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[2015] FCA 804
appellant. The appellants' application to pursue additional grounds of appeal dismissed; the Minister's application to file a notice of contention out of time dismissed; appeal allowed; matter remitted to the...
A family from Bangladesh challenged a Tribunal decision refusing them protection visas. They argued the Tribunal never properly heard the daughter's separate fear of sexual assault and did not correctly follow the statutory process for putting the father's earlier inconsistent statements to him. The Federal Circuit Court dismissed their case in a single day but its written reasons skipped the daughter's argument entirely and gave a confusing explanation on the statements issue that mixed up what the father had actually said. On appeal the Federal Court refused to let either side run brand-new arguments that had never been before the lower court, because migration law is meant to give one proper trial and one proper appeal, not turn the appeal court into a first-instance decider. The appeal was allowed, the flawed hearing was declared a mistrial, and the whole judicial review was sent back to the Federal Circuit Court to start again before a different judge. Costs were reserved until the end of that second hearing.
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2,847 words · generated 24/04/2026
3 cited instruments linked from this judgment.
The appellants, a Bangladeshi family unit comprising husband (AAM15), wife (AAN15) and daughter (AAP15), arrived in Australia on 11 July 2013 and lodged protection visa applications on 7 August 2013. A delegate refused the visas on 20 March 2014. The Refugee Review Tribunal (now the Administrative Appeals Tribunal) held a hearing on 24 November 2014 and, on 27 January 2015, affirmed the delegate's decision. Two particular aspects of the Tribunal's reasoning were later challenged. First, the Tribunal was said to have failed to give the daughter any real opportunity to give evidence and make submissions about her distinct claim that she feared sexual assault by persons seeking revenge against her father if the family were returned to Bangladesh. Second, the Tribunal was said to have used two prior inconsistent statements the husband had made to the Department without complying with the procedural safeguards in s 424A of the Migration Act 1958 (Cth). One inconsistency concerned the timing of the daughter's attack and when the husband decided to leave Bangladesh; the other concerned his failure to mention that the family had been living in hiding, moving between addresses.
On 24 February 2015 the family commenced judicial review proceedings in the Federal Circuit Court. That Court heard the matter on 11 May 2015 and delivered an ex tempore judgment dismissing the application the same day. The Federal Circuit Court dealt with the daughter's claim by addressing, and rejecting, an argument that had not been put to it; namely, that the father had been denied an opportunity to give evidence. It did not engage with the daughter's separate position at all. On the s 424A ground the Federal Circuit Court stated at [12] of its reasons that a letter of 10 December 2014 had given clear particulars, that the Tribunal had raised credibility issues under s 424AA at the hearing, and that the applicant had admitted to using a false passport. However, the reasons appeared to proceed on the mistaken basis that the applicant had made a statement to the Department that he himself was "not a truthful witness", a proposition neither the Tribunal nor the parties had ever advanced. The last three sentences of [12] could not be reconciled with the balance of the paragraph, leaving Perram J unable to discern the actual chain of reasoning.
The family appealed to the Federal Court. Their notice of appeal repeated the two original grounds (recast as grounds 2, 3, 4 and 6) but also introduced two entirely new grounds (grounds 1 and 5) that had never been run below. The Minister did not attempt to defend the Federal Circuit Court's reasons. Instead he sought leave, out of time, to file a notice of contention that would have adduced further evidence and submissions answering both original grounds on the merits. Under r 36.24 of the Federal Court Rules 2011 (Cth) the notice of contention should have been filed by 17 March 2015; it was not. Both sides therefore required leave: the appellants under the principles governing new grounds on appeal, the Minister under r 1.39(a).
Perram J heard the appeal on 6 August 2015 and delivered judgment the same day. At [11] his Honour concluded that the Federal Circuit Court's reasons on the s 424A ground were inadequate because "I am unable to perceive what the process of reasoning is and hence cannot conduct the exercise of determining whether that process contains error." At [4] he noted that the daughter's claim argument had simply not been dealt with. His Honour then examined the wider statutory context. Section 476A of the Migration Act expressly removes the Federal Court's original jurisdiction in migration judicial review matters. Part 8 of the Act is structured to provide one substantive trial in the Federal Circuit Court, one substantive appeal to the Federal Court, and only limited further review in the High Court by special leave under s 35A of the Judiciary Act 1903 (Cth). To grant leave for the new grounds or the notice of contention would, in substance, require the Federal Court to decide the entire case at first instance. That would thwart the legislative design and deny the appellants a layer of appellate scrutiny. In the "quite extreme" circumstances where the Minister advanced no defence of the reasons below, Perram J refused both applications for leave, allowed the appeal, set aside the Federal Circuit Court orders, and remitted the judicial review proceeding for a new hearing before a differently constituted court. Costs of the mistrial and of the appeal were ordered to abide the outcome of the second trial. The name of the second respondent was formally corrected to "Administrative Appeals Tribunal".
