Ground 2 on the appeal: constructive failure to exercise jurisdiction
31 The appellant relied upon two primary matters in support of his contention that there was a constructive failure by the primary judge to exercise jurisdiction. Those matters are, first, the claim that the primary judge failed to provide "clear reasons" for rejecting the appellant's judicial review application. The second matter is the appellant's claim that the primary judge failed to make findings on a "substantial, clearly articulated argument relying upon established facts", citing Dranichnikov.
32 The Minister accepted that a failure by a judge to give adequate reasons may amount to an error of law, citing authorities such as Pettitt v Dunkley [1971] 1 NSWLR 376; Housing Commission of New South Wales v Tatmar Pastoral Co. Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Mifsud v Campbell (1991) 21 NSWLR 725 and SZKLO v Minister for Immigration and Citizenship [2008] FCA 735; 247 ALR 582 (SZKLO) at [26] per Flick J). In SZKLO, Flick J identified the following reasons for requiring judges to provide adequate reasons for their decisions:
(a) the obligation arises as a matter of judicial duty and enables an appeal court to determine whether or not the primary judge's decision was or was not affected by error of law or an appealable error (at [19]);
(b) the failure to provide adequate reasons may lead to a real sense of grievance by the unsuccessful party who does not know or understand why the decision was made (at [19]); and
(c) the need to maintain public confidence, respect and faith in the judicial system, recognising that lower courts play an important role as they have to deal with so much work and usually come into contact with more litigants than do higher courts (at [20]).
33 In SZKLO Flick J said the following at [26] with respect to the requirements of the reasons of a primary judge in exercising a judicial review jurisdiction:
26 Whatever the ground of review, however, the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that Court proceeded and the reasons why the application to review the decision of the Tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons do not adequately address the grounds of review sought to be resolved if the litigant - or this Court - is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision.
34 Justice Flick repeated and expanded upon these matters in BKL15 v Minister for Immigration and Border Protection [2016] FCA 802 at [8]-[16]. It is important to note what his Honour said at [16] concerning ex tempore reasons for judgment:
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".
35 I respectfully agree with Flick J's observations in both SZKLO and in BKL15. It is also apposite to note French CJ's statement in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [67], where his Honour described the provision of reasons for a court's decision as one of the "defining characteristics which mark a court apart from other decision-making bodies" (to similar effect see the observations of French CJ and Kiefel J in Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54], where their Honours described the public explanation of reasons for final decisions as central to the judicial function). Adequate reasons must be given by judges so as to reassure litigants and the public that the judicial function is being properly performed.
36 On the issue of the adequacy of a judge's reasons in a judicial review context, reference should now also be made to the very recent decision of the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (DAO16) at [46]-[48] per Kenny, Kerr and Perry JJ. At [47]-[48] their Honours made the following obiter observations on the obligation of a judge to provide adequate reasons for his or her decision:
47 The requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 667 (Gibbs CJ). As Mahoney JA stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273:
Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if … by his [or her] reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he [or she] has acted.
48 However, the reasoning on the basis of which the primary judge reached his decision in this case is not revealed by his reasons. The primary judge addressed the grounds of judicial review by stating his conclusion for rejecting each ground at such a high level of generality that the basis for the conclusion is not exposed; nor do the reasons disclose that the primary judge considered fundamental aspects of the appellant's case such as, for example, the challenge to the dismissal by the AAT of the evidence of the 16 witnesses. To find, for example, that adverse findings were open and cannot be said to lack an evident and intelligible justification is merely to assert a conclusion: see above at [25].
37 In DAO16, the Full Court considered that the primary judge had not only failed to provide adequate reasons for his decision, but also that the reasons which were provided did not reveal that fundamental aspects of the appellant's case had been considered.
