BKL15 v Minister for Immigration and Border Protection

Federal Court of Australia|2016-07-13|Before: Flick J

The appeal is dismissed.
The Appellant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 The Appellant first arrived in Australia in 2011 as an "Irregular Maritime Arrival". 2 He is a Hazara Shia Muslim and is a citizen of Afghanistan. He claimed to have distributed Bibles in Kabul and Behsood for approximately six months and to have gone into hiding after he became aware of people talking about "the person distributing the Bible and Christianity". He also claimed that his home was visited by the police. He claims fear of returning to Afghanistan by reason of being implicated in distributing Christian books. He claimed that he would be seriously harmed if he returned to Afghanistan and that he could not re-locate if he returned. 3 Prior to his arrival in Australia, he applied unsuccessfully for asylum in the United Kingdom twice - once in March 2007 and again in October 2007. On each occasion was deported from the United Kingdom to France. He was then twice deported from France - on the first occasion he was deported to Greece; on the second occasion he was deported to Afghanistan. 4 After his arrival in Australia the Appellant made a request for a Protection Obligations Evaluation. Detailed written submissions and materials were made on behalf of the Appellant, including a letter forwarded to the Department in June 2011. An Evaluation officer concluded in July 2011 that the now-Appellant did not meet the definition of a refugee and referred his claim for Independent Protection Assessment. That assessment was undertaken and in November 2012 the Assessor found that the now-Appellant did not meet any of the criteria for a Protection (Class XA) visa set out in s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth). 5 An Application seeking judicial review of the Assessor's decision was thereafter filed with the Federal Circuit Court of Australia. That Court in an ex tempore judgment dismissed the Application in December 2015: BKL15 v Minister for Immigration & Anor [2015] FCCA 3455. 6 In January 2016 the Appellant filed a Notice of Appeal in this Court. The Grounds of Appeal were there set forth as follows: 1. That the Federal Circuit Court Judge did not provide reasons for dismissal. 2. That the Federal Circuit Court Judge erred in dismissing the proceedings and that to do so was procedurally unfair. 7 The appeal is to be dismissed.