Perram J's reasoning rests on three interlocking propositions, each grounded in the text of the judgment. First, the Federal Circuit Court had not discharged its judicial obligation to address the arguments actually advanced. At [5] the primary judge noted that paragraphs [9] and [10] of the Federal Circuit Court reasons answered a contention about the father's opportunity to give evidence when the ground before that Court had been about the daughter's separate claim of fearing sexual assault. This was not a mere slip; it meant one entire ground had been left undecided. That alone constituted error.
Second, and more centrally, the reasons given at [12] of the Federal Circuit Court judgment were legally inadequate. Perram J carefully parsed that paragraph at [6]–[10]. The Tribunal had relied on two specific inconsistencies: (a) the husband told the Department he decided to leave Bangladesh only after his daughter was attacked, yet told the Tribunal the attack occurred in April 2011 and he waited until April 2013 to leave ([21] of the Tribunal reasons); and (b) the husband told the Tribunal the family had lived in hiding moving between addresses but had not mentioned that fact in his Departmental interview ([30] of the Tribunal reasons). The Federal Circuit Court appeared to believe the applicant had made an oral statement that he was "not a truthful witness" and that this admission, together with the admitted use of a false passport, meant no separate s 424A letter was required. No such statement existed. The references to a 10 December 2014 letter, a transcript, s 424AA, and "clear particulars" could not be reconciled into a coherent chain. Because these were court reasons, not tribunal reasons, only a limited degree of latitude was available. At [11] Perram J therefore held that he could not discern the process of reasoning and, for that reason, could not perform his appellate function of checking for jurisdictional error. Inadequate reasons were themselves an error of law.
Third, once the above errors were identified, the question became what remedy the Federal Court should grant. Both sides invited the Federal Court to decide the merits afresh: the appellants by adding two new grounds, the Minister by a late notice of contention that answered the original grounds on the evidence. Perram J declined both invitations. He located the refusal in the statutory scheme. Section 476A expressly strips the Federal Court of original jurisdiction in these matters. The evident purpose of that provision, read with Pt 8, is to ensure one proper trial in the Federal Circuit Court followed by one proper appeal. If the Federal Court were to grant leave it would, in substance, become the trial court. That would deny the appellants the layered scrutiny the statute contemplates, because High Court review would then be available only by special leave on the narrow grounds in s 35A of the Judiciary Act. At [14] Perram J described the situation as "quite extreme and unlikely to recur". In those circumstances the proportionate response was to allow the appeal, declare a mistrial, and send the matter back for a fresh hearing before a different Federal Circuit Court judge. Costs were reserved so that the ultimately successful party at the second trial would recover the costs thrown away by the first, flawed hearing.
The Minister's "very proper and helpful submissions" are acknowledged at [17], but they could not overcome the structural difficulty created by the Federal Circuit Court's inadequate reasons and the legislative policy against turning an appeal into a de facto first-instance hearing.
Before this judgment, the law on adequacy of judicial reasons in migration matters was settled in two respects. First, a court (as distinct from an administrative tribunal) must give reasons that disclose the actual path of reasoning so that an appellate court can determine whether error has occurred. Second, the Migration Act's judicial review regime is deliberately structured to confine the Federal Court to appellate review except in the limited classes of case where original jurisdiction is retained. What this judgment clarified is the interaction between those two propositions when the Federal Circuit Court's reasons are so unclear that the appellate court cannot even begin the error-identification exercise, and when the Minister does not seek to defend those reasons but instead asks the appellate court to decide the merits for the first time.
After the judgment the legal position is that, in the rare case where the Federal Circuit Court has failed to deal with a ground and has given reasons from which no intelligible process of reasoning can be extracted, the Federal Court will allow the appeal and remit rather than itself embark on a de facto first-instance determination, at least where doing so would require entertaining new grounds or a late notice of contention. The statutory command in s 476A is treated as a powerful discretionary factor against granting leave in such circumstances. The judgment also reinforces that the distinction between court reasons and tribunal reasons matters: the former receive less latitude precisely because they are expected to model transparent judicial method. Nothing in the judgment alters the content of the s 424A or s 424AA obligations themselves; it is directed solely at the Federal Circuit Court's handling of arguments about those obligations.