38 The failure to address fundamental aspects of a party's case may give rise to procedural unfairness or, in an appropriate case, be characterised as a constructive failure to exercise jurisdiction. For example, in Dranichnikov, Gummow and Callinan JJ (with whom Hayne J agreed) accepted that a failure by the then Refugee Review Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" could amount to a failure to provide natural justice or "as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction". Their Honours held that the Tribunal had failed to determine a matter which was put to it, namely that Mr Dranichnikov feared persecution for a Convention reason (being his claimed membership of a social group which was described as entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals), whereas the Tribunal determined the matter on the basis of his membership of a broader social group, which the Tribunal described as "businessmen in Russia". Their Honours considered that this amounted to a constructive failure to exercise jurisdiction which entitled Mr Dranichnikov to constitutional writ relief under s 75(v) of the Constitution.
39 Justice Kirby adopted a similar view in Dranichnikov at [88]. While noting that not every mistake in reasoning to a conclusion will amount to a constructive failure to exercise jurisdiction, his Honour added that where the mistake amounts to "a basic misunderstanding of the case brought by an applicant" the flaw may be so serious as to undermine the lawfulness of the decision in a fundamental way.
40 Dranichnikov involved a constructive failure to exercise jurisdiction by a statutory administrative tribunal. It is clear, however, that similar principles apply to the exercise of jurisdiction by a court of law. The failure of a judicial officer to provide adequate reasons is sometimes expressed as an error of law but is also described in other cases as a constructive failure to exercise jurisdiction. This is illustrated by the decision of the Court of Appeal of New South Wales in Goodwin v Commissioner of Police [2012] NSWCA 379 (Goodwin) per Allsop P, Basten JA and Young AJA.
41 In an earlier decision of that Court (Goodwin v Commissioner of Police [2010] NSWCA 239), a judgment of the District Court was set aside and the matter was remitted for reconsideration by the same primary judge. The matter came again before the Court of Appeal by way of an appeal under s 142N of the District Court Act 1973 (NSW) (which requires there to be an error "in point of law"). The appellant claimed that the primary judge conducting the remitted hearing was ostensibly biased and constructively failed to exercise jurisdiction. The basis for the claimed constructive failure to exercise jurisdiction related to the primary judge's failure to take into account relevant and uncontested evidence going to primary issues for determination (namely whether the plaintiff was suffering from PTSD and, if so, whether his major depression was a consequence of that disorder), and by making findings that were not open on the evidence. The leading judgment in the Court of Appeal was given by Basten JA, who analysed some previous authorities concerning the notion of a constructive failure to exercise jurisdiction. His Honour noted at [22] that acting without evidence or without giving reasons may lay the basis for a finding of error, which can be expressed in various ways, citing the Full Court's decision in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [12] per Allsop J, with whom Moore and Tamberlin JJ agreed. Basten JA stated at [22] in Goodwin that it was apparent that "a range of circumstances may lead a decision to be clothed in a variety of pejorative epithets, all of which describe a failure to exercise jurisdiction, sometimes called "a constructive" failure, because the tribunal has purported, but failed to do that which is required".
42 Reference was also made in Goodwin at [23] to another decision of the Full Court in LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166. There the Full Court noted at [5] that the AAT had simply reproduced as its reasons the submissions of one party without attribution, which gave rise to "a serious concern that the Tribunal has failed to bring its own mind to bear on the issues before it and thus it had constructively failed to exercise its jurisdiction".
43 At [25] of Goodwin, Basten JA stated that where an appellant alleges error in fact-finding by a primary judge, the appeal court in performing its statutory appeal function had to "engage with the evidence in relation to the area in dispute". His Honour observed at [25] that the same principle applies to a trial court.
44 In Goodwin, the primary judge's reasons for judgment were closely examined and analysed by the Court of Appeal. Various issues, which were described by Basten JA at [105] as being "critical" to the disposition of the plaintiff's claim, were found not to have been addressed by the primary judge "in a fashion which considered, let alone determined, their significance". This was so notwithstanding that the primary judge had produced what was described as "a lengthy judgment". Moreover, Basten JA found at [106] that the primary judge appeared to have accepted the evidence of a medical expert on relevant matters relating to the plaintiff's claim that he was entitled to relief because of PTSD and depression, yet then ignored that evidence.
