FEDERAL COURT OF AUSTRALIA

BLG19 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2024] FCA 506

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 3 October 2019 be set aside.

3.    The first respondent pay the appellant’s costs of this appeal, as agreed or taxed.

4.    The matter be remitted to be heard again in the Federal Circuit and Family Court of Australia.

5.    The appellant be granted a certificate in respect of the new trial under s 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth) stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of that new trial.

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

REASONS FOR JUDGMENT

GOODMAN J:

A.    INTRODUCTION

1    The appellant is a citizen of Yemen. He arrived in Australia on 4 September 2014 holding a student visa. He subsequently applied for a protection visa under s 65 of the Migration Act 1958 (Cth). That application was refused by a delegate of the first respondent Minister.

2    The appellant then sought merits review of the decision to refuse his application in the second respondent Tribunal. The Minister provided to the Tribunal a notification under s 438(1)(b) of the Act (s 438(1)(b) notification) with respect to particular information that the Minister’s Department had received. The Tribunal subsequently notified the appellant of some, but not all, of that information.

3    On 4 March 2019, the Tribunal affirmed the decision of the Minister and published its reasons for doing so: 1614430 (Refugee) [2019] AATA 3575 (T).

4    The appellant sought judicial review of the Tribunal’s decision by the (then) Federal Circuit Court of Australia. His application for judicial review was dismissed pursuant to orders made by the primary judge, following the giving of extempore reasons. No written reasons were published.

5    In this appeal, the appellant’s main ground of appeal is that the primary judge failed to provide adequate reasons. The appellant also contends that the primary judge erred in: (1) failing to find that the s 438(1)(b) notification was invalid because the information in question was not provided by the informant to the Department in confidence; and (2) holding that the Tribunal had observed the requirements of procedural fairness, reasonableness and ss 424A and 438 of the Act.

6    For the reasons developed below, the appeal should be allowed.

B.    BACKGROUND

7    The appellant’s claims for protection were summarised by an employee of the Department as follows:

The applicant claims that he fears he will face serious harm, and possibly be killed because:

•    his girlfriend’s family, who are from one of Yemen’s biggest tribes, the Yafe, will take revenge against him for engaging in pre-marital sex with their daughter, and ruining their daughters and their families dignity

•    his family consider he has violated tribal and Islamic norms and will harm him to protect their honour

•    he is a Liberal Muslim from a conservative Islamic society

•    the conservative and tribal Yemeni and Saudi society will target him for engaging in pre-marital sex, which is a serious sin which is against Islamic values and should be punished with death.

He claims that he fears he cannot get state protection in Yemen or Saudi Arabia, and fears that even if he moves to other parts of the country he will be targeted and killed because his tribe and his girlfriend’s tribe think that he has committed a serious offence against Islam and their society and tribe.

8    On 9 September 2016, following the filing of the appellant’s application to the Tribunal, the Minister, via a delegate, provided the s 438(1)(b) notification to the Tribunal:

NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION UNDER s 438 OF THE MIGRATION ACT 1958

I notify the Administrative Appeals Tribunal that paragraph 438(1)(b) of the Migration Act 1958 applies to the information in folio’s (sic) 67-74 of file number CLF2015/147. This information was provided in confidence ...

The Administrative Appeals Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438 (3) and (4) of the Migration Act 1958.

(emphasis in original)

9    Relevantly, folio 74 contained the following (as written):

Email: ...

Reporting Individual Or Business: Individual

Name of Individual Or Business: [BLG19]

Other Known Names: ...

Age Or Date Of Birth: 26

Gender: Male

Nationality: yemen

Address: pyrmont

Mobile Phone: ...

Provided Information On Individual Previously: No

Connection With Individual: ...

Specific Information: I believe the above mentioned individual is trying to apply for a refugee status by claiming to be a genuine refugee. ... he seems to be trying to fraud the immigration system. He is not a genuine refugee, he has a very wealthy family back home who are safe and well. more surprisingly he is also getting some advise and help from employees in the government agencies telling him how to defraud. ... that he is claiming newstart allowance while he is working at a convenience store in darlinghurst for 13$/hr cash-in-hand job and making 800 to 900 a week plus 275 a week from new start allowance. This is very unfair for the honest loving Australians. 1) he has a very wealthy family back home and he is not anywhere from a war area or in a dangerous situation that he needs refugee. 2)he is already planning to cheat the system with some help from the centerlink staffs. i wish you to take necessary actions to investigate .his case and be careful in making your decision in granting asylum to a non-genuine refugees. regards anonymous

Information Source: ...

