Federal Court of Australia

BGB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 11

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (now known as the Federal Circuit and Family Court of Australia) dismissing an application for judicial review of the second respondent (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing the grant of a Protection (subclass 866) visa to the appellant.

2    This appeal was heard immediately after the appeal in BFN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 12 and raises the same issue for determination, namely whether the primary judge, having delivered ex tempore reasons for dismissing the appellant’s application for judicial review filed in the Circuit Court, was thereafter required to provide a formal written form of those reasons and, if so, whether the failure to do so amounts to a failure by the primary judge to validly exercise his judicial power.

Background

3    The appellant, who the Tribunal found to be a citizen of China, arrived in Australia on 24 April 2008 as the holder of a Schools Sector visa (subclass TU571) (student visa). He was granted a subsequent student visa on 23 May 2008 which was valid until 15 March 2011.

4    On 26 May 2015 the appellant lodged an application for a protection visa in which he claimed to fear harm from local gang members and from the authorities if he were returned to China.

5    On 16 June 2016 a delegate of the Minister found that the appellant did not meet the criteria for the grant of a protection visa and refused his application.

6    On 8 July 2016 the appellant filed an application for review of the delegate’s decision with the Tribunal. On 15 March 2019 the Tribunal affirmed the delegate’s decision. Given the grounds of appeal, it is not necessary to set out the Tribunal’s reasons.

7    The appellant sought review of the Tribunal’s decision in the Circuit Court.

the Circuit Court proceeding

8    The appellant was not represented before the Circuit Court. At the hearing before the primary judge the appellant appeared in person assisted by a Mandarin interpreter. The appellant’s application for review, which in part comprised submissions, raised a number of matters which he said demonstrated that the Tribunal had fallen into jurisdictional error.

9    The primary judge appears to have dealt with the application for review on the basis that it raised the following grounds:

(1)    the Tribunal had made up its mind at the commencement of the hearing and did not approach his case with an open mind (grounds 1 and 7);

(2)    the Tribunal erred in making adverse findings in respect of the appellant’s evidence regarding his father’s death (ground 2);

(3)    the Tribunal erred in using its adverse findings in respect of the appellant’s father’s death to ignore every other piece of documentary evidence (ground 3);

(4)    the Tribunal erred in relying upon the contents of the appellant’s student visa application in making adverse findings in respect of the appellant’s evidence regarding his father’s death (ground 4);

(5)    the Tribunal erred in taking into account the appellant’s delay in applying for the protection visa (ground 5); and

(6)    the Tribunal erred in referring to an inconsistency between the appellant’s oral evidence and his written claims (ground 6).

10    On 26 September 2019, the primary judge delivered an ex tempore judgment dismissing the application and, among others, made the following orders (September 2019 Orders):

THE COURT ORDERS THAT:

…

4.    The transcript of the published oral reasons may be released to any party if they so request and the transcript of the published oral reasons will not be settled by the Court.

THE COURT NOTES THAT:

5.    The Court expects Auscript to comply with the above order 4 by the Court.

11    The Circuit Court did not formally publish its reasons. However, the transcript of the primary judge’s oral reasons has been produced on what appears to be an incomplete draft judgment template of the Circuit Court. The document has a “DRAFT” watermark, is not certified as a “true copy” of the reasons for judgment of the primary judge and contains several ellipses in the written text.

12    Under the heading “reasons for judgment” the primary judge first summarised the Tribunal’s decision including the matters that the Tribunal had raised with the appellant and its finding that the appellant was not a witness of truth. His Honour found that the appellant’s grounds in general invited merits review and, on the face of the material before the Circuit Court, did not establish any jurisdictional error. A summary of the primary judge’s findings follows:

(1)    in relation to ground 1, his Honour rejected the appellant’s allegation that the Tribunal had made up its mind at the commencement of the hearing. His Honour found that there was no evidence to support that allegation and that it was inconsistent with the conduct of the hearing as evidenced by the Tribunal’s reasons;

(2)    in relation to grounds 2 and 5, his Honour found that the Tribunal had identified “logical and lateral” reasons for the adverse findings made and that no jurisdictional error could be identified;

