Federal Court of Australia

DQF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 413

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 orders made by the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) on 2 June 2021 dismissing an application for judicial review of a decision of the second respondent (Authority) made on 31 August 2019: see DQF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 845. The Authority had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a protection visa under the Migration Act 1958 (Cth).

background

2    The appellant is a citizen of Bangladesh. He arrived in Australia on 12 July 2013 as an unauthorised maritime arrival.

3    On 13 August 2013 the appellant participated in an entry interview. He claimed that he was involved in politics as a member of Jamaat-e-Islami (JI), that one night unidentified assailants who were wearing masks beat him, that he did not hold any position in JI and was “just a member” and, at the time of the interview, he had been a member for the past three years.

4    On 17 October 2016, assisted by his authorised representative, the appellant lodged an application for a protection visa. In that application, the appellant claimed that he left Bangladesh because members of the Awami League Government forces beat him on two occasions as a result of his membership of JI. He said that if he was to return to Bangladesh he believed that government forces would kill him.

5    On 1 August 2019 a delegate of the Minister refused to grant the appellant a protection visa.

6    On 7 August 2019 the Minister’s decision to refuse the appellant a protection visa was referred to the Authority for review.

7    On 9 August 2019 the appellant’s authorised representative sent a submission to the Authority requesting it to exercise its discretion under s 473DC(3) of the Act and invite the appellant to comment in an interview or in writing on new information.

the authority’s decision

8    On 31 August 2019 the Authority affirmed the Minister’s decision not to grant the appellant a protection visa.

9    The Authority first reviewed the evidence and made factual findings. It concluded, overall, that the appellant’s evidence was inconsistent and changeable and found that it was not credible. The Authority was not satisfied that the appellant’s claims reflected his real circumstances in Bangladesh or the reason for his departure. It did not accept that the appellant was ever at the level of member of, or a worker for, the JI party or that he did any form of work for it. Nor was the Authority satisfied that the appellant was an activist for the JI party or had any interest in it as a supporter. The Authority did not accept that the appellant was of any interest to any Awami League authorities and did not accept that he was ever threatened or assaulted by them as claimed, that he went into hiding from them or that any of his brothers were ever threatened about him by Awami League members.

10    The Authority set out in detail the basis for reaching its conclusions on the evidence and making those factual findings. In particular, the Authority rejected, as not credible, the appellant’s evidence about the two alleged attacks by members of the Awami League. It found his evidence about how he knew his assailants were from the Awami League to be unpersuasive and shifting, his evidence about the first attack to be “somewhat implausible” and his evidence about the second claimed assault to be “changeable”.

11    Having made its factual findings the Authority then considered whether the appellant had a well-founded fear of persecution for the purposes of s 5J of the Act and whether he met the requirements of the definition of refugee in s 5H(1) of the Act. It concluded, based on its findings of fact, that the appellant did not have a well-founded fear of persecution in Bangladesh within the meaning of s 5J(1) of the Act and that he did not meet the requirements of the definition of refugee in s 5H(1) of the Act. Therefore the Authority found that the appellant did not meet the requirements of s 36(2)(a) of the Act.

12    The Authority also assessed the appellant’s claims under the complementary protection provisions of the Act but concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the appellant would suffer significant harm. It thus found that the appellant did not meet the requirements of s 36(2)(aa) of the Act.

the Federal circuit court’s decision

13    The appellant sought judicial review of the Authority’s decision in the Federal Circuit Court. He was represented by counsel and a solicitor before that court.

14    In his application for judicial review the appellant raised the following ground (as written):

1.    The IAA fell into jurisdictional error in failing to exercise its review jurisdiction by reasons of there being a reasonable apprehension of bias.

