CJR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of and incidental to the appeal to be assessed by a Registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 The appellant is a citizen of Iraq. He once had permanent resident status in Sweden. However, he was deported from Sweden to Iraq after he had been convicted, sentenced and imprisoned for a series of offences committed in that country. Thereafter, he made his way to Australia. In December 2012, he was granted, upon his application, a protection visa under the Migration Act 1958 (Cth) (the Act). 2 In April 2018, a delegate of the Minister for Home Affairs (the Minister) concluded that the appellant had given false answers in respect of his application for that visa. The falsities concerned related to the appellant's identity. The Minister's delegate's conclusion was that, as a result, the appellant had contravened s 101 of the Act. Accordingly, acting under s 109(1) of the Act, the Minister's delegate cancelled the appellant's visa. 3 The appellant then sought the review of that visa cancellation decision by the Administrative Appeals Tribunal (the Tribunal). The appellant had the benefit of representation by a migration agent at the hearing subsequently conducted by the Tribunal. The appeal record discloses that the appellant gave evidence to the Tribunal of his personal circumstances, those of his fiancée, a child and, as well, what might happen to him were he to be returned to Iraq. On 10 May 2019, for reasons given in writing that day, the Tribunal decided to affirm the decision to cancel the appellant's protection visa. 4 The appellant then sought the judicial review of the Tribunal's decision by the Federal Circuit Court of Australia (the Federal Circuit Court). The grounds of review specified in the originating application to that Court were as follows: 1. On the 21 February 2019 and 15 March 2019, I attended a hearing before the Administrative Appeals Tribunal ("the Tribunal"). During the second hearing on the 15 March 2019 I had an Arabic speaking interpreter organised by the Tribunal. The interpreter was from Egypt not Iraq and spoke a different Arabic. I told the Member that I was having difficulty in understanding her questions and she was interpreting incorrectly, as I have a basic knowledge of the English language. However, the hearing continued. The Tribunal did not provide me with a sufficient opportunity to give evidence at the hearing as it was lost in translation. This is a breach of s 360 of the Migration Act 1958 (Cth) or a denial of procedural fairness. 2. In the Tribunals decision dated 10 May 2019 stated at [88] that the seriousness of my breach and lack of substantive mitigating or compelling circumstances significantly outweigh factors favourable to my case that my visa cancellation should be revoked. In making this conclusion the tribunal failed to give proper weigh and consideration to the best interests of the child at [78-84] and family unity principals at [70-77]. In the circumstances, the Tribunal fell into jurisdictional error for one or more of the following reasons: a) The Tribunal's reasoning process was illogical or irrational. b) The Tribunal's finding that the was based on speculation and not probative evidence. c) The Tribunal misunderstood the evidence and made finding of fact in respect to the best's interests of the child that was not consistent with the evidence. [sic] 5 The hearing of the appellant's judicial review application was initially listed to proceed in October 2019. The appellant, with the benefit then of pro bono legal assistance, successfully secured an adjournment of that hearing. The case was relisted and heard in the Federal Circuit Court on 6 March 2020. On that day, for reasons which were delivered orally with the assistance of an interpreter, the court dismissed with costs the appellant's judicial review application. In respect of that particular hearing, the appellant did not have the benefit of legal representation. 6 The appellant moved promptly to challenge the order of dismissal by filing a notice of appeal in this Court. The notice of appeal specifies the following under the heading "Grounds of appeal", "Dismissed case". Under the heading "Orders sought", the following appears, "Dismissed". 7 The appellant appeared today on his own behalf. The Minister was represented by counsel. 8 There is a reason, upon which the appellant elaborated in the course of his oral submissions, as to why the ground of appeal and the order sought are stated the way they are. The appellant explained, and it is common ground, that although the Federal Circuit Court's reasons were delivered orally, he did not receive the revised, written version of them until early May. This is confirmed by the associate's certificate on the reasons as revised, which is dated 1 May 2020. 9 As the appellant explained, all that he got in writing, either on 6 March 2020 or at least soon afterwards, was the order which said, in effect, "dismissed". The appellant's first language is not English. Further, he does not have any training in law. So, while he was able to obtain the notice-of-appeal form, I can understand how someone in his circumstances might come to have written "Dismissed" in respect of the orders sought. That may even explain why that same word appears under the "Grounds of Appeal" heading. 10 The appeal was listed for hearing today on 13 July 2020. Also in July, through the Legal Assistance Scheme established between this Court and the New South Wales Bar Association, the appellant was able to secure the benefit of legal advice by a barrister acting pro bono. By the end of July, that barrister had both established contact with the Minister's barrister and furnished advice to the appellant. 11 It is, of course, neither relevant nor would it be in any way appropriate to understand the nature of the advice given. That is entirely a matter between the appellant and his counsel. The result, though, has been that the barrister concerned sought to withdraw, and has withdrawn, from representing the appellant. That occurred no more than a week ago. So it was that the appellant appeared for himself today. 12 The appellant did not seek an adjournment of the hearing of the appeal. Instead, he responded to an invitation, which I extended, to detail as best he could what he submitted was the legal error in the Federal Circuit Court's judgment. 