The need for reasons 8 Although there is no "inflexible rule of universal application" that reasons should be given for judicial decisions, judges are under an obligation to give reasons where it is necessary to enable a matter to be properly considered on appeal: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666 to 667. Gibbs CJ there referred to the decision of the New South Wales Court of Appeal in Pettitt v Dunkley [1971] 1 NSWLR 376 at 388 and continued: … The decision in that case that the failure to give reasons was an error in law may have broken new ground, but there was nothing new in saying that judges are under an obligation to give reasons where that is necessary to enable the matter to be properly considered on appeal. It has long been the traditional practice of judges to express the reasons for their conclusions by finding the facts and expounding the law … and there have been many cases … in which it has been held that it is the duty of a judge or magistrate to state his reasons. That does not mean that a judicial officer must give his reasons in every case; it is clear, to use some of the words of Woodhouse P in R v Awatere ([1982] 1 NZLR at 649), that there is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Nevertheless, it is no doubt right to describe the requirement to give reasons, as Mahoney JA did in Housing Commission (NSW) v Tatmar Pastoral Co [1983] 3 NSWLR 378 at 386, as "an incident of the judicial process", subject to the qualification that it is a normal but not a universal incident … Although the duty to give reasons for judicial decisions has thus often been linked to the availability of rights of appeal, there is nevertheless a wider rationale derived from the nature of the judicial function: Wainohu v New South Wales [2011] HCA 24 at [55], (2011) 243 CLR 181 at 214 per French CJ and Kiefel J. See also: Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37 at [127], (2015) 228 FCR 346 at 375 per North and Bromberg JJ. 9 Similarly, Meagher JA in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 441 to 442 observed: The obligation to provide reasons for decision It is well settled that a judge or magistrate at first instance in particular cases has an obligation to provide reasons for the judgment given … That obligation arises as a matter of judicial duty … but only as a normal, not universal incident of the judicial process … It does not arise from legislation as it does in the field of administrative law: see, for example, Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13, Administrative Appeals Tribunal Act 1975 (Cth) s 28, 37 and 43 … Despite the fact that the obligation on courts to provide reasons may have a different origin, the former being an incident of judicial duty and the latter being a legislative requirement, there is no reason in principle or as a matter of policy why the content of reasons for both types of decision should not be similar, if not the same: they essentially serve the same purpose. The purpose of providing reasons for decision Perhaps the primary reason for an obligation on courts to provide reasons is the fact that a party seeking an appeal may generally only appeal where the trial judge has made an error of law. The absence of reasons or insufficient reasons may not allow an appeal court to determine whether the trial judge's verdict was or was not based on an error of law or an appealable error. However, the provision of full reasons has other benefits. A failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made … This court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost … One reason is obvious: if decisions cannot be understood, a feeling of injustice can arise and, as Justice Brennan of the United States Supreme Court (see Huxtable, "A Question-Mark Over The Adversarial System" (Dee 1995) 30 (No 11) Australian Lawyer 17 at 18) recently perhaps overstated: "… Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down." Aside from the sense of injustice which can be caused, there is a broader interest in maintaining public acceptance of judicial decisions and the judicial system. The requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability. The provision of reasons has an educative effect: it exposes the trial judge or magistrate to review and criticism and it facilitates and encourages consistency in decisions. The educative effect does not stop with judges but extends to other lawyers, to government and to the public. Decisions of courts usually influence the way in which society acts and it is trite to point out that it is better to understand why one should act in a particular way. The provision of adequate reasons will save time for appeal courts both in reducing the number of appeals and in reducing the time taken in considering any appeals. Thus, any increase in judicial resources required at the trial level should be countered by a reduction in judicial resources required at the appellate level … 10 More recently, in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7 at [67], (2013) 252 CLR 38 at 71 French CJ included "the provision of reasons for the courts' decisions" as one of the "defining characteristics which mark a court apart from other decision-making bodies". 11 It is thus not surprising to find that decisions of the former Federal Magistrates Court (now the Federal Circuit Court) also attract a duty to give reasons for their decisions: SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1500 at [16], (2004) 82 ALD 35 at 38 per Jacobson J. And although it has been said that there may be "rare circumstances" in which the reasons provided by that Court may be found to be inadequate, there are instances where such a conclusion has been reached: e.g., SZKLO v Minister for Immigration and Citizenship [2008] FCA 735. 12 Where reasons are required to be given, they "must indicate to the parties why the decision was made in order to allow them to exercise such rights as may be available in respect of that decision": Penhall-Jones v New South Wales [2006] FCA 934 at [25] per Tamberlin J. See also: SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 at [21] per Flick J. Albeit not in the context of considering the adequacy of reasons required in a judicial review application, as opposed to (for example) the adequacy of reasons in respect to a fact finding task in a commercial dispute, Samuels JA in Mifsud v Campbell (1990) 21 NSWLR 725 at 728 observed that the "extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case". His Honour there went on to conclude: In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, the High Court (at 667) said that it was right to describe the giving of reasons as "an incident of the judicial process" although a normal but not a universal one. