degree of precision. The Notice of Appeal thus states the following two Grounds of Appeal (without alteration):

1.    On 20 December 2017 His Honour Judge Street dismissed my application and I have not yet received copy of his judgment. I continue to rely on my submission filed in Court on 14 October 2016 and contrary to the Tribunal Member’s comments that I am not credible witness I confirm that I am a credible witness who suffered and who has a real risk that will suffer significant harm in Pakistan.

2.    His Honour as well as the Tribunal misunderstood that my fear of harm is genuine and I will appear before the Federal Court and hope that a higher Judge or Judges will find that His Honour’s Order is affected by error of law.

Those Grounds manifestly fail to identify with any degree of precision the argument now sought to be advanced. The “submission” referred to in Ground 1 was separately tendered by the Respondent Minister. In summary form, that “submission” provides further factual support for the claims sought to be made.

17    The course which has been pursued in the hearing of the appeal, however, is to revisit the arguments sought to be advanced in the Grounds before the Circuit Court and to attempt to construe those Grounds by reference to the Grounds of Appeal presently before this Court. Approached in that manner, it becomes apparent that the Appellants essentially seek to challenge the manner in which the Tribunal:

    reached adverse assessments as to credibility; and

    assessed the genuineness of the fear of harm.

If the manner in which the Grounds of Appeal are to be construed is left to one side, it is prudent to more carefully consider each of these two aspects of the Tribunal’s reasoning process. In so construing the Grounds of Appeal, it must nevertheless be recognised that the onus of establishing error on the part of the Tribunal rests with the now-Appellants: cf. Plaintiff M64/2015 [2015] HCA 50 at [24], (2015) 258 CLR at 185; Minister for Home Affairs v Ogawa [2019] FCAFC 98 at [16] per Reeves J (Collier J agreeing); Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 at [107] per Murphy and Rangiah JJ; CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61 at [31] per Jagot J. And it rests upon the Appellants to establish error on the part of the primary Judge. Care must be taken to ensure that a too-liberal construction is not given to the arguments sought to be raised by unrepresented Appellants such as to deprive a Respondent of procedural fairness.

18    The conclusion which has ultimately been reached is that both Grounds of Appeal are without substance and seek to impermissibly challenge the factual merits of the Tribunal’s decision. That conclusion, however, warrants more detailed attention being given to the findings and reasons of the Tribunal.

A credible witness?

19    Part of the case advanced by the wife was that her father had encouraged her (and her sister) in their education but that problems were encountered when she had to pass through areas where there had been targeted killings. In 2010 the wife maintained that the MQM had contacted her father to offer her employment. The MQM is apparently a Karachi based secular political party which represents the interests of Karachi’s Urdu speaking community. But an examination of the accounts given by the Appellant exposed, in the mind of the Tribunal, difficulties as to the reliability of what it had been told.

20    The Tribunal exposed this part of its misgivings with the account as follows (without alteration):

[21]    The Tribunal does not accept the applicant’s explanation for why her father would approach the office bearers in relation to her employment in the offices of the MQM, a political party, which had been the subject of attacks, even if it was close to her home and had security. The Tribunal does not accept that it is credible that the applicant’s father would consider it too unsafe for the application to continue her studies, yet could consider it appropriate for her to seek employment in the office of a political which was subject to attacks by the ANP. The Tribunal considers that the evidence in relation to this issue raises concerns in relation to the credibility of the applicant’s claims.

[22]    Similarly, the Tribunal considers that the applicant’s claim that it was in May 2011, some three months after her marriage to her husband that she travelled with the WWPML to not be credible and inconsistent with her evidence as to her father’s fear for her safety. Thus, although the applicant claimed that her father would not allow her to attend school and feared for her safety he also purportedly allowed her to travel to Quetta and other parts of Pakistan without her husband or father. The applicant has claimed that this was allowed because she was promised she would have security from the Taliban and travelled in armoured cars. The applicant’s husband also told the previously constituted Tribunal that he allowed his wife to go to Quetta because she had not been allowed to finish her studies and he wanted her to get a good government job.

