Federal Court of Australia

BYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 531

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed in the amount of $4,000.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant is a man from Karachi in Pakistan who arrived in Darwin by boat in May 2013. He appeals a decision of a judge of the Federal Circuit Court of Australia (as it was then known) by which his application for judicial review of a decision of the Administrative Appeals Tribunal in relation to his application for a protection visa was dismissed.

2    The appellant was unrepresented on this appeal. He appeared before this Court with the assistance of a Pashto interpreter, and was accompanied by a case worker from Baptcare in Brunswick, which provides accommodation and other services for people seeking asylum. The material that was before the Tribunal would support a conclusion that the appellant was illiterate at the time of the review by the Tribunal.

3    At the commencement of the hearing of the appeal the appellant handed up a letter dated 19 April 2019 addressed to my associate from Dr Tram Nguyen, a consultant psychiatrist with the Cabrini Outreach Asylum Seeker and Refugee Health Hub. Dr Nguyen stated that she had been seeing the appellant regularly since March 2017. Dr Nguyen reported that the appellant suffered symptoms of major depressive disorder and features of post-traumatic stress disorder and was on a high dose of an anti-depressant medication. Dr Nguyen reported that the appellant had, amongst other things, very impaired concentration and focus. Dr Nguyen identified other aspects of the appellant’s mental state that it is not necessary to set out in these reasons. Dr Nguyen did not state that the appellant was unable to attend and appear before the Court. I asked the appellant through the interpreter the purpose for which the letter was put before the Court, and in particular whether the appellant desired to proceed with the appeal, or whether he sought an adjournment. The appellant’s initial response was unclear, stating that he wanted justice. When pressed, the appellant stated that he wished to proceed.

4    Before the hearing of argument on the appeal commenced, I stood the matter down so that my associate could read to the interpreter for translation into the appellant’s own language the primary judge’s reasons, the notice of appeal, and the Minister’s written submissions. This process turned out to be difficult for all concerned, and was not likely to lead to practical fairness. After a period of time, I resumed the hearing and proposed that, instead, I would summarise the documents for the appellant. The appellant agreed to this course, whereupon I stood the hearing over until the following morning. Upon the resumption of the hearing I identified for the appellant through the interpreter the nature of the proceeding, the gist of the primary judge’s reasons, the grounds of appeal, and the substance of the Minister’s submissions.

Background

5    On 4 July 2013, the appellant applied for a protection visa. The application was made before the commencement on 16 December 2014 of the transitional provision in item 28 of Part 4 of Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). On 5 December 2014, a delegate of the Minister refused the appellant’s application.

6    On 9 December 2014, the appellant applied to the Refugee Review Tribunal for review of the delegate’s decision. From 1 July 2015, the proceeding before the Refugee Review Tribunal was taken to be a proceeding in the Migration and Refugee Division of the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth), Schedule 9, item 15AB.

7    On 28 June 2016, the Administrative Appeals Tribunal affirmed the decision of a delegate of the Minister to refuse the appellant’s application for a protection visa, rejecting the appellant’s claims for protection.

8    By orders made on 19 February 2021, the Federal Circuit Court dismissed the appellant’s amended application for judicial review of the Tribunal’s decision in the exercise of that Court’s jurisdiction conferred by s 476 of the Migration Act 1958 (Cth). By a notice of appeal filed 2 March 2021, the appellant appeals the primary judge’s decision.

The Tribunal’s decision

9    The Tribunal conducted a hearing which was initially listed for 14 April 2016 . That hearing was adjourned to 5 May 2016 because there were issues with the dialect of the interpreter.

10    Upon the resumption of the hearing before the Tribunal on 5 May 2016, the appellant appeared and gave evidence through an accredited Pashto interpreter. The appellant was represented before the Tribunal by a solicitor and migration agent with the Refugee and Immigration Legal Centre in Collingwood. The migration agent was given an opportunity to identify questions that he would like the Tribunal to ask the appellant and to identify any other matters that the Tribunal should raise. The migration agent was also given an opportunity to make written submissions.

11    Following the hearing, the Tribunal sent a letter to the appellant and his migration agent inviting comment on information that would be the reason or part of the reason for affirming the decision under review: see Migration Act, s 424A. In response, the appellant provided a statutory declaration, a submission from his migration agent of 26 pages, and a copy of three photographs.