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA (at 278) makes some comments upon that holding, and goes on to say (at 281) that the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge - as the defendant's denial of having consumed alcohol - may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires. Clarke JA and Hope A-JA agreed with Samuels JA. 13 In the context of considering the adequacy of reasons in a judicial review application, reasons should (at a minimum) normally: address each of the grounds upon which judicial review is sought; address each of the submissions relied upon, or at least the more important of the submissions relied upon, always recognising that a failure to expressly mention a particular submission does not necessarily mean that it has not been considered; set forth the factual basis upon which the submissions have been advanced; and explain why each of those submissions has been accepted or rejected. Where an exercise of discretion is called for, as may be the case where relief is refused for discretionary reasons, the reasons provided should normally also include: a reference to the factual basis upon which the discretion is exercised; the principles which guide the exercise of the discretion in question; the application of those principles to the facts as found; and the reasons for granting or refusing relief. The touchstone for the adequacy of reasons provided in a judicial review application can probably be expressed with no more specificity than that an applicant for review should normally be entitled to be assured from the reasons provided that a judge has in fact considered the substance of the arguments advanced for consideration and to be informed from the reasons provided of the basis upon which each of his grounds of review have been resolved or the basis upon which a discretion has been exercised. When rejecting an argument (for example) as to a denial of procedural fairness, the reasons required to be provided may well differ from those required where the ground of review relied upon is an error of law. An argument as to a denial of procedural fairness by reason of a reasonable apprehension of bias may require evidence of what was said or done during a hearing or even evidence as to statements made by a judge in an extra-judicial environment. Some of that evidence may even be contested. Findings of fact will most probably have to be made. There will then have to be some explanation of the legal principles to be applied and the manner in which the facts as found either fall - or do not fall - within those legal principles. An argument as to an error of law may require no more than reasons which direct attention to the statutory context in which an administrative decision has been made; that part of the administrative decision in which it is claimed the error of law appears; and the reasons for why the law has been - or has not been - erroneously applied. It may also be necessary to set forth some legal principles relevant to questions of statutory construction. 14 The point of present relevance is that the content of an adequate statement of reasons for a decision in an application for judicial review will necessarily depend upon the statutory context in which a decision is required to be made, the particular statutory power being exercised, or the ground of review under consideration. 15 At the end of the day, the adequacy of reasons does indeed depend upon "the circumstances of the individual case": Mifsud (1990) 21 NSWLR at 728. "Ultimately", it has been said, "the question is whether the asserted failure to provide sufficient reasons promotes 'a real sense of grievance' and denies 'both the fact and the appearance of justice having been done', thus working a miscarriage …": Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General [2015] NSWCA 33 at [90] per Gleeson JA (McColl JA and Beech-Jones J agreeing). It is of fundamental importance that "justice is seen to be done". 16 But the standard is not a standard of perfection. The judicial context in which decisions are made must necessarily be recognised - including (for example) a recognition whether a decision is of an interlocutory or final character and whether ex tempore reasons have been provided. Indeed, the very prospect that ex tempore reasons may not adequately address the issues under consideration should sound a note of warning to the primary judge about the need to reserve a decision for greater consideration. When an ex tempore judgment is delivered, however, it "should not be picked over" and "appropriate allowance should be given for the pressures under which judges … are placed by the volume of cases coming before them": Maviglia v Maviglia [1999] NSWCA 188 at [1] per Mason P; Cicek v Estate of the late Mark Solomon [2014] NSWCA 278 at [140] per Ward JA (Meagher and Barrett JJA agreeing); Mega-Top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402 at [24] per Leeming JA (Gleeson JA and Emmett AJA agreeing). Matters of complexity requiring "judicial reflection" do not usually lend themselves to ex tempore reasons for judgment: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [102] per Bergin CJ in Eq. See also: [2015] NSWCA 373 at [180] per Emmett AJA. The understandable desirability, especially in a high volume jurisdiction such as migration, of delivering ex tempore reasons may sometimes achieve expedition in decision-making at the expense of justice. The "overarching purpose of the civil practice provisions" found in s 37M of the Federal Court of Australia Act 1976 (Cth), it should constantly be recalled, includes as an objective "the just determination of all proceedings" and not merely a determination which is quick and inexpensive. No procedure should be encouraged, be it by way of ex tempore judgments or otherwise, which sacrifices the need for any Court to achieve a "just determination" of a proceeding before it and a determination "according to law".

