What happened
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".
Why the court decided this way
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 and after state of the law
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.
Key passages with plain-English translation
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.
What fact patterns trigger this precedent
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.
How later courts have treated it
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.
Still-open questions
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.