Particulars

a.    The fact-finding by the IAA was performed in a manner which was capricious, arbitrary, unreasoned, consisted of assertion, lacked rational or reasoned foundations, and/or was in relation to the preponderance of findings selective of material or conclusions going one way only, such that a fair-minded and informed person might reasonably apprehend that the decision maker might not have brought an impartial mind to bear on the decision;

b.    The findings of fact to which the fair-minded and informed person might reasonably have regard in forming the apprehension include:

i.    The finding that the applicant’s evidence did not demonstrate any closer insight into or deeper appreciation of the JI party then would be gleaned by any person exposed to JI election campaign material or who had witnessed a campaign meeting or really or news media about the JI;

ii.    The findings that the applicant responded with broad generalities to questions about JI ideology or objectives;

iii.    The finding that the applicant was unable to point to any JI works or programs that attracted him to JI, or that were discussed in party meetings, even at his local level;

iv.    The finding that the applicant did not highlight the difference of JI to the main stream parties being its stance against all secularism, including politics and law or more significantly point to his Muslim faith being of any importance to him when asked what he liked about JI;

v.    The finding that the applicant made no mention of any discussions, at meetings or rallies he claimed to have attended, having been about any issues concerning the threat to the political existence of the JI party by the court challenge to its charter policies or the subsequent enforced changes to it, including regarding the role of women and treatment of non-Muslims;

vi.    The finding that the applicant made no mention of the subsequent arrests and trials of many leaders and members, including on war crime charges, after the AL came into power;

vii.    The finding that the applicant made no mention of any party responses to those issues, which had stirred the party to protests, on the country information before the IAA and which issues all arose during the time he claims to have been so significantly involved in the party;

viii.    The finding that the applicant made a bare claim to know of secret killings of some JI leaders in Dhaka in 2013 known only to the members of JI; and

ix.     Furthermore, the IAA acted unreasonably in not considering to put any of the above mentioned findings to the applicant for comment under s473DC(3) as requested in his submissions dated 9 August 2019.

15    The primary judge considered that there were, in effect, two grounds of review because particular (ix) should be taken to be a freestanding ground of review by which the appellant contended that the exercise of the discretion in s 473DC(3) of the Act was necessary in order to dispel the asserted apprehension of bias: see DQF19 at [23].

16    Given the nature of the ground of appeal (see [24] below) I set out below the structure of the primary judge’s decision, before summarising his Honour’s findings.

17    The primary judge commenced by setting out a background to the proceeding. Among other things, his Honour referred to: the appellant’s arrival in Australia; the claims he made at the time of his entry interview and in support of his protection visa application; a summary of the reasons given by the delegate of the Minister for refusing the appellant’s application for a protection visa; the referral of the delegate’s decision to the Authority under Pt 7AA of the Act; and a summary of the submission provided by the appellant’s migration agent to the Authority in support of the application made under s 473DC(3) of the Act for the Authority to invite the applicant to comment on new information: see DQF19 at [1]-[19].

18    The primary judge then set out a summary of the Authority’s decision: see DQF19 at [20]-[21]. In doing so the primary judge adopted the Minister’s submissions. That is, as explained by counsel appearing for the Minister, those paragraphs replicate two paragraphs of the Minister’s submissions.

19    Next, under the heading “The current proceedings”, the primary judge set out the history of the proceeding in the Federal Circuit Court, including the appellant’s ground of review and his Honour’s opinion (referred to at [15] above) that particular (ix) of the ground was better seen as a free standing ground of review: see DQF19 at [23]-[25].

20    Commencing at [26] of DQF19 the primary judge turned to consider the grounds of review. After once again setting out the appellant’s ground of review, at [27] his Honour referred to the oral submissions made on behalf of the appellant.

21    At [28]-[37], the primary judge addressed the first aspect of the ground of review, being an allegation of apprehended bias on the part of the Authority. His Honour set out the applicable legal principles and then applied them to the facts of the case. As to the latter his Honour referred to the process undertaken by the Authority in making its decision and set out the reasons why in his opinion there was no jurisdictional error: see [34]-[37] of DQF19. Relevantly, his Honour said that:

(1)    there was nothing impermissible about the Authority adopting the approach it did, that it did not “prescribe some sort of specific level of doctrinal knowledge as a precondition to the [appellant] being accepted as a JI member, or impose an arbitrary minimum expected standard to justify being regarded as a JI member” but simply concluded that the appellant’s lack of knowledge indicated that he was not a genuine adherent;

(2)    the argument that the Court should infer that there was some sort of bias on the part of the Authority from mere adverse credibility findings could not succeed;

(3)    the factual conclusions cited by the appellant overlooked the broader context of the Authority’s findings in that the Authority also considered the appellant’s evidence in light of the letter of support, which was inconsistent with his other claims, and his oral evidence at the protection visa interview which was also inconsistent with country information; and

(4)    the appellant’s reliance on four particular findings by the Authority also failed to establish what his Honour described as “a rare case of bias”.