12    On 28 June 2016, the Tribunal published its decision affirming the delegate’s decision to refuse a protection visa. The Tribunal furnished a statement of reasons that was thorough and clearly expressed.

13    At [17] of its reasons, the Tribunal referred to an unsigned report dated 13 April 2016 under the name of David Faiman of the Merri Community Health Services Generalist Counselling Team that had been submitted by the appellant’s migration agent. The report addressed a session with the appellant conducted by Mr Faiman following a referral by the migration agent. The report stated that the counselling team had been asked to pay attention to the following features of the appellant’s presentation –

•    the appellant’s current mental state;

•    whether he would have difficulties remembering and communicating information about his past;

•    how he would manage during a 3-4 hour long Tribunal hearing on 14 April 2016; and

•    whether there are any suggestions on how the Tribunal hearing could be conducted to better suit the appellant’s needs.

14    The report recorded the counsellor’s account of the appellant’s presentation at a session on 5 April 2016, stating (inter alia) that although the counsellor was not a diagnosing clinician, he would describe the appellant as being in a state of significant depression marked by depressed mood, decreased interest in life and surroundings, hopelessness and apathy, somatizing symptomology such as headaches, insomnia, fatigue and slowed reactivity, diminished concentration, feelings of worthlessness, and a loss of connection to self, community, past and future, and that he believed the appellant would experience all of this on a daily basis. As for the hearing, the counsellor recommended a maximum of 30 to 45 minutes hearing time before each break, and that although the appellant’s English was passable, that an accredited interpreter be used. The report also stated that a further session with the appellant had been scheduled for 12 April 2016, which the appellant did not attend. I note that the Tribunal’s reasons record that there were recesses during the course of the appellant’s evidence to the Tribunal.

15    The Tribunal found that the appellant was a Pashtun Sunni Muslim who was born in Karachi and who had spent all his life there with his family before leaving for Australia. The appellant had married in Karachi in about 2007, and had three children. The Tribunal accepted the following elements of the appellant’s claims –

(1)    the appellant had been a stallholder in a market in Karachi selling clothing;

(2)    the appellant moved the location of his clothing stall in 2008 as a result of communal violence in the market where the appellant then traded;

(3)    from 2008 to 2013, the appellant operated his clothing stall at a second location;

(4)    in 2012, the appellant’s younger brother was abducted and a demand for ransom made which the appellant’s family paid, securing his brother’s return; and

(5)    in about March 2013, the appellant received an extortion demand for money from an unknown source that led to his departure from Karachi and Pakistan.

16    The Tribunal considered that the abduction of the appellant’s brother and the extortion demand made upon the appellant were the work of criminal gangs that were not uncommon in Karachi at the time. The Tribunal did not accept a claim by the appellant that he was of interest to the Taliban on the ground that he and his wife were non-conforming Muslims, or that he sold Western clothing. In particular, the Tribunal did not believe the appellant’s claims that he had sold women’s clothing, and in particular lingerie and bikinis at his stall, referring to a photograph of the appellant’s stall in rejecting these claims. The Tribunal found that the reason that the appellant was a target of extortion was financial, and because his business was doing well. The Tribunal relied on country information to find that, since the appellant left Karachi, the general situation had changed dramatically, with a significant reduction in crime rates and organised criminal activity and violence.

17    The Tribunal made several adverse findings about the reliability of the appellant’s claims. Those findings were the subject of detailed reasoning. The Tribunal found that the appellant was prepared to provide and maintain false and misleading evidence about his nationality and identification documentation, which informed its rejection of a number of elements of the appellant’s claims. The credibility findings related particularly to claims made by the appellant that he was not a citizen of Pakistan, that he was either Afghani or stateless, and that his passport and national identity card were false documents. The Tribunal found that these claims were contrary to the information given by the appellant at his entry interview and in his visa application and inconsistent with other evidence including the genuine appearance of the appellant’s identification card. The Tribunal did not accept the appellant’s explanation for the introduction of his claim that he was Afghani or stateless. In particular, the Tribunal did not place weight on a submission that the interpreter at the entry interview had confused nationality and citizenship, stating that the appellant’s attempts to blame the interpreter at the entry interview for the fact that he maintained false evidence in his protection visa application undermined his reliability as a witness. The Tribunal referred to the appellant having admitted at the hearing that he had knowingly given false evidence at the entry interview, which made the appellant’s claims about the interpreter’s use of words difficult to understand and accept. In making its adverse findings about the reliability of the appellant’s evidence, the Tribunal referred to the counselling report of Mr Faiman to which I referred at [13]-[14] above. The Tribunal did not accept that any of the factors referred to by Mr Faiman explained or excused the concerns which, cumulatively, had led the Tribunal to find that the appellant’s evidence about not being a citizen of Pakistan was unreliable.