(bold emphasis in original; underline emphasis added)

10    Most of the redactions in the previous two paragraphs were made by the Minister’s solicitor in support of a claim of public interest immunity, which claim was upheld by the primary judge and which is not challenged on this appeal.

11    On 19 December 2018, the Tribunal heard the appellant’s application. Approximately one-half of the hearing before the Tribunal, being the part of the hearing following an adjournment, was not recorded.

12    On 1 February 2019, the Tribunal wrote to the appellant via his solicitor. The Tribunal’s letter included:

In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that we have not made up our mind about the information.

The particulars of the information are:

The recording failed to record following an adjournment and I have decided to put the following adverse information to you in written form that covers any issues that have not been responded to already post-hearing:

…

3. Information was provided to the Tribunal that an unnamed source had claimed the applicant was trying to claim refugee status when he was not a genuine refugee and that he was claiming Newstart allowance while working in a convenience store. This information was covered by the s 438 certificate the applicant was advised about at hearing.

…

You are invited to give comments on or respond to the above information in writing.

(emphasis in original)

13    On 15 February 2019, in response to the Tribunal’s 1 February 2019 letter, the appellant’s solicitor provided the Tribunal with a statutory declaration, which included the following response to the paragraph numbered 3 in the Tribunal’s letter:

I respectfully submit that the Tribunal should not rely on any anonymous letters because if a person who makes the complaint should identify himself when making any complaint. If he does not want to disclose his identity he is credibility should be serious questioned and the anonymous allegation should not be taken into consideration.

In addition, in relation to information, submit and request the Tribunal to provide following information to me to be able to respond it

•    What is the date of Dob in Phone call?

•    Is that phone call in English or in a language other than English?

•    Was there any personal information to identify me such as Client ID or a passport?

If the letter is an anonymous phone call, I am not sure why the Tribunal needs to consider it because it has no authenticity.

I request the Tribunal to provide the above information before it takes any decision, so I would be able to respond to it.

14    On 5 March 2019, the Tribunal published its decision to affirm the decision under review and its reasons for that decision. In those reasons the Tribunal:

(1)    outlined the criteria to be satisfied for the grant of a protection visa, by reference to s 36 of the Act and associated definitional sections (T[3] to [7]);

(2)    set out at some length the claims made and the evidence relied upon by the appellant (T[9] to [57]). In the course of doing so, at T[31] and [50] to [51], the Tribunal stated:

31.    [The applicant] was advised about the existence of a s 438 certificate and that there were routine documents referred to but there was one piece of information that was relevant to his claim and this would be advised to him.

...

50.    [The applicant] was advised about the contents of the s 438 certificate that applied to him and that an unnamed source had stated that the person had met the applicant at a social event and that the applicant was trying to claim refugee status in Australia when he was not a genuine refugee. The person claimed the applicant came from a wealthy family who are safe and well back home, that he was nowhere near a war area or in a dangerous situation that required him being accorded refugee status. The person also claimed that the applicant was claiming Newstart allowance and also working in a convenience store in Darlinghurst for cash-in-hand money.

51.    [The applicant] claimed that he disagreed with the contents of the letter and that while his family may have been wealthy it was because his father had stolen his own brothers’ inheritance.

(3)    set out, again at some length, its analysis of the appellant’s claims and evidence (T[58] to [107]). In the course of doing so the Tribunal:

(a)    succinctly summarised the appellant’s claims for protection at T[60]:

The applicant is a 29 year old Sunni Yemeni who was born and lived in Saudi Arabia. He claimed that if he returned to Yemen he would be killed in revenge by his paternal uncles who were demanding their share of the inheritance that their father had appropriated; killed in an honour killing by the Yemeni tribes who were connected to the tribe of a former girlfriend with whom he had a sexual relationship in Saudi Arabia; killed because he was from the al-Akhdam tribe that was targeted by the Houthi government; and killed by the Houthis because there was a civil war and he was a Yemeni returning from Saudi Arabia who were fighting the Houthis.