It was not in dispute that the primary judge’s reasons at [29]-[37] adopted [19]-[24] of the Minister’s submissions.

22    The primary judge then turned to consider the second aspect of the appellant’s ground of review. His Honour found that, given his finding that there was no apprehended bias on the part of the Authority, that aspect of the ground of review, which concerned the non-exercise of the discretion in s 473DC(3) of the Act, fell away: see DQF19 at [38]. Notwithstanding that, the primary judge proceeded to assess whether there was some other asserted basis for the contention of unreasonableness in failing to exercise that discretion but found that there was not. In doing so his Honour agreed with the submissions made on behalf of the Minister and set out his reasons as to why there was no jurisdictional error: see DQF19 at [39]-[41]. It was not in dispute that those reasons adopted [25] of the Minister’s submissions.

23    The primary judge concluded that the appellant had failed to establish that the decision of the Authority was affected by any jurisdictional error. Accordingly, his Honour dismissed the application.

the appeal

24    The appellant raises one ground of appeal in his notice of appeal filed on 29 June 2021, being (as written):

1.    The Federal Circuit Court of Australia erred in failing to give adequate and impartial reasons in the judgment of 2 June 2021.

Particulars

a.    On 20 April 2021 the appellant filed an outline of submissions;

b.    On 27 April 2021 the First Respondent Filed an outline of submissions;

c.    The hearing was held by telephone on 28 April 2021;

d.    On 2 June 2021 the Court delivered its judgment;

e.    The section of the judgment under the heading “The Authority's Decision" at page 6, paragraph 20, the section is in the same terms as the First Respondent's outline of submissions under the heading "The Authority's Decision" at page 3, paragraph 14;

f.    The section of the judgment at pages 10 to 14, paragraphs 29 to 41 are in the same terms as the First Respondent's outline of submissions from pages 4 to 8, paragraphs 19 to 25;

g.    In copying and pasting large sections from the First Respondent's submissions into the judgment as the Court's own reasons to dismiss the application, raises reasonable doubts as to whether the Federal Circuit Court of Australia exercised an impartial mind in hearing and determining the application and furthermore, failed in its statutory duty to undertake a judicial review of the Immigration Assessment Authority's decisions and reasons.

25    The appellant was represented at the time he filed his notice of appeal. However, by the time of the hearing his solicitor had filed a notice of ceasing to act. Thus the appellant appeared at the hearing of the appeal without any legal representation, assisted by an interpreter.

26    No submissions were filed by or on behalf of the appellant prior to the hearing. At the hearing, when invited to do so, the appellant did not make any submissions in support of the ground set out in his notice of appeal. The submissions he made were to the effect that he was grateful that he had an opportunity to come before the Court but that he would leave the matter to the Court to determine. He also informed the Court that he had not been well and that if he was able to stay in Australia he would be able to seek medical assistance. No further details were provided by the appellant about his illness.

27    The Minister had filed and served written submissions, which the Appellant said he had received and read prior to the hearing.

Consideration

28    The appellant’s single ground of appeal alleges that the primary judge failed to give “adequate and impartial reasons” because he copied and pasted sections of the Minister’s written submissions that were before him into his judgment.

29    In SZMUV v Minister for Immigration and Citizenship [2009] FCA 205 Flick J considered the adequacy of reasons delivered by a Federal Magistrate in circumstances where those reasons occupied some nine pages of which: two pages set out verbatim the Minister’s submissions as to the relevant “background”; one page set out verbatim the grounds of the “amended application”; and a further two pages adopted and set out verbatim the Minister’s submissions on substantive issues. The balance of those reasons, being some four pages, set out the reasons as expressed by the Federal Magistrate.