(3)    in relation to ground 3, the primary judge found that the Tribunal had provided the appellant with a real and meaningful hearing and engaged with his claims and evidence. His Honour noted that it was for the Tribunal to determine what weight to give to the evidence and that the appellant’s disagreement with the Tribunal’s conclusion in that regard did not identify any relevant jurisdictional error;

(4)    in relation to ground 4, the primary judge found that the content of the appellant’s student visa application was relevant to the appellant’s claims regarding his father and that it was logical for the Tribunal to have considered it. His Honour held that the appellant’s explanation for how the student visa was obtained in substance invited the Circuit Court to engage in merits review and no jurisdictional error could be identified;

(5)    in relation to ground 6, the primary judge held that it was logical and reasonable for the Tribunal to have referred to inconsistencies between the appellant’s evidence and his written claims and no jurisdictional error was identifiable;

(6)    in relation to ground 7, the primary judge rejected the appellant’s generalised allegation that the Tribunal had not approached his case with an open mind. His Honour observed that the allegation was inconsistent with the conduct of the review as revealed by the Tribunal’s reasons;

(7)    the primary judge referred to the appellant’s contention, which it seems was raised during the hearing before the Circuit Court, that the Tribunal was biased due to an incident during the hearing where his interpreter knocked over a glass of water. His Honour noted that the Tribunal had explained to the interpreter the need to raise issues rather than disrupt the hearing and concluded that this was not conduct that might cause a fair-minded lay observer to reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits; and

(8)    the primary judge also held that, to the extent that the applicant disagreed with the Tribunal’s finding that the appellant had fabricated his evidence, it was for the appellant to establish his claims and the adverse findings made by the Tribunal were open to it. His Honour concluded that the fact that the Tribunal made those adverse findings did not show that it was biased.

The Appeal

13    On 10 October 2019 the appellant, who at the time was self-represented, filed a notice of appeal in this Court. On 29 March 2021 the appellant filed an amended notice of appeal. On 27 April 2021 leave was granted to the appellant to rely on the amended notice of appeal.

14    The amended notice of appeal raises a single ground of appeal as follows:

The Federal Circuit Court erred in failing to provide a written form of its reasons settled by the Court.

I pause to note that the ground of appeal raised by the appellant is identical to that raised by the appellant in BFN19.

15    The appellant relied on an affidavit affirmed by him on 25 March 2021 in which he gave the following evidence:

(1)    he was self-represented in the Circuit Court and appeared at the hearing in that court assisted by a Mandarin interpreter;

(2)    at the conclusion of the hearing the primary judge pronounced his judgment in English and spoke at a fast pace without pausing to allow interpretation. The appellant did not understand what the primary judge said;

(3)    after the primary judge gave judgment the interpreter informed the appellant that his application had been dismissed and he would have to pay a fine of $5,600 to the court; and

(4)    when the appellant asked the interpreter why his application was dismissed, the interpreter told him that the court did not believe that his father had died in a shipping accident in April 2006.

Appellant’s submissions

16    The appellant submitted that in this case the primary judge delivered ex tempore reasons and, because he was relying on an interpreter, he was unable to properly and fully comprehend those reasons at the time they were delivered orally. The appellant referred to his evidence (see [15] above) that he did not understand a word of what was said by the primary judge because the judgment was pronounced at “a fast pace without any pause for the interpreter to interpret” and that the interpreter explained to him afterwards that his application had been dismissed because the court did not believe that his father has died in a shipping accident in April 2006.

17    The appellant submitted that to refuse to provide a settled written form of the court’s reasons in those circumstances eschews the judicial duty to provide adequate reasons. He contended that Order 4 of the September 2019 Orders clearly provided that the “transcript of the published oral reasons would not be settled by the Court” and that, in the absence of a settled written form of the court’s reasons, he is left to rely on his recollection of the interpreter’s explanation of the primary judge’s reasons for judgment.