The reasons provided - Ground 1 17 Ground 1 of the Notice of Appeal asserts appellable error by reason of the failure of the Federal Circuit Court Judge to provide reasons for his decision dismissing the Application before that Court. The reasons provided were in an ex tempore judgment. 18 The reasons provided by the Federal Circuit Court Judge must, of course, be directed to the reasons for rejecting the grounds of review there relied upon for resolution, namely: jurisdictional error by reason a failure on the part of the Independent Protection Assessor to inquire why the Appellant was deported twice from the United Kingdom and from France; and a failure on the part of the Assessor to "identify the community sub-group into which the claimant would fit upon his forced return to Afghanistan". The second of these two grounds was more fully particularised as follows: (i) The assessor accepted that the claimant is an Afghani Hazara ethnic of the Shia Muslim religion. (ii) The assessor did not consider that the claimant, on returning to Afghanistan, would be an Afghani Hazara ethnic of the Shia Muslim religion, who was a failed asylum seeker, married but living separately from his wife, had spent many years living out of Afghanistan, about 29 years old and departure from Afghanistan on a fraudulent passport. 19 In rejecting the former ground of review, the Federal Circuit Court Judge concluded (without alteration): [6] … The substance of the argument for the applicant in relation to ground 1 was that the reasons for departure twice from the UK and for being deported twice from France were a claimed fear that required findings by the independent assessor in applying the criteria under ss.36(2)(a) and/or 36(2)(aa). [7] [The solicitor for the applicant] relied upon NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 as supporting the proposition that the deportation from the UK and from France were obvious claims to fear persecution or significant harm that should have been assessed by the independent assessor. [8] The independent assessor identified in relation to the applicant's background the allegations by the applicant of having being deported twice from the UK and twice from France. I do not accept that that background gave rise to any obvious claim of fear of persecution or significant harm in respect of the reasons for deportation. I reject the proposition that the independent assessor made any error of law by failing to identify, or sufficiently identify, relevant information. Ground 1 fails to make out any error of law in the independent assessment by the second respondent. 20 No appellable deficiency can be found in the reasons of the Federal Circuit Court Judge in reaching this conclusion. As noted by the Independent Protection Assessor in her statement of reasons, "the main issue" relied upon by the Appellant was "the bible issue…". But for that issue, the Appellant maintained that he "wouldn't be here". Although the Appellant gave an account of his attempts to enter the United Kingdom and his subsequent removal, that account - it is respectfully considered - formed more a part of the unhappy chronology of events which preceded the claims for protection ultimately to be resolved by the Assessor upon the basis of the claims then being made. 21 The Independent Protection Assessor was not required to further consider the reasons why the now-Appellant was deported from the United Kingdom and France. No jurisdictional error is exposed by the absence of such further consideration. 22 Greater reason for concern is expressed in respect to the second ground of review. The "sub-group" asserted in the Particulars to the amended second ground of review was expressed as being: … an Afghani ethnic of the Shia Muslim religion, who was a failed asylum seeker, married but living separately from his wife, had spent many years living out of Afghanistan, about 29 years old and departure from Afghanistan on a fraudulent passport. The June 2011 letter forwarded to the Department on behalf of the Appellant contained detailed written submissions as to the fears faced by "failed asylum seekers" and concluded with the following submission (without alteration): It is submitted that the Clients' claims of fears of persecution for actual/imputed political opinion on the basis of actual/perceived sympathizers/supporters of the government / coalition forces/foreign workers/NGO's in Afghanistan and/or membership of the social groups 'failed asylum seekers returning from a western country', 'returnees from a western country' are supported by country information. Furthermore when considered both separately and cumulatively, as required by law, with further grounds of race and religion, the Clients claims of a well-founded fear of persecution for Convention reasons are established. The Assessor not surprisingly expressed the claim being made and the "sub-group" in much the same terms, variously expressing the "sub-group" as: "… a failed asylum seeker from a Western country; and his membership of a particular social group, 'Failed asylum seekers returning from a western country'…" (at para [30]); "… a member of the particular social group, 'failed asylum seekers from a western country' …" (at para [213]); "… a member of the particular social group, 'failed asylum seekers from a western country'…" (at para [218]); and "… a failed asylum seeker from Australia who previously sought asylum twice in the UK in 2007…" (at para [220]). 