(b)    noted a further claim by the appellant that he had fathered a child out of wedlock with a Colombian woman, which claim the Tribunal treated as relevant to how the appellant would be perceived in Yemen and Saudi Arabia (T[78]);

(c)    indicated that it did not accept the appellant to be a reliable, credible or truthful witness and found that the appellant had fabricated his claims for protection: T[66], T[81] and [96];

(d)    having had regard to all of the evidence, was not satisfied that the criteria set out in s 36 of the Act were satisfied (T[103] and [107]); and

(4)    concluded that as the criteria in s 36 of the Act had not been satisfied the decision under review should be affirmed (T[108] to [111]).

C.    The proceeding in the Court below

15    The appellant was self-represented before the Court below. His application for judicial review listed the following nine grounds (as written):

1.    applicant was denied procedural fairness.

2.    The tribunal failed to record part of the interview

3.    “ ” didn’t consider my mental healt illness

4.    “ ” didn’t consider the evidence was provided.

5.    “ ” asked for evidence after the hearing and when I provided he denied it

6.    Tribunal was doing the interview and talking by anger and hate

7.    tribunal caused me more stress during the interview and asked me questions not relevant to the case I resigned from my work because the way tribunal made me feel was bad

8.    Tribunal claimed failed to record part of the interview but I saw the staff setting up the device.

9.    tribunal member was telling me why I don’t live somewhere [illegible].

16    At the hearing before the primary judge, the Minister read an affidavit of Ms Lavanya Vasan, a solicitor in the employ of the Minister’s solicitor. Ms Vasan’s affidavit, which had been filed several weeks before the hearing, and which the appellant had seen, annexed a copy of the folios numbered 67 to 74, in a form which contained redactions on the basis of a claim for public interest immunity. A confidential annexure to that affidavit which was provided to the primary judge but not to the appellant contained unredacted copies of those folios.

17    The primary judge considered the confidential annexure and, as mentioned above, decided to uphold the claim for public interest immunity; and admitted the folios into evidence in their redacted form.

18    Following the hearing, the primary judge delivered extempore reasons and made orders which included:

(1)    an order that:

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

(2)    a notation that:

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

19    An audio recording of the oral reasons was made, but that recording did not capture all that the primary judge said. In this regard, I was informed by senior counsel for the Minister that during the delivery of his reasons for judgment the primary judge was not sitting in his chair, and was pacing, standing and moving away from the microphone.

20    A transcript of the recording was produced and placed onto a judgment template of the Circuit Court. That transcript has a series of ellipses which represent gaps where the words that were spoken were not transcribed. Consistent with order 4, the transcript (in the form of the incomplete judgment) was made available to the parties but was not settled by the primary judge.

21    Subsequently, and at the request of the Minister, the transcript provider for the Circuit Court produced a further transcript of the audio recording in which some (but not all) of the gaps in the original transcript were filled. I have admitted this revised transcript into evidence over the objection of the appellant, as it provides evidence of the oral reasons stated by the primary judge. Also in evidence on this appeal is the audio recording. I have reviewed each of the transcripts and listened to the audio recording.

D.     THE GROUNDS OF APPEAL

22    The appellant’s further amended notice of appeal to this Court, which was filed by consent, raises two grounds of appeal. For the reasons which follow, it is convenient to deal first with the second ground.