18    The appellant submitted that the document obtained from Auscript does not remedy the difficulty and that he cannot rely on that document as a complete and/or true record of the primary judge’s reasoning. He pointed out that the document is marked as a draft only, parts of what was presumably said by the primary judge are omitted, as is shown by the ellipses, and there is no certification of the document.

19    The appellant submitted that the draft document obtained from Auscript cannot be said to constitute the operative reasons of the Circuit Court on the basis of which the present appeal can proceed. He contended that an aspect of the High Court’s reasoning in Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 was that, although the ex tempore reasons for judgment delivered orally had not been interpreted for the first respondent in that case, at the time of the hearing of the appeal in the Federal Court the first respondent had access to published written reasons of the Circuit Court, which were certified as a true copy of the reasons for judgment and which constituted the operative reasons of that court. The appellant said that the same cannot be said in this case.

20    The appellant submitted that it is not contended that it is necessary in every case for a judge to provide a settled written form of reasons for judgment delivered ex tempore. Rather, it is contended that, in the circumstances of this case, the primary judge’s refusal to settle a written form of his reasons and to provide such reasons to the parties was incompatible with the judicial duty to provide adequate reasons and that the failure to discharge that duty represents an error of law. The appellant submitted that the circumstances which are relied on in this respect are: that he was not legally represented; that he required the assistance of an interpreter; and that reference to the primary judge’s reasons is required for the purposes of the present appeal.

21    The appellant submitted that it follows from the failure to discharge the duty to provide adequate reasons that there was no real exercise of judicial power by the primary judge or, put another way, that there was a constructive failure to exercise judicial power. He said that the provision of reasons is an essential and defining characteristic of the judicial function and referred to SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at [55] where Allsop CJ said that “[t]he appellant is entitled, and was entitled, to a hearing reflecting the indicia of the exercise of the judicial power of the Commonwealth”.

Consideration

Legal principles

22    In Wainohu v New South Wales (2011) 243 CLR 181 at [54]-[58], in considering whether the Crimes (Criminal Organisations Control) Act 2009 (NSW) was, or certain provisions of it were, invalid, French CJ and Kiefel J (as her Honour then was) said the following (at [54]-[58]) about the duty of judges to give reasons for decision:

54    The centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised. In a passage from the first edition of Broom's Constitutional Law, published in 1866, the author said:

"A public statement of the reasons for a judgment is due to the suitors and to the community at large – is essential to the establishment of fixed intelligible rules and for the development of law as a science … A judgment once delivered becomes the property of the profession and of the public; it ought not, therefore, to be subsequently moulded in accordance with the vacillating opinions of the judge who first pronounced it."

That passage was said in the Supreme Court of Victoria to have "general application to all persons exercising judicial functions." Its universality was qualified in Public Service Board of New South Wales v Osmond by Gibbs CJ, who said that there was no "inflexible rule of universal application" that reasons be given for judicial decisions. His Honour, however, accepted that the requirement to give reasons is "an incident of the judicial process".

55    The duty upon judges to give reasons for their decisions has often been linked to the availability of rights of appeal against those decisions. A wider rationale, foreshadowed in the passage quoted from Broom, can be derived from the nature of the judicial function. In Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd, Mahoney JA, after referring to the importance of reasons for decision to the effective exercise of appeal rights, said:

"But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process."

The proposition that the provision of reasons for decision is an aspect of the judicial function has been supported by other decisions of the Supreme Courts of New South Wales, Victoria and Queensland.

56    Gummow J in Grollo described the essential attributes of the judicial power of the Commonwealth in familiar terms by reference to the resolution of justiciable controversies by ascertainment of the facts, application of the law and the exercise where appropriate of judicial discretion, adding "which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning." Heydon J in AK v Western Australia described the duty of judges to give reasons for their decisions after trials and in important interlocutory proceedings as "well-established". His Honour adopted as a summary of the objectives underlying that duty an extra-curial statement by Gleeson CJ:

"First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Secondly, the general acceptability of judicial decisions is promoted by the obligation to explain them. Thirdly, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions."

The duty does not apply to every interlocutory decision, however minor. Its content – that is, the content and detail of the reasons to be provided – will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.

