BRG16 v Minister for Immigration and Border Protection

ALLSOP CJ: 1 The applicant seeks leave to appeal against a decision of the Federal Circuit Court dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal pursuant to r 44.12(1)(a) of the Federal Circuit Rules 2001 (Cth). 2 The applicant is a citizen of Bangladesh. In 2013, after arrival in Australia, he applied for a Protection (Class XA) visa. This was refused by the Minister's delegate on 5 December 2014. The applicant applied to the Tribunal for review, which was conducted in May 2016, and a decision was made in June 2016 which affirmed the decision not to grant him the protection visa. 3 Following the Tribunal's decision, the applicant filed an application for judicial review. The grounds were as follows: The Administrative Appeal Tribunal made a jurisdictional error when it failed to consider each integer of his claim or failed to take into account the whole of the oral and written evidence in determining whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in Bangladesh and if not whether there are substantial grounds for believing that, as a necessary and foreseeable consequences of his being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm . … The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958 The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm. … 4 The Minister applied for an order under r 44.12(1)(a) that the application be dismissed because it did not raise an arguable case. The Federal Circuit Judge, in reasons delivered in September 2017, agreed with that proposition: see [2017] FCCA 2164. At [7] of his reasons, the Circuit Court Judge stated that the application for review contained one ground and proceeded to set out the first of those grounds referred to above. The Circuit Court Judge's reasons proceeded on the basis that there was a sole ground raised in the applicant's application for review. 5 The applicant filed an application for leave to appeal in September 2017 and the hearing was listed before me today. 6 The Minister has conceded that the Circuit Court Judge did not consider or make findings in respect of one of the two grounds pleaded before the Federal Circuit Court by the applicant. The failure to consider, make findings or give reasons concerning a ground pleaded in an application for review may amount to a constructive failure to exercise jurisdiction. The Minister's representatives are of the view that the application for review should be remitted to the Federal Circuit Court Judge for re-determination. It was indicated that the Minister was prepared to bear the costs of the applicant before this Court. 7 The need for the Court to be persuaded to some degree of satisfaction of the error of the lower Court was discussed by the Full Court in Bradken Ltd v Norcast S.r.L [2013] FCAFC 123; 219 FCR 101 in the context of an appeal from a judge of the Court. It is for these reasons that I am content to make the order. The parties, and the Minister in particular, have helpfully dealt with the matter by the form of consent orders, which I will make, and a note by the Court of the concession, which I accept as correct, that there has been a failure by the lower Court to deal with the matter according to law. 8 The question of which judge should hear this is a matter for the Federal Circuit Court. The judge overlooked a matter. Whether or not his error was contributed to by those appearing for the Minister is not clear, but it will be for the Federal Circuit Court below to decide who should hear the case. 9 Therefore, I make orders in accordance with the consent orders handed up to me and the Court notes by consent the matters in that consent order as follows: THE COURT ORDERS BY CONSENT THAT:

1. Leave to appeal be allowed, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
2. The appeal be allowed.
3. The orders and judgment made by the Federal Circuit Court of Australia on 9 September 2017 be set aside.
4. The application for judicial review filed in the Federal Circuit Court of Australia on 6 July 2016 be remitted to the Federal Circuit Court of Australia for re-determination according to law.
5. The first respondent pay the applicant's costs of and incidental to the application for leave to appeal, and the proceeding in the Federal Circuit Court of Australia below. THE COURT NOTES BY CONSENT THAT: The applicant's application for judicial review filed in the Federal Circuit Court of Australia on 6 July 2016 (the application for judicial review) pleaded two grounds of review. On 8 September 2017 the Federal Circuit Court of Australia, as constituted by the primary judge, made orders dismissing the application for judicial review, and gave written reasons for judgment in support of those orders (the written reasons). In the written reasons, the primary judge considered and made findings in respect of the first ground pleaded in the application for judicial review, but did not consider or make findings in respect of the second ground pleaded in the application for judicial review. The first respondent concedes that a failure to consider or make findings in respect of a pleaded ground constitutes a constructive failure to exercise its jurisdiction; cf, eg., COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 (Griffiths J); SZKLO v Minister for Immigration and Citizenship [2008] FCA 735; 247 ALR 582 (Flick J). The first respondent therefore concedes that it is appropriate that the application be remitted to the Federal Circuit Court of Australia for re-determination according to law. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.