(footnote omitted)

21    By way of further example as to the misgivings experienced by the Tribunal in accepting the reliability of the wife’s account, reference may be made to its assessment of her claims founded upon her involvement with the WWPLM. In respect to this part of the claim, the Tribunal expressed its views as follows:

[24]    The Tribunal also considers that the evidence in relation to her work for the WWPML, the women’s wing of the Pakistan Muslim League, is problematic. Although the applicant claimed to have been working for the WWPML for some six months, during which time she claims to have travelled to Quetta, Abbottabad and other parts of Pakistan, when asked by the delegate about basic aspects of the WWPML, the applicant had difficulty explaining her work. The applicant was unable to talk about the about the organisation’s principles or manifesto during the interview and during the hearing before this Tribunal, the applicant’s evidence as to the role of the organisation remained limited. When asked on a number of occasions during the hearing about her work for the WWPML, the applicant repeatedly referred to “educating women on their rights” and telling them about their rights, but was unable to expand on how she did this or what specifically she meant by this term. During the Department interview, the applicant was also unable to name any of the senior leaders of the WWPML and unable to provide any detail about the group’s views on political topics. The applicant also claimed that she attended training each evening but at the most recent hearing had difficulty expanding on what training she participated in and for what purpose, apart from stating that they told them about the Taliban and the importance of opposing the Taliban.

22    These are not an exhaustive analysis of the misgivings experienced by the Tribunal. But they are sufficient to demonstrate that the findings and conclusions of the Tribunal were founded upon a rational assessment of the claims being made and what appeared to the Tribunal to be inconsistencies in those claims.

23    Although findings as to credit are said to be findings of fact par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 58 ALD 609 at 625 per McHugh J), it is now well-accepted that such findings remain susceptible to judicial scrutiny. An administrative decision-maker can thus not seek to “shield” a decision from judicial scrutiny by the making of such findings: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J. The grounds upon which credibility findings may be scrutinised have been summarised as follows by McKerracher, Griffiths and Rangiah JJ in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, (2016) 253 FCR 496 at 508 to 509 (“CQG15”):

[38]    There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

(a)    failure to afford procedural fairness;

(b)    reaching a finding without any logical or probative basis;

(c)    unreasonableness; and/or

(d)    jurisdictional error as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451.

This summary has since been cited with approval in subsequent decision: e.g. ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83], (2015) 250 FCR 109 at 130-131 per Griffiths, Perry and Bromwich JJ; Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [64], (2017) 250 FCR 309 at 331 to 332 per Griffiths and Moshinsky JJ.

24    The manner in which the Tribunal resolved the claim made by the Appellants and the findings of fact made by the Tribunal expose no error of the kind set forth in CQG15. Notwithstanding the need in an appropriate case for judicial scrutiny, it must necessarily be recognised that findings of fact – including findings as to credibility – otherwise remain the task of the Tribunal alone: cf. Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559 per O’Connor, Branson and Marshall JJ; Nguyen v Migration Review Tribunal [2008] FCA 524 at [15] per Logan J.

25    It was no part of the function of the Circuit Court, or this Court on appeal, to revisit the evidence and make findings of fact different to those made by the Tribunal. Such a factual exercise forms no part of the judicial review functions entrusted to the Circuit Court.

A genuine fear of harm

26    The claim that the wife will face a “real risk” of harm if she returns to Pakistan is also without substance.

27    The claim fails simply for the reason that the Tribunal found that the claims made by the wife were not “truthful”. Part of the Tribunal’s reasons thus conclude as follows:

[34]    Having considered all of the evidence, the Tribunal is not satisfied that the applicant’s claims to fear harm in Pakistan are truthful. [T]he Tribunal does not accept that the applicant worked for the WWPML at any time or that she travelled to different parts of Pakistan to teach women about their rights. The Tribunal also does not accept that she was asked to participate in military training for the WWPML or that she refused. The Tribunal does not accept that the Taliban has ever had any interest in the applicant or that she has ever been targeted by the Taliban or that she or her father were threatened or that threats have continued in her absence from Pakistan. The Tribunal has no evidence in relation to an attack on the MQM offices in August 2012. However, even if an attack did occur on the MQM offices, the Tribunal does not accept that the applicant was working for the MQM, or that she was inside the premises at that time or the attack was perpetrated as a result of the applicant’s employment with the WWPML or the MQM. Nor does the Tribunal accept that the applicant’s father has received threatening telephone calls from the Taliban in relation to the applicant whilst the applicant has been in Australia. The Tribunal does not accept the applicant’s claims that the Taliban has continued to threaten her because they believe she has information about them which she could expose to the United Nations or the United States or the MQM. Nor does the Tribunal accept the applicant’s husband’s claims made to the previously constituted Tribunal that his home in Karachi was searched.