18    The Tribunal did not accept that there was a real chance that the appellant would suffer serious harm for reasons relating to events which occurred in Karachi before his departure in March 2013, and did not accept that there was a real chance that, in the event that the appellant returned to Karachi and sought to re-establish a business of the same type he previously operated, he would suffer serious harm for reasons relating to the operation of his business, or because he and his wife were non-conforming Muslims, or because he had resided in Australia for over three years and sought asylum in Australia. The Tribunal made corresponding findings in relation to the appellant’s claims for complementary protection.

The application to the Federal Circuit Court

19    The applicant’s application to the Federal Circuit Court was filed on 25 July 2016 and set out the following grounds –

1.    The decision of the Tribunal:

(a)    is affected by an error of law; and

(b)    denied the applicant procedural fairness.

2.    I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

20    At an interlocutory telephone hearing on 4 August 2020, the primary judge ordered the appellant to file and serve by 4.00 pm on 13 August 2020 an amended application, which was to include “detailed particulars of the ground or grounds of review sought to be relied upon by the Applicant at the hearing of the application for review”, and made orders for the filing of affidavit evidence and written submissions by the parties. At that time, the appellant was represented by a solicitor who appeared on the appellant’s behalf. A notice of withdrawal of practitioner was filed shortly after on 21 August 2020, which was eight days after the amended application was due to be filed.

21    A further hearing by telephone occurred before the primary judge on 4 September 2020. On that occasion. the appellant appeared on his own behalf with the assistance of an interpreter. The judge ordered that the matter be adjourned for final hearing to 11 November 2020 and also ordered that the matter be listed for directions on 21 September 2020. In addition, the judge made the following order –

If the First Respondent does not seek dismissal of the proceeding pursuant to Rule 13.03B of the Federal Circuit Court Rules 2001 (Cth), the First Respondent is to file and serve an affidavit on the question as to whether or not a litigation guardian can be appointed to act on behalf of the Applicant and, if so, by what means, by 4.00pm on 18 September 2020.

22    Rule 13.03B of the Federal Circuit Court Rules 2001 (Cth), as then in force, empowered the Court to stay or dismiss a proceeding as to the whole or any part of the relief claimed in the event of, inter alia, the failure by an applicant to comply with an order of the Court in the proceeding. See now, Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.04(1)(a), 13.05(1). 

23    On 10 September 2020, the primary judge published reasons for judgment in respect of the orders made on 4 September 2020. The judge stated that the matter had been listed for final hearing on 4 September 2020. The judge noted that no amended application had been filed by the appellant as ordered on 4 August 2020, and stated that as such the appellant was clearly in default of the orders, citing the definition of default in r 13.03A(1) of the Federal Circuit Court Rules. The judge referred to a report that the Court had received from the psychiatrist Dr Nguyen, to whom I referred earlier. The report stated in part that the appellant was unable to represent himself at the hearing fixed that day based upon his psychiatric condition. The judge stated that he was not minded to proceed with the hearing in the light of the psychiatric evidence, but added that it was the Court’s view that “the situation cannot go on forever, in terms of the appellant presenting the Court with medical evidence suggesting that his matter ought to be adjourned again and again because of his psychiatric state”. The judge then stated that he had raised with the solicitor for the Minister whether a litigation guardian should be appointed to represent the appellant, and recorded that the appellant had indicated that he did not have a relative or a friend whom he believed would be able to consent to act as his litigation guardian. Finally, the judge noted that the solicitor for the Minister did not have instructions to seek dismissal of the proceeding pursuant to r 13.03B(1) of the Federal Circuit Court Rules.

24    On 16 September 2020, the Minister filed written submissions in the Federal Circuit Court relating to the appointment of a litigation guardian. The Minister submitted that it was for the appellant to apply to have a litigation guardian appointed, that the appellant had not identified anyone who could consent to the appointment as required by r 11.11(2) of the Federal Circuit Court Rules, and that the medical evidence did not indicate that the appellant was incapacitated in that he did not understand the nature and possible consequences of the proceeding or was not capable of adequately conducting, or giving adequate instruction for the conduct of the proceeding so as to be unable to represent himself at the hearing that was fixed for 11 November 2020.