57    The connection between the duty to give reasons and the nature of the judicial power enunciated in Grollo, and the objectives which that duty serves, explained in AK, marks the duty as an incident of the judicial function whether or not the court making the relevant decision is subject to appeal. …

58    The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion.

(Footnotes omitted.)

23    The content of the duty to give adequate reasons depends upon the circumstances of the matter being considered. It is not necessary for reasons to be elaborate or lengthy for them to be adequate: Thorne v Kennedy (2017) 263 CLR 85 at [61].

24    The duty imposed on a judge of the Circuit Court on delivery of ex tempore reasons was considered in AAM17. In that case, the first respondent sought judicial review in the Circuit Court of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister refusing the grant of a protection visa. The first respondent was not legally represented before the Circuit Court and relied upon an interpreter. At the conclusion of the hearing the Circuit Court delivered ex tempore reasons for the orders it pronounced. At the time, the court’s orders were interpreted for the first respondent but the oral reasons were not. The first respondent did not receive a transcript of the ex tempore reasons for judgment and had to prepare his notice of appeal to this Court without regard to any written reasons. The written reasons of the Circuit Court were published more than a month after the first respondent had filed his notice of appeal and outside the period in which a notice of appeal was required to be filed. Although this Court found that there was no error affecting the decision of the Tribunal, the appeal was allowed on the basis that the failure by the Circuit Court judge to have his reasons translated for the first respondent’s benefit constituted a denial of procedural fairness.

25    The issue before the High Court in AAM17 was whether, as had been found to be the case on appeal, the failure to have ex tempore reasons translated at the time of their delivery coupled with the failure to produce written reasons in a timely fashion amounted to a denial of procedural fairness. At [22] Steward J (with whom Kiefel CJ, Keane, Gordon and Edelman JJ each agreed) held that the final instance of the right of either party arising from the Circuit Court judge’s obligation to afford procedural fairness was at the time the parties made their closing submissions and thereafter procedural fairness had no role to play in respect of the matters the subject of the Circuit Court judge’s decision. However, his Honour also observed that “[a]s a matter of general fairness, rather than independent legal duty, the first respondent ought to have had the benefit of translated ex tempore reasons or written reasons at an earlier time”.

26    Commencing at [23] Steward J set out a number of propositions including the following concerning the position of the Circuit Court:

(1)    the Circuit Court is an inferior court, has no inherent powers and, as a creation of Parliament, has no authority other than that conferred on it by legislation. In that regard neither the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) nor the Federal Circuit Court Rules 2001 (Cth) (FCCA Rules), being the legislation in force at the time, addressed the topic of whether the Circuit Court is required to give written reasons or, if ex tempore reasons were delivered, whether they were required to be translated: at [26];

(2)    s 74(1) of the FCCA Act required an order of the Circuit Court to be in writing or reduced to writing as soon as practicable: at [27];

(3)    s 75 of the FCCA Act concerned what is to happen if the Circuit Court reserves judgment and the judge who heard the proceeding “subsequently prepares orders and reasons” but is not available to publish them. His Honour held that the FCCA Act authorises a Circuit Court judge to give ex tempore reasons and final orders upon completion of a hearing and also to reserve judgment where it is not possible or desirable to deliver ex tempore reasons: at [28];

(4)    the FCCA Rules did not resolve the issue that arose for determination and, while those rules made certain provision for the receipt of translated documents, no such provision was made in relation to giving judgment. His Honour said that “there was no reason to suppose that a ‘judgment’ or ‘order’ for the purposes of the FCCA Rules is subject to a requirement that it be translated to a non-English speaking litigant where no such obligation conditions the power to give judgment or make orders under the FCCA Act”: at [29]; and

(5)    the nature of the Circuit Court’s jurisdiction also supports the giving of ex tempore reasons which are later published in written form with revisions: at [30].