28    When considering the “harm” that would be faced if the wife returned to Pakistan, the Tribunal separately concluded as follows:

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, that there is a real risk that she will suffer significant harm?

[36]    The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. The Tribunal has not accepted that the applicant was ever targeted by the Taliban or any of its associated groups or that they have continued to issue threats to her father whilst she has been in Australia. The Tribunal has found above that the applicant has manufactured the totality of her claims to fear harm in Pakistan and that there is not a real chance that the applicant will suffer serious harm from the Taliban or any associated groups if she returns to Pakistan. For the same reasons, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm if she is removed from Australia to Pakistan.

[37]    The Tribunal is also not satisfied that there is a real risk that the applicant and her husband will suffer significant harm as a result of the generalised political violence perpetrated by the Taliban and various other groups in Pakistan society. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan there is a real risk that the applicants will suffer ‘significant harm’ such that they will be arbitrarily deprived of their life, suffer the death penalty or they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.

29    As with the other adverse findings made by the Tribunal with respect to the claims made by the Appellants, none of these findings expose any error of the kind identified in CQG15. Again, each of these findings are within the exclusive purview of the Tribunal to make and it was not open to the Circuit Court Judge, even if he disagreed with the Tribunal’s findings, to himself consider the evidence and make different findings of fact.

A failure to make out the claims – the need for caution

30    Even a cursory review of the reasons for decision of the Tribunal expose the fact that the Tribunal just simply did not believe the wife or the account of the events relied upon to support her claims.

31    The Tribunal, it may be observed, was not alone in its adverse assessment as to the wife’s evidence.

32    The delegate of the Minister when making the decision in February 2013 was also sceptical of the wife’s account. The delegate, for example, thought it “strange to say the least that her father would subsequently use his influence with the MQM to obtain work for his daughter with the women’s wing of the Pakistan Muslim League” in circumstances where the father had put “restrictions” on his daughter “because he held real fears for her safety”. The delegate was also “not satisfied that the applicant was involved in performing any work with the WWPML as claimed” and placed reliance upon her inability “to provide rudimentary information about the organisation’s principles or manifesto”.

33    In an appropriate case, the wholesale rejection of the evidence sought to be relied upon may be warranted where a finding is made that a claimant is advancing a largely fictitious or unsupported claim. However, as a general proposition, the more universal the rejection of claims made, and the more extensive the adverse findings made as to credit, the greater may be the need for judicial scrutiny. Concealed behind adverse credibility findings, for example, may be an unstated and inappropriate predisposition on the part of an administrative tribunal to reject any and all evidence adduced for consideration.

34    It is respectfully considered that care needs to be taken by administrative decision makers to ensure that all evidence is carefully considered – even if it is only to be later rejected as implausible. And, if rejected, there needs to be a sound and demonstrable basis upon which the evidence is rejected or given little weight. Especially in the context of cases such as the present, the Tribunal needs to be careful as to the manner in which it proceeds: cf. Kneebone S, The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role? (1998) 5 AJ Admin L 78.

35    On the facts of the present case, the findings and reasons of the Tribunal have been reached with particular care, as was the manner in which the hearing before the Tribunal was conducted. That hearing occupied in excess of two hours. More importantly, a review of the transcript exposes the Tribunal questioning the wife about her claims upon the very matters upon which it later proceeded to make its adverse findings. In doing so, the Tribunal proceeded in a manner which was procedurally fair. There was a rational basis upon which its adverse findings and assessments were based.

36    There is no basis for an argument that the Tribunal did not “independently” undertake a review of the claims advanced or any basis for an argument that the Tribunal manifested “personal bias”. Contrary to the argument sought to be advanced in the Grounds relied upon before the Circuit Court, the Tribunal did not fail “to take into consideration the evidence put forward by the applicant” and certainly did not act in “mass disobedience of the orders of the Federal Circuit Court” when that Court had set aside an earlier Tribunal decision and remitted it to the Tribunal as presently constituted for reconsideration.

37    The complaint of the Appellants in the present case, with respect, was ultimately exposed as an impermissible attempt to review the factual merits of the Tribunal decision. Expressed by reference to the purported Grounds relied upon before the Circuit Court or the Grounds of Appeal before this Court, the Appellants could not identify any legal error. Their case was simply that they disagreed with the facts as found by the Tribunal.

An underlying concern – the absence of two tiers of judicial scrutiny?