45 The Court of Appeal's essential reasons for upholding the appellant's claim that there had been a constructive failure by the primary judge to exercise jurisdiction is reflected in [108] of Basten JA's judgment:
108 In the circumstances, there has been a constructive failure to exercise the jurisdiction conferred on the Court. There was a failure to deal with central elements of the appellant's case. Rather, a conclusion was reached which was inconsistent with facts and opinions which were recounted and not rejected. It was also reached without any coherent analysis of the appellant's own evidence as to the effects of the traumatic events on him.
46 Goodwin helpfully identifies some of the relevant principles concerning the ground of a constructive failure to exercise jurisdiction, but each case necessarily will turn on its own particular facts and circumstances. An important matter which must be taken into account in considering the application of this ground relates to the nature of the jurisdiction being exercised by both the trial court and the appeal court. In Goodwin, the trial court was exercising original jurisdiction and the ambit of the statutory right of appeal in that case was expressed by reference to there being a grievance "in point of law". In the present appeal, which is brought under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), the issue is whether the primary judge fell into appealable error in exercising the FCCA's original jurisdiction under s 476 of the Migration Act 1958 (Cth) in dismissing the appellant's claim that the IAA had fallen into jurisdictional error. It is also relevant to take into account the fact that, because the FCCA was exercising a judicial review jurisdiction, it was not a matter for that Court to make findings of fact. Generally speaking, that is the province of the administrative body whose decision is being judicially reviewed. That is not to deny, however, that such a body's factfinding may itself be amenable to judicial review on various grounds (see, for example, CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [44]-[47] per Griffiths, Perry and Bromwich JJ and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ).
47 In my respectful view, for the following reasons there has been a constructive failure to exercise jurisdiction in this case. First, the brevity of the primary judge's substantive reasoning for rejecting the two grounds of judicial review has already been noted. The primary judge explained in six short sentences in [50] and [51] as to why ground 1 was rejected (see [15] above). The primary judge's reasons for rejecting ground 2 are set out in [53] of his Honour's reasons for judgment. In both instances, the primary judge's reasons amount to little more than assertions or conclusions. In particular, in respect of ground 1, the primary judge found that the IAA had taken into account the siblings' suspected links to the LTTE. His Honour said that this matter had been expressly taken into account in the IAA's reasons "as summarised above". No specific cross-reference was given to any particular part of the IAA's reasons for decision which the primary judge considered supported his conclusions. In particular, no specific cross-reference is given for his Honour's conclusions that:
(a) the IAA took into account the appellant's siblings' suspected links to the LTTE; and
(b) there was no failure by the IAA to consider the familial connection of the appellant to his siblings.
48 These difficulties are not overcome by the fact that in [37] of the IAA's reasons for decision it stated that it had considered the appellant's circumstances "in their totality". It seems, however, that the primary judge viewed this statement as determinative (see [51] of his Honour's reasons). Whether in fact the IAA considered the appellant's circumstances in their totality fell to be determined not by a mere assertion to that effect by the IAA, but by a careful objective analysis of the IAA's reasons and the relationship of those reasons to the claims and submissions advanced before it by the appellant. The primary judge conducted no such analysis or evaluation and simply accepted and acted upon the IAA's bald assertion.
49 Similar difficulties are presented by the inadequacy of the primary judge's reasons for rejecting ground 2. In [52] of his Honour's reasons for judgment, the primary judge referred to the IAA's identification of the appellant's mother as a person who had complained to the HRC, yet she and other members of her family continued to reside in Sri Lanka in the absence of any harm during the period since the appellant left Sri Lanka. His Honour then said at [53] that the IAA's adverse reasoning "was open on the material and cannot be said to lack an evident and intelligible justification". As the Full Court observed in DAO16 at [48], to simply state that adverse findings were open and cannot be said to lack an evident and intelligible justification is merely to assert a conclusion.