30    At [10]-[15] of SZMUV Flick J set out the relevant legal principles as follows:

10    It is not for this Court, exercising an appellate jurisdiction, to itself consider the Amended Application and to conclude — for reasons not expressed by a Federal Magistrate — whether it would have also reached the same conclusion. It is not for this Court to provide the findings and reasons that should have been provided by the Federal Magistrate. This Court should be provided with the invaluable assistance that is in fact gained from a reading of the reasons of the Federal Magistrate whose decision is under appeal — rather than assistance from the written submissions previously advanced on behalf of the Respondent Minister.

11    In the present proceeding, it is not at all self-evident that the Magistrate:

(i)    independently considered each of the grounds upon which the application was being advanced in that Court; and

(ii)    provided reasons for his conclusions that each of those grounds was to be rejected.

12    The Respondent Minister did not argue that the Federal Magistrate was not under a duty to provide reasons for his decision. The argument on behalf of the Minister was that this obligation had been discharged.

13    An insistence upon a decision-maker expressing his or her own findings and reasons, and resisting a course whereby submissions otherwise filed by a party are “adopted” or “incorporated” as the reasons of the decision-maker, is not a mere formality. It is an insistence upon a discipline requiring the decision-maker to independently address the facts and circumstances of a particular case and to independently apply the relevant legal principles to those facts and circumstances. That which may appear self-evident upon a mere reading of submissions prepared by others often proves to be an over-simplification when the discipline of making findings and expressing reasons is independently undertaken.

14    The provision of reasons serves a valuable purpose in the administration of justice: Connell v Auckland City Council [1977] 1 NZLR 630. Chilwell J there observed, at 634:

A matter which I have not mentioned, which is another reason for requiring the stating of reasons, is this: every litigant who loses his action, whether it be in the civil or criminal jurisdiction, is a disappointed litigant. That is inevitable and is a logical result of our judicial system. There is all the world of difference between a disappointed litigant and a disturbed litigant. In the latter category come litigants who cannot understand why the decision went against him. In this case the appellant would be justified in feeling disturbed as he presumably does because he has brought this appeal. He is disturbed that justice did not appear to him to have been done. It is of the utmost importance that Her Majesty’s subjects should have faith in our judicial system. By far the greatest number of civil and criminal cases come before the lower court. One should not draw distinctions between courts but it is of fundamental importance that the lower courts, which deal with so much work and with whom the average citizen has greater contact, should maintain respect for and faith in the judicial system.

Applied: SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 at [20], 102 ALD 115 at 120. In a subsequent decision of the New Zealand Court of Appeal in Bell-Booth v Bell-Booth [1998] 2 NZLR 2 at 6 the Court observed:

Reasons for judgment are a fundamental attribute of the common law. The affinity of law and reason has been widely affirmed and a Judge's reasoning — his or her reasons for the decision — is a demonstration of that close assimilation. Arbitrariness or the appearance of arbitrariness is refuted and genuine cause for lasting grievances is averted. Litigants are assured that their case has been understood and carefully considered. If dissatisfied with the outcome, they are able to assess the wisdom and worth of exercising their rights of appeal. At the same time public confidence in the legal system and the legitimacy and dynamic of the common law is enhanced. The legal system can be seen to be working and, although possibly at times imperfectly, striving to achieve justice according to law.

15    In Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407, the Court of Appeal was entertaining an appeal from an award entered in the Compensation Court. The primary Judge in his reasons stated that regardless of any determination of his own, the matter was to be removed forthwith to the High Court. The delivery of “lengthy reasons”, according to the primary Judge, was thus considered to be of “little assistance”. The transcript of submissions was incorporated into the reasons and preference expressed for the submissions of the worker and the State. “The applicant”, the primary Judge concluded, “has discharged his onus in all respects and is entitled to an award”. Kirby P (as His Honour then was) voiced similar concerns to those expressed by the New Zealand Court of Appeal when he observed (in part) as follows, at 416:

… [I]t is worth collecting the reasons which obliged his Honour to provide more than the findings offered in this case. They included:

(1)    The fact that the High Court had returned the cause to the Compensation Court specifically to permit the ordinary procedures of the law to be followed. These include proper fact finding at first instance. Only if this course is followed will appellate courts be saved the time otherwise taken in determining the facts, isolating the issues, removing issues not seriously in contention and addressing those which are;

(2)    The judicial reasons at first instance are of benefit not only to the parties and their advisers, but also to the appellate court. The analysis of issues by one legally trained mind will often help others to cut through the issues on appeal to those which are most important. This is especially true in a case where multiple issues are raised, as in this case;

(3)    It may be possible to conceive an instance where the incorporation of submissions by one party in reasons for judgment would be an adequate compliance with the judicial duty to provide reasons. That was certainly not the case here. …

In applying this decision it has subsequently been held that “… it is generally true that merely to set out two competing sets of reasons and to say that one is preferred … is not a satisfactory method of complying with the judicial duty to give reasons”: Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238 at [66] per Heydon JA (Hodgson JJA and Ipp AJA agreeing). See also: Goldsmith v Villanueva [2000] NSWSC 1181 at [13] per Adams J; Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 at [44] to [45] per Perram J.

(Emphasis in original).

31    At [16]-[18], in applying those principles in the context of the particular matter before him, Flick J said:

16    In the context of hearing appeals arising under the Migration Act 1958 (Cth), this Court is heavily dependent upon the Federal Magistrates Court properly discharging the functions entrusted to it. And an unsuccessful litigant before that Court is also entitled to go away knowing the reasons of the Federal Magistrate as to why he has lost. A course of simply incorporating the submissions prepared by others exposes a disappointed litigant to a sense of grievance — however misplaced — that the Federal Magistrate has merely “rubber stamped” the administrative process to date and the approach being pursued by the Minister.

17    A deficiency in reasons may be exposed in a number of ways — there may, for instance, be an absence of findings upon which a conclusion has been reached, or an absence of reasons directed to the findings that have been made. In the present proceeding, each of the grounds set forth in the Amended Application has been addressed, albeit by an incorporation of the Minister’s submissions as the reasoning process of the Magistrate. But that, it is respectfully considered, is the deficiency. A litigant is entitled to reasons as formulated by and expressed by the Magistrate. To adopt any other course is only to encourage an appearance that the Magistrate has not independently applied his own mind to the application before the Court and to encourage a course whereby the discipline of writing reasons is sacrificed to expediency.

18    Such observations do not necessarily entail that reasons for decision should not, in an appropriate case, incorporate proposed findings or reasons otherwise set forth in the submissions of one or other of the parties. Much will depend upon the circumstances of each individual case. But the minimum requirement is that a litigant can discern from the reasons provided the basis upon which a Magistrate has in fact proceeded. A litigant is entitled to feel confident that the reasons provided are those of the Magistrate and not a mere adoption of the reasons of others without independent thought being given to each of the arguments advanced and resolved.

32    His Honour noted that the difficulty emerged from the extent to which the Federal Magistrate had pursued “a course of incorporating the work of others”, a difficulty which was compounded by the generality of the submissions previously advanced by the Minister and thereafter incorporated in the reasons: SZMUV at [19]-[20].

33    At [23] Flick J observed that:

Obvious care must be taken to ensure that an appeal does not become a vehicle for simply criticising the manner in which the reasons of a judge at first instance have been expressed. Recognition must also be given to the fact that the Federal Magistrates Court is entrusted with a primary role in resolving migration cases. In that Court in 2007 over 1500 migration applications were filed and more than 2000 migration matters were finalised. These figures were higher still in each of the three preceding years. Any review of the reasons as provided by a Federal Magistrate must necessarily take into account the sheer number of the cases that that Court has to resolve. But there is a point below which the economy of language with which reasons may be expressed cannot trespass.