38    A concern underlying the present proceeding, and other comparable proceedings, is whether the legislative scheme which for present purposes permits of two tiers of judicial scrutiny of an administrative decision is being frustrated by a primary judicial decision-maker failing to explain the basis for a decision.

39    The legislative scheme in the present case essentially permits:

    judicial scrutiny by the Circuit Court of the Tribunal’s decision, albeit scrutiny constrained by s 476 of the Migration Act;

and, thereafter:

    appellate review of the Circuit Court decision.

It has thus been said that “there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court”: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804 at [14], (2015) 231 FCR 452 at 455 per Perram J (“AAM15”).

40    The underlying concern is that appellate review by this Court which proceeds by this Court itself considering the grounds of review which have been inadequately addressed in reasons for decision provided by the Circuit Court has the potential to deprive a party of proper consideration of his claims for relief by two courts.

41    The provision of reasons by a judicial decision-maker, it may readily be accepted, is “an incident of the judicial process”: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [47], (2018) 258 FCR 175 at 189 per Kenny, Kerr and Perry JJ (“DAO16”). A failure to provide adequate reasons by a primary Judge denies to a party (and to this Court on appeal) an explanation as to why orders have been made. A fundamental aspect of the first tier of judicial decision-making thus remains unfulfilled.

42    If this Court, when exercising its appellate function, routinely places to one side the decision at first instance and itself proceeds to discharge the functions of the primary Judge, the legislative scheme prescribed by Parliament is placed in jeopardy.

43    Much obviously depends upon the facts and circumstances of the individual case and the grounds of review upon which a party is contending before the primary Judge that an administrative tribunal has fallen into jurisdictional error and/or the grounds of appeal before this Court.

44    Cases on appeal may nevertheless fall into one or other of two broadly defined categories, albeit categories with very blurred and shifting edges.

45    Into one category fall those cases where a primary Judge has not even embarked upon the process of attempting to engage with the arguments presented for resolution or those arguments which clearly emerge from the materials available to the Court at first instance. In many cases arising under the Migration Act, those seeking judicial review are not represented. In many cases, as a practical matter, it regrettably falls to the Court or to the Respondent as a model litigant to identify manifest errors that may occasion relief. Whatever the difficulties that may be presented, that which cannot be accepted as a proper discharge of judicial responsibilities is a failure to attempt to engage with the legal issues that emerge and to give reasons for resolving those issues. Whatever the shortcomings in the judicial process, at a minimum there must be this attempt to identify issues and resolve them through the provision of adequate reasons.

46    Into the second category fall those cases in which some or all of the issues posed for resolution have been resolved and reasons provided. Those reasons may not be as complete as an appellate court would otherwise consider appropriate. The reasons may even fail to address some of the issues resolved. But into this category of cases fall those where the primary Judge has genuinely sought to address the issues posed for resolution and sought to provide reasons for his decision. All judges, with respect, both at first instance and on appeal would accept that on occasion each could have expressed conclusions more succinctly or even more fully. Each would accept that on occasion an issue may have been resolved by an order made but has escaped the necessity to provide reasons. When reasons for decision are revisited, it is not uncommon to experience an assessment that the reasons previously provided could have been better expressed and more fully developed.

47    The occasion for drawing this broadly expressed distinction between these two categories of cases is that this Court on appeal has, regrettably, been routinely exposed in one particular series of cases to decisions which are either devoid of reasons or are limited to extremely poorly expressed reasons. It is a concern which has attracted the criticism of both single Judges of this Court (e.g. AYG18 v Minister for Home Affairs [2019] FCA 454 at [24] to [25] per Flick J; COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [47] to [56], (2018) 259 FCR 1 at 16 to 18 per Griffiths J; DQA16 v Minister for Immigration and Border Protection [2018] FCA 2086 at [65] to [67] per Wigney J; BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683 at [71] per Flick J) and the criticism of the Full Court of this Court (e.g. BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [37] to [39] per Rangiah, Perry and Bromwich JJ; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [24] to [26], (2018) 263 FCR 292 at 300 per Perram, Perry and O’Callaghan JJ; DAO16 [2018] FCAFC 2 at [46] to [48], (2018) 258 FCR at 189 per Kenny, Kerr and Perry JJ). The problem persists. What Perram J in 2015 in AAM15 [2018] FCA 804 at [15], (2015) 231 FCR at 455 referred to as an “extreme” case and one which was “unlikely to recur” has now become the norm.