13 The appellant then made an eloquent submission, by reference to particular supporting documents and a video, as to why he feared for his life if he were to return to Iraq. He did not elaborate on either of the grounds of review and why it was that the Federal Circuit Court had been in error in relation to them. 14 The Minister hardly unfairly, approached the appeal by addressing whether or not, in respect of either of the grounds of review, the Federal Circuit Court had been in error. Against this procedural history and these submissions my conclusions are as follows. 15 Rule 36.01(2)(c) of the Federal Court Rules 2011 (Cth) requires that grounds of appeal be stated briefly, but specifically. There is authority that, if a notice of appeal is incomprehensible or entirely unrelated to the issues dealt with in the judgment under appeal, an appeal may be incompetent: see Zegarac v Dellios [2007] FCAFC 58 and SQMB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 165. 16 The question of comprehensibility is always one of substance, not form. No special or different rule of court is applicable on this subject to litigants in person, see SZJJC v Minister for Immigration & Citizenship [2008] FCA 614. That is but a particular example of a general practice in relation to litigants in person: see Tinkler v Elliott [2012] EWCA Civ 1289, a judgment of the Court of Appeal for England and Wales, the observations in which have been cited with approval by a number of judges of this Court, including me: see Ioannou v Commonwealth of Australia (Department of Human Services) [2012] FCA 1228; O'Donoghue v Australian Information Commissioner [2012] FCA 1219; Singh v Owners Strata Plan No 11723 (No 4) [2012] FCA 1180; Ejueyitsi v Bond University [2012] FCA 1514. 17 One way, therefore, of disposing of this appeal would be to hold that the notice of appeal was so devoid of meaning as to make the appeal incompetent. I am of that view. 18 However, I am very conscious of the particular difficulties in which the appellant, like so many in his situation, has found himself. So, as did the Minister, I propose briefly to consider whether there was any particular error in the way in which the Federal Circuit Court deal with the grounds of review. 19 As to the first of those grounds, it is by no means impossible, in theory, that the interpretation in respect of a hearing by the Tribunal could be so inadequate as to rob the hearing of meaningful content. In that circumstance, the Tribunal would not have complied with the requirements of the Act by truly offering to an applicant for review a hearing to an applicant for review. 20 However, that is not a question decided either in the abstract or by assertion alone. The inadequacy of interpretation would have to be evidenced on the judicial review application to the Federal Circuit Court. This the appellant did not do. It is no answer in that regard that he appeared on his own behalf. There is either evidence of inadequacy or there is not. In my view, the learned primary judge correctly dismissed the first ground of review. That is because there was just no evidence of inadequate translation in respect of the hearing before the Tribunal. 21 As to the second ground of review, once again, in theory, to fail to consider meaningfully a particular or integer of a claim for review could result in jurisdictional error. However, regard to the Tribunal's reasons discloses that under the headings "Family Unity Principles" and "Best Interests of the Child", the Tribunal did take into account, and detailed, particular considerations weighing against upholding cancellation, see [70] - [84] of the Tribunal's reasons. 22 Emphatic disagreement with a conclusion reached by the Tribunal does not mean that the Tribunal's decision is illogical, irrational or unreasonable. These reasons, read fairly and as a whole, address, notably, the appellant's family situation in Australia, including the interests of a child of his fiancée. In the end, the Tribunal made a value judgment on the whole of the case as presented. It is not for me, any more than it was for the learned primary judge, to substitute a personal factual evaluation for that of the Tribunal. The learned primary judge was correct, in my view, to dismiss ground 2. That then leaves the appellant's submissions on the appeal about what might happen to him were he to return to Iraq. It is not impossible for a further ground, one not taken in the original jurisdiction, to be permitted to be raised on appeal. Such a course is exceptional and never permitted where prejudice might be occasioned to the other party: see Coulton v Holcombe (1986) 162 CLR 1. 23 It is not impossible to see how, if the Tribunal had not addressed the appellant's claim, in respect of his fate if returned to Iraq, that a ground of review or, perhaps if not originally raised, a ground of appeal could be fashioned. However, the Tribunal gave elaborate consideration under the heading "Non refoulement obligations" to what might be the appellant's fate, see [56] - [69]. When all is said and done, the Tribunal was not satisfied as to the basis for that part of the appellant's claims. Once again, it is not for me to substitute a personal view in relation to the Tribunal's view. 24 Quite properly, the Minister also made particular submissions to the Federal Circuit Court in relation to the construction and application, in the circumstances, of s 438 of the Act. That was so, even though no ground of review relying on s 438 had been pleaded. That particular section did not feature in any way, even by inference, in the appellant's submissions on the appeal. 25 The end result is that I am of the view that the notice of appeal as pleaded is completely inadequate and the appeal is therefore not competent. Even if, however, one treats the source of the grievance as the dismissal of the grounds of review or as alleged inadvertence to the question of the appellant's fate if returned, there is no jurisdictional error evident in the Tribunal's reasons. On the grounds of review that were pleaded, the judgment of the Federal Circuit Court was correct in law. It necessarily follows that the appeal must be dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.