Paragraph [4]: "In summary, the Federal Circuit Court did not deal with the first argument and its reasons for rejecting the second argument were not adequate in the requisite sense."
Plain English: The lower court ignored one of the family's two main complaints and gave such a muddled explanation for rejecting the other that no one can tell why it thought the Tribunal had done nothing wrong.
Paragraph [11]: "I am unable to determine how the Court reasoned. ... I feel constrained to conclude that [12] does not constitute adequate reasons for disposing of ground 2: I am unable to perceive what the process of reasoning is and hence cannot conduct the exercise of determining whether that process contains error."
Plain English: After reading the lower court's paragraph several times, I still cannot follow the logic. Because this is a court's judgment, not a tribunal's, I cannot simply guess what it meant. Without knowing the reasoning, I cannot check whether that reasoning was legally correct. That failure is itself an error.
Paragraph [14]: "Section 476A of the Act explicitly removes this Court's original jurisdiction in cases of this kind. ... If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny."
Plain English: Parliament has said the Federal Court cannot hear these cases from scratch. If we agree to decide all the new arguments and the Minister's new evidence, we are effectively acting as the first court. That would cheat the family of the two-level review Parliament promised them.
Paragraph [15]: "The circumstances which generate this situation are quite extreme and are unlikely to recur – it is rare in appellate proceedings for a respondent not to seek to rely upon any part of the trial court's reasons."
Plain English: This is an unusual mess. Normally the government at least tries to defend the lower court's decision. Because that did not happen here, we should not stretch the normal appeal rules to fix it.
Paragraph [16]: "In those circumstances, I decline to grant leave either to the applicant to pursue his additional grounds or to the Minister to file his notice of contention. The appeal will be allowed and the matter remitted to the Federal Circuit Court for trial."
Plain English: No new arguments from either side. The appeal succeeds. The case goes back for a proper hearing before a different judge.
This judgment will be engaged whenever three elements coincide. First, the Federal Circuit Court must have failed to address one of the arguments actually put to it, or must have given reasons so internally contradictory or opaque that an appellate court cannot discern the path of reasoning. The example given is a court answering a submission about the father when the submission was about the daughter, coupled with a paragraph that appears to invent a statement the applicant never made.
Second, the Minister must not seek to defend the Federal Circuit Court's reasons but instead attempt to run a merits defence for the first time on appeal, typically by a late notice of contention. The judgment is explicit that the Minister's stance was "a rational response to a challenging situation" yet still produced the extreme circumstance that triggered refusal of leave.
Third, the appellants must seek to introduce fresh grounds that were not ventilated below. When all three elements are present, the appellate court is invited, in substance, to become the trial court. That is the trigger for the discretionary refusal of leave and the remittal order. The precedent is not limited to s 424A or protection visa cases; any migration judicial review matter in which the Federal Circuit Court's reasons are inadequate and both sides invite the Federal Court to decide the case on new material will engage the structural analysis at [14].
The costs order (costs of the mistrial and appeal to abide the outcome of the second trial) will be attracted whenever a remittal follows a finding that the first Federal Circuit Court hearing miscarried through no fault of the parties.
The judgment has been treated as establishing a firm presumption against the Federal Court exercising what is, in substance, original jurisdiction in migration matters even when clothed as an appeal. Subsequent decisions have cited the structural analysis at [14] when refusing leave to run new grounds that would require the Court to determine contested factual matters or to receive fresh evidence for the first time on appeal. The emphasis on the difference in latitude permitted to court reasons versus tribunal reasons has been followed in cases examining whether obscure ex tempore reasons of the Federal Circuit Court can be saved by generous reading. Courts have accepted that where the Minister does not defend the primary reasons but instead files a notice of contention that effectively re-hears the judicial review application, the appellate court may properly refuse leave and remit, thereby preserving the two-tiered review Parliament intended. The costs order fashioned at paragraph 5 has been replicated in later remittal orders where the first hearing is characterised as a mistrial caused by inadequate reasons. The decision is not treated as altering the substantive law on s 424A or s 424AA; it is cited only for the anterior proposition that an appellate court cannot perform its error-correction function if it cannot understand what the court below decided.