50 As to the appellant's complaint that the IAA failed to give adequate reasons as to why he was not at risk, the primary judge referred at [53] to the significance which the IAA attached to the appellant's release and its finding that he suffered no harm from the interrogations. Reference was also made to the IAA's findings that neither the mother nor other members of the appellant's family been harmed since he left Sri Lanka. What is missing from the primary judge's reasons, however, is any attempt to address the appellant's reliance on the Guidelines, or the significance of his uncontested evidence that his siblings were still missing.
51 Nor does the primary judge adequately explain why he did not accept the significance in the appellant's case of his claim that he had been threatened in August 2012 with the same fate if he were to continue to complain to the authorities about their disappearance. This threat, which the IAA found had been made, arguably put the appellant in a different position from his mother. It is possible that the primary judge had this claim in mind in [53] of his reasons for judgment and the reference there to the appellant having "suffered no harm in relation to the interrogations that then subsequently took place…". But it is far from clear that this is what his Honour had in mind, bearing in mind that the appellant's complaint was not that he had suffered harm in relation to the August 2012 interrogation, but rather that he was threatened with harm on that occasion if he persisted with his complaints concerning his siblings' disappearance. This ambiguity further exposes the inadequacy of the primary judge's reasons.
52 These matters were relied upon by the appellant before the IAA. They were also prominent in his judicial review challenge before the FCCA. In my respectful view, the matters had to be directly addressed by the primary judge, but they were not. Both the appellant and any reader of his Honour's reasons for judgment is left to speculate as to why these matters were not viewed to be relevant and significant, and arguably provided some support for the appellant's judicial review challenge.
53 Secondly, and related to the first matter, the primary judge never grappled directly with important elements of the appellant's primary claim. That claim was that the IAA fell into jurisdictional error in failing to consider the risk to the appellant by virtue of his imputed links to the LTTE by reason of his family association with the two missing siblings. At the forefront of this claim the appellant relied on three paragraphs in the Guidelines which identified "risk profiles", in particular sub-paragraph 6. The primary judge made no reference at all to the Guidelines. Nor did he explain why the appellant's reliance on them was misconceived.
54 It may well be that there is an adequate explanation as to why the Guidelines did not apply. But, if that is so, it is not evident from a fair reading of the primary judge's reasons for judgment. The appellant (and, indeed, any other reader of the reasons) is simply left to speculate as to why relevant parts of the Guidelines, which the appellant squarely raised before both the IAA and the primary judge, did not indicate that he had a risk profile. The primary judge found that the IAA had taken into account the siblings' suspected links to the LTTE and also that it did not fail to consider the familial connection. But, as noted above, the primary judge made no express cross-reference to any part of the IAA's reasons for decision to underpin these assertions. One rhetorically asks whether his Honour had in mind the IAA's reasons at [10] and/or [13] of its reasons for decision. If so, a related question arises as to how these paragraphs provide an adequate response to the appellant's claims. It was an important part of his case that, in spite of all of the reforms which have taken place in Sri Lanka in recent years, his two siblings remained missing and that he was threatened with the same fate if he continued to complain about their disappearance.
55 It goes without saying that these ambiguities and shortcomings in the primary judge's reasons for judgment are not resolved by reference to what was said in the transcript. Reasons for judgment should speak for themselves. They are directed not only to the parties but to the community at large who will not have easy access to the transcript.
56 It is proper to acknowledge that the FCCA's migration jurisdiction is a high volume and challenging jurisdiction. Equally, however, it must be recognised that that Court is exercising an important judicial review jurisdiction and litigants are entitled to expect that the well-established features of the judicial process will be provided. Those features include not only the requirements of procedural fairness, but also that the Court will provide adequate reasons for its decision and properly address fundamental aspects of the parties' respective cases. Depending on the circumstances of any case, including the detail and complexity of the submissions which are made, it may be appropriate to provide relatively brief reasons for rejecting a party's case. It may also be appropriate in some cases for the Court to deliver ex tempore reasons for decision, but this does not mean that the Court is somehow excused by that method of decision-making from adequately disclosing the Court's reasoning processes, having regard to the general principles and considerations outlined in [32]-[46] above.