25    On 21 September 2020, a further interlocutory hearing occurred by telephone with the appellant appearing with the assistance of an interpreter. The hearing was transcribed, and the judge ordered that a copy of the transcript be sent to the appellant in the Pashto language. At this hearing, the judge stated that the appellant was in default of the orders made on 4 August 2020 that had required that he file an amended application for review setting out, with detailed particulars the reason or reasons why the Administrative Appeals Tribunal was wrong. The judge stated that the matter would remain listed for hearing. I note that there is a slip recorded in the transcript where the judge is recorded as stating that the matter would remain listed for 4 November 2020, whereas the orders made on 4 September 2020 provided for the hearing to be adjourned to 11 November 2020.

26    On 22 October 2020, the appellant filed an amended application which advanced the following grounds for judicial review of the Tribunal’s decision –

l.    The Administrative Appeals Tribunal failed to properly consider all my claims

2    The Administrative Appeals Tribunal misinterpreted the law

3.    The Administrative Appeals Tribunal made a decision for which there was no evidence

4.    My psychological condition meant that I was denied a real and meaningful opportunity to give evidence at the Tribunal hearing.

27    Although it does not appear whether the primary judge formally extended time for the appellant to file the amended application, it appears that it was accepted for filing by the Federal Circuit Court, and in the reasons for judgment published 19 February 2021 the primary judge addressed the grounds of review set out in the amended document.

28    The final hearing that was listed for 11 November 2020 was vacated by orders made by the judge in Chambers and re-fixed for 4 February 2021. The orders of 11 November 2020 noted that in light of the health protocols resulting from the COVID-19 global pandemic at the time of the making of the orders, the Court was unable to facilitate the fair hearing of the matter, thereby resulting in the adjournment.

29    The hearing then took place on 4 February 2021 with the primary judge sitting in Brisbane. Orders that were made by the primary judge on 4 February 2021 that adjourned the matter for the handing down of judgment, and recorded that both the appellant and the solicitor for the Minister appeared by video-link. The appellant stated to this Court that he had the assistance of an interpreter at the hearing of his application before the primary judge.

The primary judge’s decision

30    On 19 February 2021, the primary judge dismissed the appellant’s application. His Honour’s reasons for judgment (J) are published: BYP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 291.

31    The primary judge rejected each of the grounds of review in the amended application. In relation to grounds 1, 2, and 3, the primary judge considered that the appellant had failed to provide detailed particulars of the grounds, and at J[10], his Honour stated that the appellant was in default of the orders made on 4 August 2020 –

10    The applicant was in default of the orders of the Court made on 4 August 2020 in that the applicant:

(a)    failed to file an Amended Application for Review by 4.00pm on 13 August 2020;

(b)    failed to provide detailed particulars of grounds 1, 2 and 3 as set out in the Amended Application for Review filed on 22 October 2020.

32    It is a notable feature of the primary judge’s reasons for judgment that at J[11], and over the course of about ten pages, his Honour set out verbatim the whole of [35] to [45] of his Honour’s reasons for judgment in an earlier decision: FGG19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 270 (FFG19). In turn, [37] of FGG19 set out verbatim the whole of [17]-[21] of his Honour’s reasons for judgment in Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCCA 92 (Kaur). The extracted passages from Kaur themselves contained block quotations from several decisions of this Court together with block quotations of [4]-[9] of his Honour’s decision in DUN16 v Minister For Immigration [2019] FCCA 2951 (DUN16). In turn, [6] of his Honour’s reasons for judgment in DUN16 set out [309]-[316] of the reasons for judgment of Beazley JA in Hamod v New South Wales [2011] NSWCA 375 concerning a court’s duty to an unrepresented litigant, which in turn set out a passage from the reasons of the Full Court of this Court in Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446. In all, his Honour’s ten-page quotation of authority descended to five levels.

33    It would have been better if the primary judge had set out in a readily comprehensible and concise manner the approach that he was applying, and simply explained what he did. This would not have required the extensive quotation of authority, and would have avoided some of the ambiguities in his Honour’s reasons that I have had to consider.