23 In rejecting the second ground of review, the Federal Circuit Court Judge did not advert to the difference in the description of the "sub-group" - being the difference between that identified by the Appellant in (for example) the June 2011 letter and as resolved by the Independent Protection Assessor and in the revised description set forth in the Particulars. The Judge nevertheless proceeded to reject the argument (in relevant part) as follows: [9] In relation to ground 2, the solicitor for the applicant contended that the cumulative matters identified in ground 2(ii), including departure from Afghanistan on a fraudulent passport, were matters that should have been the subject of a clear finding by the independent assessor, or, alternatively, constituted a separate subgroup in respect of which the independent assessor should have made findings. … [12] The substance of the applicant's submission, in relation to the use of the fraudulent passport by the applicant, is that the applicant was an illegal departee from Afghanistan, and accordingly fell into a subgroup of Afghani Hazara Ethnic Shia Muslims who had illegally departed Afghanistan. No such claim was identified as the subject of any fear by the applicant in his statement as to the reasons why he left Afghanistan and no such fear of persecution or significant harm, in my opinion, was apparent or sufficiently raised in the evidence before the independent assessor so as to require separate findings by the independent assessor. [13] Further, in my opinion, the independent assessor's finding that referred to having considered the applicant's claims cumulatively, followed by the word "including", properly addressed the subgroup that had been articulated by the applicant, being a failed asylum seeker, which had been also the subject of separate findings by the independent assessor. [14] I do not accept that there was a separate subgroup that the applicant advanced that the independent assessor should have addressed in relation to being an illegal departee from Afghanistan, or an illegal departee who was a Hazara Ethnic of the Shia Muslim religion and a failed asylum seeker. It is clear that the independent assessor made adverse findings in relation to the applicant's claims in respect of being a failed asylum seeker. No legal error is made out by ground 2 of the amended application. 24 It is not at all apparent from the reasons provided that any consideration was given by the Federal Circuit Court Judge as to the difference in the manner in which the "sub-group" was expressed or, if it was considered, why it assumed no relevance. The difference could well have assumed relevance because it would be difficult to expose legal error in the Independent Protection Assessor not making findings in respect to a claim that was never advanced for resolution. The approach taken by the Federal Circuit Court Judge seems, with respect, to subsume the particularised ground of review within an overall assessment of the absence of any general error in the manner in which the Assessor proceeded. Far greater specificity would have been preferable in the reasons provided by the Circuit Court Judge, to expose both an awareness of the argument in fact being advanced and resolved, and the course of reasoning in fact pursued. Had an ex tempore judgment not been delivered, and had judgment been reserved, it may well have been the case that greater attention could have been focussed upon the identification of the precise sub-group of relevance. 25 But there was no transcript of the proceeding before the Federal Circuit Court available for consideration. The extent to which that Court was taken through (for example) the reasons for decision of the Assessor or the June 2011 letter is thus not known. It would be a questionable course to proceed to deliver an ex tempore judgment without having had the benefit of being taken through the materials available to the Court in order to understand the manner in which a claim for protection was initially advanced for consideration and the context in which factual findings were made. 26 A recitation of the claims made and conclusions in respect to those claims fall short of a statement of reasons. Reasons must be provided outlining the course of reasoning by which conclusions have been reached. 27 But, given that the standard imposed upon reasons for a judicial decision is nevertheless not a standard of perfection, it is concluded that the reasons provided sufficiently expose the basis upon which the Federal Circuit Court Judge proceeded. Although there may be a question as to the claim advanced by the now-Appellant which the primary Judge resolved, no appellable error is discernible. 28 Adequate reasons were provided for the rejection of the second ground of review.

Procedural fairness - Ground 2 29 It was difficult to give any content to the second Ground of Appeal asserting a denial of procedural fairness. 30 On the facts of the present case, the Appellant: was granted leave by the Federal Circuit Court Judge to amend his Application and an opportunity to file further evidence and submissions; and was represented by a solicitor before the Federal Circuit Court. Without more, no basis for any lack of procedural fairness was made out. 31 No denial of procedural fairness necessarily arises from the dismissal of a proceeding in an ex tempore judgment.

CONCLUSIONS 32 The first Ground of Appeal is thus rejected. 33 There was no evidence otherwise available to this Court upon which any denial of procedural fairness was otherwise apparent. The second Ground of Appeal is also dismissed. 34 The appeal should thus be dismissed with costs. 35 Although the solicitor on the record for the Appellant appeared, it should be noted that he had no instructions to advance any submissions and did not in any event do so other than to express a personal opinion as to his client's prospects of success - an opinion which, as the solicitor noted, was not the submission his client wished to have advanced. That personal opinion, it is respectfully considered, should not have been expressed. It has been disregarded.

THE ORDERS OF THE COURT ARE:

The appeal is dismissed.
The Appellant is to pay the costs of the First Respondent. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (20)

Cited By (15)