27    At [32] Steward J said:

Sixthly, and contrary to the submission of the first respondent, where written reasons of a court are published following the giving of ex tempore reasons, those written reasons must be taken to be the authentic expression of the judgment of the court unless it is otherwise shown that those reasons had materially deviated from what had been announced in court. Such deviations might be demonstrated by calling for the transcript (or other recording) of the ex tempore judgment; by the production of notes taken by counsel or by an instructing solicitor of what was said; or even by evidence given by counsel or an instructing solicitor in lieu of such notes. In Bromley v Bromley, following the grant of a decree nisi of divorce, the wife sought the transcript of the judge's reasons for judgment. With two days left to appeal, a photograph of a revised transcript was produced by the shorthand writer to the wife, bearing the marked-up amendments and deletions made by the judge. The wife submitted that the changes that had been made were material in nature and urged the Court of Appeal to examine the original transcript. It was said that certain of the judge's findings of fact in the original transcript, or the way in which he expressed his findings of fact as recorded in that transcript, ill-accorded with the conclusion at which he ultimately arrived. The Court of Appeal refused to inspect the original transcript. Willmer LJ said that in the absence of evidence to show that the judge had "so altered his judgment as to change its whole character", it would be "improper" for an appellate court to look at the original transcript "merely because it is the original transcript". Importantly, his Lordship said:

"What we must look at is that which bears the stamp of the judge's approval, and on that must stand or fall the success of the appeal."

    (Footnotes omitted.)

28    In CQX18 v Minister for Home Affairs [2019] FCA 386, in considering whether the primary judge’s failure to produce a written version of his oral reasons before the time within which an appeal could be brought had expired, albeit in obiter, Perram J said at [15]-[18]:

[15]    … I doubt that a failure to reduce an oral judgment to writing within the appeal period involves jurisdictional error. There are a number of reasons for this.

[16]    First, it is not self-evident that there is any legal obligation on a Federal Circuit Court Judge to produce a written version of oral reasons at all. No such requirement appears in the Federal Circuit Court Act or the FCR. The Federal Circuit Court is an inferior court and its procedures are to be found in its constitutive legislation and in what may legitimately be inferred from that legislation: Palmer v Clarke (1989) 19 NSWLR 158 (‘Palmer v Clarke’) at 166-167 per Kirby P (citing Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 at 447 per Herron CJ, Wallace P and Manning JA). It may in light of that be doubted, I think, that the Federal Circuit Court even has a power to revise its oral judgments (although there is no occasion presently to express a concluded view on that matter). If there is no obligation to produce a written version of oral reasons then a fortiori there can be no such obligation to produce the written version at any particular time.

[17]    Secondly, whilst one may accept that the Court could produce a written version of its reasons if it chose, there is much to be said for the view that once it has pronounced its orders and given orders it is functus officio and has no further legal function: Palmer v Clarke at 172 per Kirby P, and 174 per Priestley JA; cf CLU16 v Minister for Home Affairs [2019] FCA 147 at [18] per Rares J. As such, it is conceptually difficult to see how the subsequent production of a written set of reasons can have any impact on the earlier exercise of jurisdiction.

[18]    Thirdly, if a failure to produce a written set of the oral reasons within the appeal period were a jurisdictional error, it would be difficult to ascertain when the error was made. One could not know until the expiry of the appeal time (or until the earlier delivery of the written reasons) whether the error had been made. Until either of those events, the status of the Court’s orders would be essentially unknowable. This matters because an order made by an inferior court in excess of its jurisdiction is invalid. Particularly where questions of contempt of court may intrude, it is unsatisfactory to have the orders of the court in an unknown state of validity pending ascertainment of whether the written reasons are delivered within the appeal period.

Did the primary judge err?

29    As I have already observed, the question to be resolved in this appeal is the same as the question which arose for consideration in BFN19, namely whether the primary judge erred in refusing, as evidenced by making Order 4 of the September Orders, to provide written reasons following delivery of his ex tempore reasons for judgment. Save insofar as they highlight different factual matters, the appellant’s submissions set out above mirror those made by the appellant in BFN19. In addition, at the hearing each party adopted the oral submissions made in BFN19 for the purposes of this appeal.