34    In Kaur at [17]-[19], his Honour set out passages from three decisions of this Court involving unparticularised grounds of appeal, namely: SZRKF v Minister for Immigration [2020] FCA 1389 at [22] (Farrell J); CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 179 at [23]–[26]; and CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20]–[22]. In turn, those decisions cite other authorities that have held that a ground of appeal directed to claimed jurisdictional error by the Tribunal that is put with a high degree of generality and which lacks any degree of specificity or particulars may be rejected on that basis.

35    In the primary judge’s decision in DUN16, which his Honour cited in Kaur, which in turn his Honour cited in FGG19, his Honour set out the following passages from the reasons for judgment of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (DQQ17) –

[8]    The consequences of a failure to particularise a ground will depend upon the circumstances. Where a legally represented party has been afforded an opportunity to remedy the failure to comply then it is to be expected that the ground would be dismissed for failure to comply with the Rules and without any consideration as to whether there may be underlying merit.

[9]    However, it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister’s discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.

[10]    Further, in these cases, a submission by counsel appearing for the Minister that a decision under appeal is not attended with any doubt, or sufficient doubt or error must reflect the independent judgment of counsel after considering all of the materials in performance of counsel’s paramount duty to the Court. It is not to be based upon the lack of particularisation of grounds by an appellant who is appearing in person.

(My emphasis.)

36    Although the primary judge included extensive quotation of authority, his Honour did not include in his reasons for judgment in the present case, or in his Honour’s reasons in Kaur, the passages from the reasons for judgment of Colvin J in DQQ17 that I have set out above and which he had cited in DUN16. The passages have been cited in other decisions of this Court: GKH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1125 at [26] (Banks-Smith J); BIK18 v Minister for Home Affairs [2019] FCA 788 at [3] (McKerracher J); BTU17 v Minister for Immigration and Border Protection [2019] FCA 538 at [28] (Thawley J); and EHB17 v Minister for Home Affairs [2018] FCA 1280 at [27] (Thawley J). See also, BBT16 v Minister for Home Affairs [2018] FCA 1225 at [4] and [5] (Colvin J), and WZAVK v Minister for Immigration and Border Protection [2016] FCA 760 at [24] where Jackson J took the course of asking an unrepresented appellant to identify what mistakes he considered the primary judge had made.

37    In the primary judge’s reasons in DUN16, after his Honour cited Colvin J in DQQ17, his Honour stated at [4] that in that case he attempted to elicit from the applicant particulars of the applicant’s case, recording the particulars in a coherent form and for the applicant’s benefit so as to enable the matter to proceed to a final hearing. It is unclear whether his Honour’s adoption of his reasons in FGG19 and its multi-level citation of authority carried with it the implication that his Honour adopted the same course in this case. The primary judge’s reliance on the unfiltered quotation of authority as his reasons for rejecting grounds 1, 2, and 3 had the result that these matters were not addressed.

38    There is no inconsistency between the guidance of Colvin J in DQQ17 concerning the provision to an unrepresented applicant of an opportunity to articulate a claim and requesting counsel for the Minister to address the matter as an officer of the Court acting for a model litigant, and the inability of a reviewing court to engage with a claim where no identifiable error is alleged or is otherwise apparent: see EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12] (Farrell J), and ANL15 v Minister for Immigration & Border Protection [2019] FCA 1365 at [24] (Jackson J) where the latter point is discussed. And the guidance of Colvin J in DQQ17 sits with other guidance, including that of McKerracher J in COS16 v Minster for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 112 (COS16) at [20] that –

It is well-established that it is not the role of the Court to examine the reasons of the primary judge in detail in order to identify potential grounds of appeal: see, for example, BGZ15 v Minister for Immigration & Border Protection [2017] FCA 1095 per Flick J (at [10]). However, in the case of an unrepresented appellant, it is preferable for the Court to review the reasons under consideration and to determine whether there is any self-evident error as to the manner in which the Court or Tribunal has resolved the grounds of review previously advanced and which it would appear are sought to be re-agitated on appeal: see BGZ15 (at [11]). However, such an examination for an obvious error may fall well short of the Court parsing and analysing an administrative decision with a view to identifying a potential argument as to jurisdictional error. In the absence of self-evident error, there is no duty or function of the Court to articulate a question of law or to identify an error.