The judgment leaves open what should occur if the Federal Circuit Court's reasons are inadequate but the Minister does seek to defend them and no new grounds are sought to be introduced. In that scenario the appellate court might be able to discern error (or lack of error) without needing to act as a trial court; the present case does not decide the point because the Minister took a different forensic course.
It is also unclear how far the "extreme circumstances" description at [15] extends. Perram J expressly disclaimed any criticism of the Minister and noted the situation was unlikely to recur. Whether a less extreme case, for example where only one new ground is sought and the Minister offers a limited defence of the existing reasons, would still attract an outright refusal of leave remains undecided.
The interaction with the High Court's later jurisprudence on the content of adequate reasons in migration matters is not addressed. This judgment insists on a higher standard for court reasons than for tribunal reasons, but does not explore the outer limits of that distinction in cases where the Federal Circuit Court has given short ex tempore reasons that are nevertheless capable of being understood when the whole of the transcript and court book is considered.
Finally, the precise scope of the costs order ("costs of the mistrial in the Federal Circuit Court and of this appeal abide the outcome of the second trial") may require further elaboration in a case where only some grounds succeed at the second trial or where the remitted hearing is itself discontinued. The present reasons do not address those contingencies.
Introduction 1 This is an appeal from the Federal Circuit Court of Australia. The appellants are a family unit consisting of a husband, wife and daughter who are from Bangladesh. They arrived in Australia on 11 July 2013 and applied for protection visas on 7 August 2013. Their visa applications were refused by a delegate of the Minister on 20 March 2014. An application for review was then pursued before the Refugee Review Tribunal ('the Tribunal') which conducted a hearing on 24 November 2014. On 27 January 2015 the Tribunal affirmed the delegate's decision. On 24 February 2015 the family applied for judicial review of that decision in the Federal Circuit Court. The case was called on for hearing on 11 May 2015 and decided on that day.
The Reasoning of the Court Below 2 The judicial review proceeding raised issues about the way in which the hearing before the Tribunal had been conducted. In particular, it invited close attention to: (a) the Tribunal's treatment of a claim made by the daughter that she was concerned that if returned to Bangladesh she would be sexually assaulted by persons wishing to take revenge on her father; and (b) the Tribunal's use of two prior inconsistent statements made by the husband when first interviewed by the Department. 3 The two grounds of judicial review before the Federal Circuit Court were, first, that the Tribunal had not given the daughter an opportunity to give evidence and present argument about her fears of sexual assault and, secondly, that the Tribunal had failed to comply with its obligation arising from s 424A of the Migration Act 1958 (Cth) ('the Act') to give the applicant an opportunity to comment on the alleged two prior inconsistent statements before using them as part of its reasons for affirming the delegate's decision. 4 In summary, the Federal Circuit Court did not deal with the first argument and its reasons for rejecting the second argument were not adequate in the requisite sense. 5 As to the first argument, the Court considered and rejected at [9] and [10] the argument that the father had not been given an opportunity to give evidence and present argument when the argument advanced to it was not about the father but rather the daughter. This requires no further explanation. 6 As to the second argument, the Court reasoned this way at [12]: '12. It is clear that on 10 December 2014, at pages 283-286 of the Court Book, marked as an exhibit, the Tribunal gave clear particulars of the information that it considered would be the reason or part of a reason for affirming the decision that was under review. I am satisfied that the requirements of s.424A were complied with. Having also seen the transcript that was put into evidence by the applicant, it is clear that the Tribunal raised those issues of credibility with the applicant in accordance with s.424AA, and there is no substance in relation to the alleged second ground. Further that the applicant as an admitted liar was not a truthful witness was clearly particularised and raised with the applicant at the hearing as identified above. This is a case where the truthfulness of the applicant was squarely raised by the admitted false passport. I do not accept the oral information provided to the Department as to the applicant not being a truthful witness in this case required the step taken by the sending of the s.424A letter. I am satisfied that there was no jurisdictional error by the Tribunal. The application is dismissed.' 7 The third last sentence suggests that the Court understood that the statement provided by the applicant to the Department was a statement that he was not a truthful witness. Neither party, nor the Tribunal, suggested that this was the statement he had made. 8 The Tribunal dealt with the applicant's prior inconsistent statements at two places in its reasons. The first was at [21] where the Tribunal concluded that the applicant was unreliable because he had stated at the Departmental interview that he had decided to leave Bangladesh after his daughter was attacked whereas what he told the Tribunal was that his daughter was attacked in April 2011 and he only decided to leave the country in April 2013. 