30    Despite the differences in the applicable facts, I have reached the same conclusion in relation to the question that arises here as I did in BFN19 and have done so principally for the same reasons: see BFN19 at [40]-[51]. That is, there was no error as alleged on the part of the primary judge in proceeding as he did. I set out below my reasons for reaching that conclusion.

31    Before proceeding further, however, as I observed in BFN19 at [36] the concerns raised by the appellant are entirely understandable. The Circuit Court deals with a large volume of cases on a daily basis but it also hears matters which touch upon important aspects of peoples’ lives and which can affect a litigant’s status. It has jurisdiction in areas where there can be a significant number of unrepresented litigants and litigants for whom English is not their first language or who appear with only a very basic understanding of it. That being so, I would actively discourage the approach adopted by the primary judge. Concern has previously been expressed in other cases about the use of a transcript as a substitute for formal reasons of a court, albeit in the particular circumstances which applied in each case: see BFN19 at [38]-[39].

32    As was the case in BNF19 the appellant takes issue with the September 2019 Orders insofar as they state the “published oral reasons will not be settled by the Court”. It is because of this aspect of Order 4 that the primary judge is said to have fallen into error. The order so made is said to amount to a refusal to provide written reasons which is incompatible with the duty to provide adequate reasons.

33    Having regard to the authorities set out above and facts of this case the following propositions emerge:

(1)    a judge has a duty to give reasons for his or her decisions. Giving reasons is an incident of the judicial function: see Wainohu at [54]-[58];

(2)    the primary judge discharged his duty to give reasons upon delivery of his ex tempore judgment. The primary judge had authority to make orders and to deliver oral reasons for judgment at the conclusion of the hearing: see AAM17 at [28];

(3)    the primary judge’s ex tempore reasons were recorded at the time they were delivered. The primary judge sought to ensure access for the parties to the transcript of those reasons by the parties and made a notation on the September 2019 Orders of an expectation that Auscript, the provider of transcript services, would comply with Order 4. The transcript of those reasons was obtained and a copy was before me on the appeal. I address the transcript below;

(4)    the appellant contended that there was an inherent obligation or requirement for the primary judge to provide a settled version of the ex tempore reasons which are set out in the transcript, although he could not point to any authority in support of that proposition. However, the Circuit Court is an inferior court of record, has no inherent powers and, being "a creature of Parliament", has no authority other than that conferred on it by legislation which, at the time, was the FCCA Act and the FCCA Rules. There is nothing in either that Act or the rules concerning whether the Circuit Court is obliged to give written reasons;

(5)    the obligation to give reasons extends to the requirement to give adequate reasons but there is no authority for the proposition that ex tempore reasons are inadequate merely because they are given orally. What is adequate must necessarily vary depending on the nature of the case and the issues before the court for resolution;

(6)    a written form of reasons produced after the delivery of ex tempore reasons does not supplant or overtake the oral reasons. The latter are the reasons of the court. To the extent they are reduced to writing, the written form must not deviate in any substantive way from the oral reasons; and

(7)    subject to the issues raised by the appellant about the adequacy of the transcript, which I address below, for the reasons set out at [51] of BFN19 the appellant is not assisted by the decisions in Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 and CQX18 v Minister for Home Affairs [2019] FCAFC 142; (2019) 372 ALR 137.

34    The appellant said that in the absence of a settled form of the oral reasons he was left to rely on his recollection of the interpreter’s explanation of the reasons given for dismissing his application for judicial review filed in the Circuit Court. However, that submission ignores the effect of the September 2019 Orders which was to give the appellant access to the transcript, a written record of the primary judge’s reasons.