34    Similarly, in SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 Flick J observed at [6] that the Federal Magistrate had “adopted a course of incorporating within his reasons for decision substantial extracts from the written submissions as filed on behalf of the Respondent Minister, and incorporated extracts from an affidavit that had been filed by the now Appellant and treated that extract as a submission”. His Honour observed that such a practice was to be discouraged, referring to SZMUV. His Honour continued as follows:

Although the reality may be quite different, such a practice only fosters the belief – perhaps otherwise unfounded – that no real, genuine and independent consideration has been given to the merits of the case and the arguments sought to be advanced…

35    In Li v Attorney General for New South Wales (2019) 99 NSWLR 630 the applicant sought judicial review of a decision dismissing an application pursuant to Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act). The applicant’s principal concern was that the reasons of the judge for rejecting his application were an edited version of the Attorney General’s submissions.

36    At [8] Basten JA (with whom White JA agreed) observed that:

…It may readily be understood that where, in adversary proceedings, a judicial officer simply adopts the submissions of one party (particularly in circumstances where that is the respondent) without expressly addressing the contrary position taken by the moving party there is a very real risk that an applicant would infer that the judge had failed to give independent and impartial consideration to the case presented by the applicant.

37    As far as the applicant complained that the reasons given were inadequate, Basten JA found (at [54]) that that was not the case. His Honour observed that had there been competing submissions between which the judge was required to choose it might have been correct to say that the adoption of submissions of one party without reference to those of the other and the explanation as to why the choice had been made might have revealed error.

38    At [122]-[123] Brereton J (in dissent) observed the following in relation to the incorporation of a party’s submissions into reasons for a decision:

122    It is not necessarily impermissible for a judge to incorporate, even extensively, with or without attribution, the submissions of one or both parties. In Juneja v Tax Practitioners Board, Besanko J concluded that reasons which comprised “the mostly uncritical adoption by the Tribunal of the Respondent’s submissions, copied verbatim”, did not mean that the tribunal had failed to bring its own mind to the issues; in so concluding, his Honour observed that the tribunal had referred in its reasons to the submissions for the other party. In Beaman v Bond, it was acknowledged that portions of the first instance judgment were replicated from a party’s submissions, but much of what was replicated was an uncontroversial summary of the law and uncontested facts and, in addition, the tribunal had also referred to the applicant’s submissions. McKerracher J (with whom Gilmour and Charlesworth JJ agreed) nonetheless observed:

“it is important that the parties be satisfied that an independent mind has been brought to bear on the debate. This confidence may be displaced if one is left with an impression that arguments have been embraced without serious consideration either to the contrary point of view or the application of an independent point of view.”

123    In Rodchompoo v Minister for Immigration and Border Protection, the substantial reproduction, without attribution, of the Minister’s statement of facts and contentions, including as to some matters of controversy, was not indicative of a constructive failure to exercise jurisdiction, because the reasons contained sufficient additional references, inserted by the tribunal, to indicate that the tribunal had considered evidence given at the hearing which was not included in the statement of facts and contentions. In SZMUV v Minister for Immigration and Citizenship, extensive reproduction of the Minister’s submissions, including on substantive matters, did not reveal error, because there was sufficient to indicate that the federal magistrate had given independent consideration to each ground. And similarly, in SZNRZ v Minister for Immigration and Citizenship, extensive reproduction of the Minister’s submissions did not constitute error, because the short additional reasons sufficiently disclosed the manner in which the federal magistrate had proceeded. However, that was in circumstances where the appellant did not appear when the appeal was called on for hearing. Flick J observed that the repetition of the reasoning and submissions of others had many dangers, including that “it may create in the mind of a disappointed litigant the belief that independent judicial consideration has not been given to the legal and factual merits presented for resolution”.

(Footnotes omitted.)

39    The Minister accepts that [20]-[21], [29]-[37] and [34]-[41] of DQF19 replicate the submissions filed on his behalf before the primary judge. However, he submitted, notwithstanding that, the primary judge did not fall into appealable error because of a failure to give adequate reasons for his decision and that the primary judge independently considered the grounds of review.

40    In order to determine whether that is so it is necessary to examine the primary judge’s reasons.

41    The first criticism of the primary judge’s reasons is in relation to [20]-[21] of DQF19. Those paragraphs are a summary, albeit succinct, of the Authority’s decision. They are not part of the consideration of the appellant’s ground of review and the primary judge’s reasons for ultimately rejecting it, but provide a background to that consideration. Given the nature of those paragraphs and their context, the primary judge’s adoption of the Minister’s summary could not amount to appealable error.