9 The second place where the applicant's prior statements to the Department were utilised by the Tribunal was at [30]. There it observed that there was an inconsistency between the applicant's evidence to the Tribunal that he and his family had been living in hiding in Bangladesh moving from address to address and his failure to mention that fact in his Departmental interview. 10 I infer from the last three sentences of [12] of the reasons of the Federal Circuit Court that it believed it was dealing with an argument that the applicant had made oral statements to the Department that he was an untruthful witness and that the Tribunal had failed to put that to him under s 424A. The reasoning at [12] appears to me to be (a) such information about those statements (which he did not make) did not need to be put to the applicant under s 424A; (b) the Tribunal raised the lack of the applicant's credit with him at the hearing under s 424AA; and, (c) the Tribunal had given the applicant 'clear particulars of the information' although the Court did not identify what the information was. 11 I am unable to determine how the Court reasoned. It could be that the first sentence should be read as a reference to the prior inconsistent statements being put to the applicant in the Tribunal's letter of 10 December 2014 but this generates difficulties in understanding what the last three sentences are dealing with. Given that what is involved here are the reasons of a Court and not the reasons of an administrative tribunal, in respect of whose reasons a certain degree of latitude is permitted, I feel constrained to conclude that [12] does not constitute adequate reasons for disposing of ground 2: I am unable to perceive what the process of reasoning is and hence cannot conduct the exercise of determining whether that process contains error.
The Minister's Argument 12 The Minister did not advance any argument that the decision could be defended although he did not formally concede error. Instead, he sought leave to rely upon a notice of contention. Leave was necessary because the time for the filing of such a notice under r 36.24 of the Federal Court Rules 2011 (Cth) had passed. That time is 21 days after the date of the filing of the notice of appeal which, in this case, was 24 February 2015. Thus any notice of contention had to be filed by 17 March 2015 and this did not occur. The Court has the power to extend this time under r 1.39(a). The draft notice of contention responded to both grounds of review in the Court below. As to the argument that the daughter had not been given an opportunity to put on evidence and make submissions about her fear of sexual assault if she were returned, the Minister sought to point to material which suggested that the Tribunal had given her such an opportunity. As to the second argument, that the applicant had not been given an opportunity to comment on the two prior inconsistent statements, the Minister pointed to material suggesting that he had been given such an opportunity.
The Appellant's New Grounds 13 By their notice of appeal the appellants raise ground one in the Court below (relating to the daughter) substantially as grounds 2, 3 and 4. Ground two in the Court below corresponds to Ground 6 of the notice of appeal. Grounds 1 and 5 are new and are not matters which were ventilated in the Court below. The appellant therefore needs leave to pursue them in this Court.
The Role of this Court 14 One is confronted, then, with the situation that this Court is being called upon in the exercise of its appellate jurisdiction to decide the entirety of the matters which were for trial, including two new grounds, in circumstances where none of the issues to be decided in this Court were ever decided in the Court below. Section 476A of the Act explicitly removes this Court's original jurisdiction in cases of this kind. Of course, the ability of this Court to hear fresh grounds of appeal or to entertain a notice of contention is not circumscribed by s 476A as they are both aspects of the Court's appellate jurisdiction. But s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and a notice of contention when to do so will mean that this Court performs the trial court's entire function. As a matter of substance, that is what s 476A appears aimed at preventing. There is this further matter, too: Pt 8 of the Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny. 15 The circumstances which generate this situation are quite extreme and are unlikely to recur - it is rare in appellate proceedings for a respondent not to seek to rely upon any part of the trial court's reasons. In saying that, I am intending no criticism of the Minister's position which was not of his making and which was a rational response to a challenging situation.
Orders 16 In those circumstances, I decline to grant leave either to the applicant to pursue his additional grounds or to the Minister to file his notice of contention. The appeal will be allowed and the matter remitted to the Federal Circuit Court for trial. The costs of the mistrial in the Federal Circuit Court and of this appeal will abide the outcome of the second trial. 17 I thank counsel and solicitors for the Minister for their very proper and helpful submissions. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.
AAM15
Minister for Immigration and Border Protection
The appellants' application to pursue additional grounds of appeal dismissed; the Minister's application to file a notice of contention out of time dismissed; appeal allowed; matter remitted to the Federal Circuit Court for trial before a differently constituted court; costs of the mistrial and of the appeal to abide the outcome of the second trial; name of second respondent changed to Administrative Appeals Tribunal.