35    The appellant was critical of the transcript of the oral reasons which was made available to him and contended that because of its form, marked as it was as a draft, and the errors and omissions in it, it could not be relied on as a complete or true record of the primary judge’s reasons. True it is that the transcript, which has been formatted into a Circuit Court judgment template, is marked with a “draft” watermark. But that of itself does not make its content unreliable. There are also a number of paragraphs in which ellipses appear, presumably because the transcriber was unable to understand or decipher the word or words spoken as follows:

(1)    at para 3 where the primary judge was setting out the history of the appellant’s application:

3.    On 16 June 2016, a delegate found the applicant failed to meet the criteria for the grant of a protection visa. The delegate found the applicant was not a witness of truth. The applicant applied for review on 8 July 2016. ..... 8 February 2019, the applicant was invited to attend a hearing on 12 March 2019. The applicant appeared on that date to give evidence and present arguments and was represented by his migration agent. The Tribunal, in its reasons, identified the background to the review and summarised the applicant’s claims as well as the substance of what occurred before the delegate. The Tribunal referred to the hearing and the issues raised by the applicant and exploring the applicant’s claims.

(2)    at paras 9, 12 and 15 in setting out the findings made by the Tribunal:

9.    The Tribunal also raised with the applicant how he was able to leave the country on a valid passport if, in fact, he was ..... adverse interests of the authorities and the Tribunal referred to the applicant’s assertion of secret arrangements for him to leave and the bribing of an official. The Tribunal referred to the applicant asserting he was on a blacklist and raised with the applicant how he knew he was on the blacklist. The Tribunal, in that regard, referred to the applicant not answering the question as to how he knew he was on a blacklist and the Tribunal referred to having given the applicant a fair opportunity to answer the question.

…

12.    The Tribunal referred to the applicant’s claims in relation to fighting with the Chinese government and being threatened by a Mr Wei and government officials and claiming his girlfriend had arranged to ..... his visa to Australia.

…

15.    The Tribunal was not satisfied the applicant was of adverse interest to the authorities. The Tribunal did not accept the applicant fears harm or persecution in China or that he has any matter to pursue with the court or the authorities if he returns to China. The Tribunal did not accept the applicants claims in relation to ..... harm by gangsters and the authorities. The Tribunal was not satisfied there is a real chance the applicant would be persecuted for any one or all of the reasons claimed if returned to China. The Tribunal found the applicant did not meet the definition of refugee and that the applicant failed to meet the criteria under section 36(2)(a) of the Act. The Tribunal found that a not substantial balance of leaving is a necessary and foreseeable consequence of the applicant being removed from Australia to China is a real risk of significant harm. The Tribunal found the applicant did not meet the criteria in section 36(2)(aa) and affirmed the decision under review.

(3)    at paras 22 and 23 in addressing the grounds of the appellant’s application:

22.    Ground 1 of the application alleges that the Tribunal had made up its mind at the commencement of the hearing. There is no evidence to support the allegation of bias in ground 1. The reasons of the Tribunal and the conduct of the hearing as identified in the Tribunal’s reasons is inconsistent with the assertions made in ground 1. No case suffice is made out. No jurisdictional error is made out as ..... ground 1.

23.    In relation to ground 2, the applicant takes issue with the Tribunal’s adverse findings in respect of his father’s death certificate and disagrees with the adverse findings in that regard. The applicant’s disagreement with the adverse findings does not identify any relevant error by the Tribunal in its adverse credibility findings in respect of the father’s death. The Tribunal identified logical and lateral reasons as ..... of those adverse findings, including the post-death dated qualification certificate and the information in the applicant’s student visa. Nothing in ground 2 identifies any jurisdictional error.

36    There are also a number of typographical errors and some infelicity of expression or words incorrectly transcribed in the transcript.

37    While I accept that the issues identified above affect the overall quality of the transcript, and indeed are regrettable, they do not render it so incomprehensible as to be unreliable. Contrary to the appellant’s submission, in the circumstances of this case the steps taken by the primary judge in refusing to settle a written form of his oral reasons was not incompatible with the duty to provide adequate reasons. The primary judge delivered an ex tempore judgment. It is not said that those reasons were inadequate, there is no obligation or duty to reduce those reasons to a settled written form and, in any event, a review of the transcript shows that the oral reasons are adequately transcribed.

conclusion

38    The appeal should be dismissed. As the appellant has been unsuccessful he should pay the Minister's costs as agreed or taxed.

39    I will make orders accordingly.

Associate:

Dated:    18 January 2022