42    The next criticism of the primary judge’s reasons is in relation to [29]-[37] of DQF19 where the primary judge considered the first aspect of the appellant’s ground of review that the Authority’s decision was affected by bias. Those paragraphs are preceded by [27] and [28] wherein the primary judge said:

27    In oral submissions, counsel for the applicant developed the proposition that the Authority is not seen to have brought an impartial mind to the fact finding process, given heavy reliance upon the reasons for the delegate’s decision. Indeed, the applicant takes issue with both the adoption and expansion of adverse credibility findings made by the delegate. The applicant contends that an apprehension of bias having arisen, it was unreasonable for the Authority not to seek to dispel that apprehension by inviting the applicant to attend a further interview.

Resolution

28    I do not accept the applicant’s contentions. I accept that the Authority is under an obligation to conduct the review free of bias (or the apprehension of it) in the light of the statutory duty imposed by s 473FA of the Migration Act. I also accept that there may be circumstances in which the discretion conferred by s 473DC(3) needs to be exercised in order to avoid a finding of unreasonableness, because of the existence of an apprehension of bias in the absence of a positive exercise of the discretion. This is, however, not that case. First, it is clear from [7] of the Authority’s reasons that the Authority considered the applicant’s submissions in relation to the delegate’s decision and considered whether to invite him to furnish further information. Further, the Authority provided extensive reasons for making adverse credibility conclusions in relation to the applicant’s claims of political involvement, which were not limited to the reasoning of the delegate. In that regard, I agree with and adopt the Minister’s submissions.

43    In this part of his Honour’s reasons the primary judge first referred in a summary way to the oral submissions made on behalf of the appellant; and secondly set out his reasons, again in a summary way, as to why he rejected those submissions and the appellant’s grounds of review. As the Minister submitted the analysis of the appellant’s oral submissions and the rejection of them at [27]-[28] shows that the primary judge brought to bear his own thought process and an independent mind to this aspect of the ground of review. What followed was a further explanation of, and reasons for reaching, the principal conclusion that his Honour reached at [28] by reference to and by adopting the Minister’s submissions.

44    At [38] the primary judge dealt with the second aspect of the appellant’s ground of review noting that because of the conclusion he had reached in relation to its first aspect, the second aspect did not arise for consideration. To adopt the primary judge’s language, it fell away. In doing so the primary judge applied his own thought process and brought his own mind to bear on the issues as they arose for determination. His Honour was correct to conclude that the second aspect of the ground of review did not arise in circumstances where there had been a finding that the Authority’s decision was not affected by bias or an apprehension of bias. The Minister submitted, and I accept, that the primary judge’s conclusion that the second aspect of the ground of review fell away because the first aspect had been rejected was not a submission made by the Minister in his written submissions. In those circumstances it is apparent that it was a conclusion that the primary judge had reasoned for himself.

45    The final criticism is in relation to [39]-[41] of DQF19 which replicates [25] of the Minister’s submissions. Given the primary judge’s conclusion that the second aspect of the ground of review fell away, he was not in fact required to proceed to consider whether there was some other asserted basis for the contention of unreasonableness in the non-exercise of the discretion under s 473DC(3) of the Act. I apprehend that the primary judge did so in the event that his Honour was wrong about that conclusion and, perhaps, for completeness.

46    As was the case in SZMUV, notwithstanding the extent to which the primary judge placed reliance upon the Minister’s submissions and incorporated them in his reasons for judgment, there are aspects of his Honour’s reasons which demonstrate that he gave independent consideration to each aspect of the appellant’s ground of review and disclosed his Honour’s reasoning process.

47    In those circumstances, the appellant’s sole ground of appeal is not made out.

conclusion

48    For those reasons the appeal should be dismissed. As the appellant has been unsuccessful he should pay the Minister’s costs as agreed or taxed.

49    I will make orders accordingly.

Associate:

Dated:    21 April 2022