GSQ18 v Minister for Home Affairs

1. The appeal be dismissed with costs.
2. Order 1 is not to be entered until the publication of revised reasons. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 This appeal from the decision of the primary judge of 9 April 2019 was filed, in accordance with the applicable time limits, on 29 April 2019. The notice of appeal is in large respects unsatisfactory. The appellant cannot be criticised for this because the reasons of the primary judge were not published until 24 May 2019 (that is, almost a month after the notice of appeal was filed). When the matter first came on before me I inquired as to whether the reasons were delivered ex tempore (in circumstances where this is not evident from the face of the judgment, which merely records orders being made on 9 April 2019). I am informed by Ms Burnett, who appears on behalf of the first respondent (Minister) that the reasons were delivered following a hearing on that day. 2 In circumstances where the appellant has only a very limited understanding of English, it is to be expected that he was not in a position to appreciate the detail of the reasons delivered ex tempore. In those circumstances the appropriate course, in my view, would have been for the primary judge to have extended the period to allow any appeal to this Court to a date after which revised reasons had been published and could be reviewed. 3 In any event, this course was not adopted with the consequence, as one of the grounds of appeal notes: … it is more than 20 days the Honourable Judge (sic) in the Federal Circuit Court has not published the reasons for the judgement which significantly affected my right to appeal to provide reasons why I believe that the Federal Circuit Court in dismissing my appeal is wrong. 4 In these circumstances I was anxious to ensure that the appellant, having now had the opportunity of reviewing the reasons for judgment and obtaining advice (apparently through the assistance of the local Tamil community), was able to amend his notice of appeal. Notwithstanding that the reasons of judgment were now provided some time ago, the grounds of appeal remained unchanged, despite this opportunity being afforded to the appellant. 5 The application made before the primary judge and its background were summarised, with respect accurately, at [2]-[23] of the reasons of the primary judge. Before the primary judge it was alleged that the decision of the second respondent (Authority) dated 22 November 2018 (Decision) was infected with jurisdictional error on the following bases: (a) Identifying wrong issue (Ground 1); (b) Asking wrong questions (Ground 2); (c) Ignoring relevant material (Ground 3); and (d) Incorrect interpretation and/or application to the facts applicable law (Ground 4). 6 The primary judge found Ground 1 was not made out because the assertion of a "wrong issue" was unparticularised and was incapable of making out any relevant error: at [29]. The primary judge held that on the face of the decision, the Authority correctly identified "the rule of law" (whatever that is supposed to mean). More relevantly, the primary judge concluded that on the face of the decision, "the Authority had a real and meaningful engagement with the applicant's claims and submissions and complied with its statutory obligations in the conduct of the review". 7 In relation to Ground 2, it was held that a generalised assertion of a wrong question is not, on its face, capable of making out any jurisdictional error. The primary judge held the decision correctly identified the relevant law and made findings that were open for the reasons given by the Authority. 8 Ground 3 was not made out because the generalised assertion of ignoring relevant material was not, on its face, capable of making out a jurisdictional error. His Honour held that there had been no identification of any relevant consideration that the Authority failed to take into account. 9 In relation to Ground 4, it was again said that this was a bare assertion of an incorrect interpretation or application of the facts to the applicable law and hence was not capable of identifying any jurisdictional error. 10 It is fair to say that there was a somewhat formulaic approach taken to the relevant four grounds which at first glance caused me a degree of disquiet. With this in mind, and despite the grounds of appeal (other than Ground 4 which I will deal with separately), being inadequately formulated or expressed at a very high level of generality, I have reviewed the Decision with some care to ascertain whether or not there was some arguable jurisdictional error evident. 11 It seems to me the Decision does show some engagement with the claims for protection made and the findings and reasoning outlined at [8]-[23] of the judgment below were, on the identified materials, clearly open. 12 In this Court, the appellant has raised the following four grounds: 1. The Court below erred in finding that the Immigration Assessment Authority (IAA) had failed to properly consider the Applicant's claims under s36(2)(a) and s36(2)(aa) of the Migration Act 1958 ("the Act"). (Appeal Ground 1) 2. I respectfully noted that it is more than 20 days the Honourable Judge in the Federal Circuit Court has not published the reasons for the judgement which significantly affected my right to appeal to provide reasons why I believe that the Federal Circuit Court in dismissing my appeal is wrong. (Appeal Ground 2) 3. The Applicant seeks leave to rely on the following ground. It is submitted that the ground as presented has merit and no prejudice to the Respondent is evident. In these circumstances it is submitted leave can be granted consistent with the principles developed in SZSFS v Minister for Immigration and Border Protection [2015] FCA 534. (Appeal Ground 3) 4. The decision of the IAA is without any evidence and it is illogical and made on mere assumption." (Appeal Ground 4) 13 For completeness, I will deal with each of them notwithstanding the general comment that I have made at [11] above.