D.1    Second ground of appeal

23    The second ground of appeal is:

2.     The primary judge erred by failing to give adequate reasons for his Judgment.

Particulars

a.    The primary judge’s reasons are frequently incomprehensible: see pages 430 to 442 of the appeal book (AB)).

b.    Further, one of the key issues on the judicial review application before the primary judge – noting the additional duties upon the Court when a party is not legally represented and the inadequate explanation of the issues by the Court at AB 412 to 424.10 (esp 412.6 -.41) – was the effect of the certificate and notification under s 438 of the Act but the primary judge’s reasons:

i.    do not to address the question of whether the certificate was valid under s 438(1)(b) of the Act [noting this issue was raised in part by ground 2 of the appellant’s handwritten submissions at page 3 of the supplementary appeal book (SAB) and ground 7 of the appellant’s typed submissions at page 1 of the SAB];

ii.    do not to address the Prejudicial Information which was not put to the appellant (see Judgment at AB432[11] to AB433[14], AB439[44] to AB440[45], AB441[51] and noting the primary judge’s concerns and the parties’ submissions at AB 414.36 to 419.5 and 419.45 to .20 in relation to other information that was in the notification);

iii.    in so far as there are some “reasons” (eg at AB432[11] to AB433[14], AB439[44] to AB440[45], AB441[51]), these are only conclusionary statements, with no underlying reasoning.

(bold and underline emphasis in original)

24    The principles concerning the provision of adequate reasons for judgment are well-established and not in dispute on this appeal. They were addressed in Lopez v Gold Titan Pty Ltd [2022] FCAFC 117 at [89] to [92] (Stewart and Goodman JJ):

89    In Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54]-[55] it was explained by French CJ and Kiefel J that the public explanation of a judge’s reasons is central to the judicial function, both because it is necessary to enable any rights of appeal to be exercised and, even where there are no such rights, because of the nature of the judicial process. Their Honours then said the following (at [56]):

Gummow J in Grollo v Palmer [1995] HCA 26; 184 CLR 348 at 394] 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 [[2008] HCA 8; 232 CLR 438] 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 [at [89], citing Gleeson, “Judicial Accountability” (1995) 2 The Judicial Review 117 at 122]:

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.

90    That paragraph was adopted with approval in DL v The Queen [2018] HCA 26; 266 CLR 1 at [32] per the majority consisting of Kiefel CJ, Keane and Edelman JJ (other references omitted):

The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision” [Wainohu at [56]]. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.

91    The majority in DL v The Queen (at [33]) quoted with approval the following passage from AK v Western Australia [2008] HCA 8; 232 CLR 438 at [85] per Heydon J (reference omitted):

Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.

92    There is no suggestion in those, or other, authorities that the standard of adequacy of reasons in a civil case is any less stringent: see Wainohu at [55] (footnotes) and DL v The Queen at [130]. Nevertheless, the authorities recognise that the content and detail of reasons will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision…

25    In Australian Competition and Consumer Commission v Mazda Australia Pty Limited [2023] FCAFC 45, Mortimer J (as her Honour then was) and Halley J (with whom Lee J agreed) stated at [499]:

The adequacy of reasons will depend on the circumstances of the case and the nature of the proceedings: Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18 (Gray J, Fullagar and Tadgell JJ agreeing at 20); Beale v Government Insurance office of New South Wales (1997) 48 NSWLR 430 at 443 (Meagher JA); DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32] (Kiefel CJ, Keane and Edelman JJ); Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; [2019] FCAFC 53 at [177] (Murphy, Mortimer and O’Callaghan JJ). However, the court’s reasons “as a minimum…[must] be adequate for the exercise of a facility of appeal”: Soulemezis at 260 (Kirby P), 268-269 (Mahoney JA); Beale at 444 (Meagher JA); see also TechnologyOne Limited v Roohizadegan [2021] FCAFC 137 (Rangiah, White and O’Callaghan JJ).

(emphasis in original)

26    In Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18, Gray J (with whom Fullagar and Tadgell JJ agreed) said at 18:

The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:-

(a)    the appeal court is unable to ascertain the reasoning upon which the decision is based; or

(b)    justice is not seen to be done.

The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

27    The only reasons that were given by the primary judge were those delivered orally at the conclusion of the hearing. Upon delivery of those reasons, the primary judge discharged his judicial duty to give reasons: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; (2021) 272 CLR 329 at 342 to 343 ([25] per Steward J (Kiefel CJ, Keane, Gordon and Edelman JJ agreeing)); BFN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 12 at [43] (Markovic J); BGB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 11 at [37] (Markovic J); and the primary judge was not obliged to provide a settled version of the extempore reasons as transcribed: BFN19 at [44]ff. It follows that the failure to provide settled written reasons is not a basis for finding that inadequate reasons were given.