48    Expressed as a general proposition, this Court should reject an approach whereby it routinely on appeal undertakes for itself the task of resolving the grounds of review that were before a primary Judge and to provide on appeal the reasons as to the fate of those grounds. To do so “would erode the appellate nature of this Court’s jurisdiction”: AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [26] per Perram J. In AAM15, his Honour referred to the legislative structure being “thwarted”: [2015] FCA 804 at [14], (2015) 231 FCR at 455. However “administratively convenient” it may be for this Court to “fill the gap” left unfulfilled by a primary Judge, this Court when exercising its appellate role should resist such a course because to do so would be inconsistent “with the processes of review as prescribed by the legislature”: SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 at [41], (2007) 102 ALD 115 at 123 per Flick J (“SZKLO”).

49    There nevertheless remains an unresolved tension between this Court discharging its appellate function and preserving the legislative scheme prescribed by the Commonwealth legislature (on the one hand) and its responsibility to administer justice between the parties (on the other).

50    In those cases where inadequate or incomplete reasons have been provided by a primary Judge, the legislative scheme operates and this Court on appeal properly discharges its functions by resolving the issues between the parties. The primary Judge has at least genuinely embarked upon the discharge of judicial responsibilities and a hearing at first instance has taken place. The issues to be resolved on appeal should be discerned primarily by reference to the grounds of appeal – but may, on occasion, also be discerned from the grounds of review relied upon at first instance or even a Notice of Contention. The form in which an unrepresented party may draft a Notice of Appeal should not unnecessarily confine attention to the grounds set forth in the Notice of Appeal to the prejudice of resolving an issue which has clearly presented itself either at first instance or on appeal. A necessary qualification is that flexibility as to the manner in which a Notice of Appeal may be interpreted should not operate to the prejudice of a Respondent.

51    The tension is at its greatest, however, when the inadequacy in the reasons of a primary judge is so manifest that questions arise as to whether the primary Judge has even sought to engage with the arguments presented. Such cases should be the exception. If the legislative scheme prescribed by Parliament is to be preserved, an appropriate order on appeal may be to remit the case in order to ensure that a hearing at first instance in fact takes place.

52    But in such cases the purity of the legislative scheme is in fact frequently sacrificed by this Court in order to ensure that justice is done as between the litigants. Considerations as to the proper administration of justice frequently dictate that an appeal should be dismissed if grounds of review are found by this Court on appeal to expose no error: e.g. CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 at [93], (2018) 265 FCR 572 at 599 per Collier, Markovic and Lee JJ. To remit these cases to the Circuit Court constituted by a different Judge would only be to endorse a consideration of the case by three or more Judges – one being the primary Judge who has expressed either very inadequate reasons or no reasons; the second being a Judge (or three Judges) of this Court hearing the appeal; the third being a different Judge of the Circuit Court hearing the proceeding upon remittal to that Court; and the fourth being, potentially, another Judge of this Court hearing a second appeal. Neither the party seeking review, nor the Minister, should be forced to follow such a torturous route in their quest for justice.

53    Subject to these observations, the views previously expressed in SZKLO are adhered to.

54    The approach taken in the present proceeding, it should be expressly acknowledged, again places at risk a proper adherence to the legislative scheme whereby a litigant is entitled to a decision at first instance which sets forth proper reasons for the decision in fact made and a hearing on appeal directed to the ascertainment of appellable error. So much is necessary in an attempt to preserve the proper administration of justice.

CONCLUSIONS

55    Left to one side are whatever difficulties may have been experienced by the Appellants, as self-represented litigants, in drafting the Grounds upon which the application proceeded before the Circuit Court or the Grounds of Appeal as advanced before this Court.

56    The appeal is without substance because the Tribunal made adverse findings as to both credibility and fact with respect to the wife’s evidence and the claims she made, these being findings which were soundly based and rationally explained in the reasoning of the Tribunal.

57    It has ultimately been concluded that the Circuit Court Judge was correct to dismiss the application, albeit not for any of the reasons provided. The primary Judge was correct to dismiss the application because on a proper understanding of the arguments sought to be advanced by the now-Appellants, any such arguments were necessarily answered by the Tribunal’s adverse assessments as to the truthfulness of the claims being made.

58    There is no reason why costs should not follow the event. The inadequacy in the reasons of the primary Judge did not preclude the present resolution of the claims made by the Appellants. And those claims have been found to expose no jurisdictional error.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellants are to pay the costs of the First Respondent, either as agreed or assessed.

Associate:    

Dated:    19 December 2019