39    The primary judge’s quotation at J[11] of his Honour’s earlier reasons in FGG19 included the following paragraphs –

[38]    The Court finds that the grounds of review as set out in both the Originating Application for Review and the Amended Application for Review were so lacking in particularity as to warrant dismissal of the applicants’ claims. It is unfair to expect the first respondent to meaningfully engage with the applicants’ claims when they are so wide and un-particularised.

[39]    The Court, likewise, is at the same disadvantage. The applicants had twice been ordered to file an amended application for review which contained detailed particulars of the ground or grounds on which it was asserted that the Tribunal had erred. Having failed to do so, the only way for a possible resolution of such default would have been for the Court to order that the applicants again file and serve a properly particularised Further Amended Application for Review. That would necessarily have required the further adjournment of the hearing before this Court. This Court is not prepared to further adjourn the hearing.

40    The quotation from FGG19 at J[11] terminated with the following passages –

[44]    The Court finds that the applicants have twice failed to comply with orders of the Court requiring them to properly particularise their claims. They were in default as provided for in rule 13.03A(1)(a) of the FCC Rules.

[45]    In the exercise of its discretion, and for the reasons set out above, the Court also considers that this is an appropriate matter where the applicants’ claims ought to be dismissed pursuant to the provisions of rule 13.03B(1)(a) and r. 13.03B(1)(c) of the FCC Rules. Such Rules provided as follows:

“Rule 13.03B – Orders on default

(1)    If an applicant is in default, the Court may order that:

a.    the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or

…

c.    if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.”

41    The primary judge then stated at J[12]-[13] –

12    This Court is unprepared to grant an adjournment to the applicant so as to enable him to possibly provide particularised details of his grounds of review, particularly in circumstances where he was substantially in default of a Court order directed to that very requirement. [Footnote omitted.]

13    For the same reasons as set out in FGG19, the Court dismisses each of Grounds 1, 2 and 3 of the Amended Application for Review because of the lack of particularity in such grounds.

42    At the end of J[12], his Honour cited the decision of Abraham J in Abela v Minister for Home Affairs [2021] FCA 96, which was an instance of summary dismissal of a claim brought in the original jurisdiction of this Court, the relevance of which is not readily apparent.

43    The primary judge’s reference at J[13] to the reasons for judgment in FGG19 as the basis for rejecting grounds 1, 2 and 3, invites a number of questions. One important question is whether, following the final hearing, his Honour dismissed part of the appellant’s claim in exercise of the summary power under r 13.03B of the Federal Circuit Court Rules on the ground that the appellant was in default of interlocutory orders for the provision of particulars of his grounds of review. That would be a course against which Colvin J counselled in DQQ17. There was no submission in any of the three sets of submissions filed on behalf of the Minister in the Federal Circuit Court which are in the appeal book that the summary power under r 13.03B of the Federal Circuit Court Rules should be exercised. Instead, the Minister addressed the substance of grounds 1, 2, and 3 of the appellant’s amended application, submitting: (1) the appellant had not identified any claims that the Tribunal had failed to consider; (2) the appellant had not identified how the Tribunal had misinterpreted the law; and (3) the appellant had not demonstrated that the Tribunal acted on no evidence.

44    Although the primary judge’s reasons were not expressed as clearly as they might have been, I think the better view is that J[13] should be understood as stating that the primary judge rejected grounds 1, 2, and 3 because there was a lack of particularity to those grounds. That was a course that was open to the primary judge having regard to the authorities of this Court which his Honour cited in Kaur, and to which I referred at [34] above. On balance, I do not interpret his Honour’s references to FGG19 as transforming the rejection of the appellant’s grounds of review as the giving of summary interlocutory judgment on the basis that the appellant was in default of the orders that had been made on 4 August 2020. The reference to those orders was to demonstrate that prior to the hearing of the application the appellant had been given an opportunity to articulate his claim with particularity and that he had not done so.

45    In relation to the rejection of the appellant’s fourth ground of review, the primary judge held as follows –

14    As to Ground 4 of the Amended Application for Review, the only complaint made in such ground was that at the time of the Tribunal hearing, the applicant was psychologically unfit to appear before the Tribunal so as to, presumably, make appropriate submissions on his behalf. He claimed that he was denied a real and meaningful opportunity to give evidence. There is no merit to such ground.