28    I turn now to consider whether the oral reasons were inadequate.

29    As noted above, I have listened to the audio recording and reviewed the transcripts. Having done so, I am satisfied that there are gaps in the reasons as delivered sufficient to prevent the appellant from understanding the bases upon which the application was dismissed. In reaching that conclusion, I have inferred that the parts of the reasons which were unable to be recorded because of the primary judge’s movements away from the microphone were also unable to be taken down in any meaningful way by those present. Those gaps also render this Court unable to make a meaningful assessment of all of the reasons given for the dismissal of the appellant’s application.

30    Further, in BBK19 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1001, a proceeding involving the same primary judge, Allsop CJ made the following observations:

19        The reasons that were provided were the, if I may use the expression, raw transcript of the day. There were gaps in that transcript. The transcript had not been corrected or settled. Those gaps did not in any way impinge upon the ability of Mr Zipser to propound the appeal on behalf of his client, nor did they impede Mr Kay Hoyle and those instructing him to propound the position of the Minister. In another case that may not be so.

20        It is not always necessary for a judge to use the transcript to create a formal document signed by his or her associate as reasons for judgment, but it is necessary for a judge, in any court, whether busy or not, to ensure that the transcript record is both substantially accurate and complete. It does not have to be perfect, but it should be substantially accurate and complete. No difficulty was caused in this case, but it is not difficult to envisage a case where an inadequate transcript or an incomplete transcript could lead to great difficulty and trouble and expense in obtaining the tape recording of the hearing and judgment (if it is available) and deciphering what was said. Seeing that the transcript of reasons for judgment is substantially accurate and complete is the responsibility of the judge delivering judgment, not the responsibility of the applicant, appellant, or Minister or the appeal court.

(emphasis added)

31    I respectfully agree with his Honour’s observations, which have a particular resonance in the present case. Had the primary judge, who had ordered that the transcript be provided to the parties, timeously checked that the transcript was substantially accurate and complete he would have realised its flaws and have been in a position to address those flaws; and the difficulties and injustice which have arisen would have been avoided.

32    The circumstances of the present case cannot but leave an impression that justice has not been seen to be done.

33    For the above reasons, the second ground of appeal should be allowed.

D.2    First ground of appeal

34    As the appeal is to be allowed it is unnecessary to deal with the first ground of appeal. In circumstances where the appellant’s counsel invited the Court not to do so in the event that the second ground was successful, I will refrain from doing so.

E.    FORM OF RELIEF

35    One available course is to remit the matter to the primary judge for the purpose of articulating his reasons for the orders that he made: see North East Equity Pty Ltd v Proud Nominees Pty Ltd [2010] FCAFC 60; (2010) 269 ALR 262 at 270 to 271 ([38] to [41]) (Sundberg, Siopis and Greenwood JJ); Lopez at [27] (Rares J) and [107] (Stewart and Goodman JJ). Neither party suggested that this occur and given the gaps in the recording are pervasive and the passage of time since the delivery of the primary judge’s reasons, I will remit the matter to the Court below for redetermination.

36    The appellant also seeks a certificate under s 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth) (Costs Act). That section provides in so far as is presently relevant:

8      Costs certificates—new trials

(1)     Subject to this Act, where, in a Federal appeal that succeeds on a question of law, the court that heard the appeal grants a new trial in a cause of a civil nature, the court may, on the application of a party to the cause, grant to the party a costs certificate in respect of the new trial.

...

(3)     The certificate that may be granted under subsection (1) or (2) to a party to a cause or to an accused person, as the case may be, by a court that has granted a new trial is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party or accused person in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party or accused person in relation to the new trial.

37    This is a “Federal appeal” within the meaning of s 3 of the Costs Act that succeeded on a question of law. I am satisfied that such an order should be made in circumstances where the appeal turned on the inadequacy of the reasons of the primary judge, a matter beyond the control of either party.

F.    CONCLUSION

38    For the reasons set out above, the appeal should be allowed. There is no apparent reason why costs should not follow the event. I will make orders accordingly.

Associate:

Dated:    16 May 2024