15    There is no indication in the material before the Court that the applicant, or his migration agent, raised the question of the applicant’s capacity to appear before the Tribunal, or otherwise asked for an adjournment of the Tribunal hearing. There was no medical evidence presented to the Tribunal warranting the adjournment of the hearing. Even if a medical report had been produced, it would have had to have set out in some detail why the applicant would have been unable to appear before the Tribunal at the hearing. [Footnote omitted]

16    There is no merit to the applicant’s claim that he was psychologically unable to appear before the Tribunal at the time of the hearing, nor to the assertion that he could not make appropriate submissions on his own behalf at such hearing.

46    The primary judge then addressed at J[17] to [23] the Tribunal’s reasons generally and consistently with the guidance of McKerracher J in COS16 which I set out at [37] above concerning the examination of reasons for some self-evident error. His Honour outlined features of the Tribunal’s path of reasoning and held that: (1) the Tribunal had considered all the appellant’s claims at length; (2) it could not be said that the Tribunal’s decision was irrational or illogical in the sense explained by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130], [131] and [135]; (3) it could not be considered that the Tribunal’s decision was legally unreasonable or lacking an evident or intelligible foundation, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [66] and [76] (Hayne, Kiefel and Bell JJ); and (4) it could not be said that the Authority failed to make an obvious inquiry about a critical fact, as was the subject of consideration in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25]-[27] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

The appellant’s grounds of appeal to this Court

47    The appellant’s grounds of appeal to this Court correspond to the four grounds of review that were before the primary judge –

1.    The Federal Circuit Court erred in failing to find that the Administrative Appeals Tribunal failed to properly consider all my claims.

2.    The Federal Circuit Court erred in failing to find the Administrative Appeals Tribunal misinterpreted the law.

3.    The Federal Circuit Court erred in failing to find the Administrative Appeals Tribunal made a decision for which there was no evidence.

4.    My psychological condition meant that I was denied a real and meaningful opportunity to give evidence at the tribunal hearing.

Appellant’s submissions

48    The appellant did not file any written submissions, as he was permitted by orders of this Court. At the hearing, I asked the appellant to tell the Court what errors he considered the primary judge had made in determining his claims in support of his application for judicial review. In response, the appellant did not advance any submissions that addressed jurisdictional error by the Tribunal, or any error by the primary judge. The appellant instead addressed the merits of his claim for a protection visa stating, amongst other things, that he had been living here for 12 to 13 years, that he did not want to go back to Pakistan, that it would be dangerous for him involving a threat to his life, and that he wanted justice.

49    I then took the appellant through each of his four grounds of appeal, and asked him to address them. In relation to the first ground, the appellant stated that the Tribunal did not consider his case thoroughly, and that he had mental issues involving memory loss. In relation to the second ground, the appellant did not identify any way in which the Tribunal had misinterpreted the law. As to the third ground, the appellant addressed again the merits of his claim for a protection visa, stating that he was not lying and that there had been a threat to his life. As to the fourth ground of appeal, the appellant referred again to his mental health, stating that he was not stable and that he forgets things. He stated that the Tribunal was asking questions and discussing things that he did not understand.

Consideration

50    As to grounds of appeal 1, 2 and 3, upon my review of the primary judge’s decision and the material before the Court, I consider there to be no error in the primary judge’s rejection of those grounds on the basis that they lacked particularity. Further, the appellant’s grounds of appeal 1, 2, and 3 are high-level and do not identify any underlying jurisdictional error by the Tribunal. In particular: (1) the appellant has not identified any claims that he made which the Tribunal failed to consider; (2) the appellant has not identified how it is claimed the Tribunal misinterpreted the law; and (3) in order to succeed on a “no evidence” ground the appellant would have to identify some material finding by the Tribunal for which there was no evidence at all, which he has failed to do.

51    As to the fourth ground of appeal, it is plain that the Tribunal did consider the matters in the report of Mr Faiman to which I referred at [13] and took them into account. There is no sufficient basis for saying that the claims in this letter were not considered, or that the appellant was denied procedural fairness, especially given that the appellant was represented before the Tribunal by a legally qualified migration agent.

52    For completeness, I have reviewed the Tribunal’s reasons myself and I am satisfied that there was no self-evident error: see COS16 at [20].

Conclusion

53    There was no error in the primary judge’s orders, and the appeal will be dismissed with costs.

Associate:

Dated:    26 May 2023