The appeal to this Court
26 The appellants' grounds of appeal and particulars are, in substance, identical to those in the Federal Circuit Court. As I explained to the appellants, an appeal to this Court is not simply another hearing of the same allegations of jurisdictional error. It is necessary for the appellants to identify error in the decision of the Federal Circuit Court. Further, the jurisdiction exercised by the Federal Circuit Court, from which this appeal is brought, is limited. The Federal Circuit Court did not, and does not, have a jurisdiction to rehear the application. The effect of s 476 of the Migration Act is that the Federal Circuit Court only has the power to review for jurisdictional error: see ARP15 v Minister for Immigration and Border Protection [2015] FCA 1220 [41]-[43].
27 In relation to the first four grounds of appeal there is no error in the reasoning of the Federal Circuit Court which I have described above. The judicial review application relied upon alleged errors in factual findings by the Tribunal. There was evidence to support each of the Tribunal's conclusions. And neither the exercise of the evaluative judgement by the Tribunal, nor the challenged factual bases upon which that judgement was exercised was irrational or unreasonable (assuming, without deciding, that a challenged factual basis on these grounds is a sufficient basis for judicial review: The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [141]-[194]). In particular, the following matters can be added to the analysis of the Federal Circuit Court.
28 First, part of the basis for the Tribunal's rejection of the appellants' evidence was the demeanour of the first and second appellants. The Tribunal described their evidence as having a "rehearsed quality". However, this point should not be overstated, particularly where other parts of the appellants' evidence were accepted and especially where some of the appellants' grounds of judicial review asserted that there was no evidence for the conclusions reached: Fox v Percy [2003] HCA 22; 214 CLR 118, 128-129 [28]-[31] (Gleeson CJ, Gummow and Kirby JJ).
29 Secondly, the Tribunal was entitled to place some weight on inconsistencies between the evidence of the first appellant and that of the second appellant and also internal inconsistencies in the evidence of the first appellant. These inconsistencies were relevant to the Tribunal's weighing of the evidence given by the first and second appellant against the inferences that might be drawn from matters such as the first appellant's failure to practise as a Jehovah's Witness between 2007 and 2012.
30 Thirdly, it was open to the Tribunal to conclude under s 91R of the Migration Act that the first appellant engaged in "the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee".
31 However, the fifth ground of appeal is more difficult. It is necessary to set that ground out in full:
The [Federal Circuit Court] has erred in that it comes to the conclusion that there are not substantial grounds for believing there was a real risk the [appellants] would be subjected to significant harm because of their religious conversion and the fact they are former Sunni Muslims. Also substantial grounds include the current political/religious situation in Lebanon and the manner in which apostasy/conversion is treated by the general Muslim population in Lebanon. (Emphasis added).
32 Counsel for the Minister referred to the italicised parts of this ground of appeal and accepted in the finest traditions of advocacy, by a very generous reading of their ground of appeal, that it was possible to read this ground of appeal as expressing a concern about the foundation for the Federal Circuit Court's reasons concerning whether the appellants would suffer significant harm as a result of their religious conversion.
33 I accept that this ground of appeal should be read as inviting consideration of the sufficiency of the reasons of the Federal Circuit Court on this ground before it. The proper approach when an applicant is unrepresented and has difficulty with English is to focus, as counsel for the Minister did, on the substratum of the matters raised rather than the precise terms of the grounds of appeal: SZORZ v Minister for Immigration and Citizenship [2011] FCA 593 [7] (Perram J).
34 As counsel for the Minister accepted, the ground of review (e) before the Federal Circuit Court was essentially a ground that alleged that the conclusions of the Tribunal in relation to those matters were either (i) irrational or (ii) unreasonable in either the narrow or the broad senses described in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332: see ARP15 v Minister for Immigration and Border Protection [2015] FCA 1220 [34]-[36].
35 The Federal Circuit Court was right to conclude that it was open to the Tribunal to reach the conclusions (1) and (2) set out at [24] above. As I have explained, the Tribunal considered these issues in detail and referred to relevant country information. The Tribunal concluded that the applicants did not face a real risk of persecution for those reasons and did not face a real risk of significant harm for such reasons. The Tribunal's conclusions in this regard were open on the evidence.
36 However, neither of those conclusions addresses an essential integer of the ground of review before the Federal Circuit Court: were there "substantial grounds [in the irrationality or unreasonableness sense] for believing there was a real risk the [appellants] would be subjected to significant harm because of their religious conversion and the fact they are former Sunni Muslims"? Instead, the conclusions (1) and (2) at [24] above focus upon the appellants' "actual or imputed Sunni religion" rather than their claim that they would be subjected to significant harm arising from their conversion from the Sunni religion.
37 The Minister made two submissions in response to this issue.
38 The first submission by the Minister was that on a proper construction of the reasons of the Federal Circuit Court the court did not limit its consideration of this ground of review to the paragraphs of the Tribunal's reasons that it quoted. In particular, counsel for the Minister pointed to an earlier paragraph of the Tribunal's reasons ([92]), in a different section, where the Tribunal concluded that there was no more than a remote chance that (i) the first appellant's activities as a Jehovah's Witness would have been observed by Muslims from the Lebanese community in Australia, or that (ii) any of the appellants would be asked questions by their family if they were to return to Lebanon. In the same paragraph the Tribunal also concluded that if the appellants were asked then they could explain that they did not have a genuine interest in the religion but were only engaged in these activities in order to stay in Australia.
39 I do not accept that the conclusion of the Federal Circuit Court on this point took into account any paragraphs other than the nine paragraphs set out. In particular, immediately prior to setting out those paragraphs at [20], the Federal Circuit Court said that the "Tribunal did consider the current political and religious situation in Lebanon. At paragraphs 94 to 102 of its reasons for decision, the Tribunal said the following". In other words, the ground of judicial review was dismissed by reliance upon the nine paragraphs which then followed.
40 Further, after these paragraphs the Federal Circuit Court said:
The Tribunal considered these issues in detail and referred to relevant country information. However, the Tribunal concluded that the applicants did not face a real risk of persecution for those reasons and did not face a real risk of significant harm for such reasons. It seems to me that the Tribunal's conclusions in this regard were open on the evidence.
41 I accept the submission by counsel for the Minister that the reference to "these issues" by the Federal Circuit Court is a reference to the issues raised in the ground of judicial review. However, the Federal Circuit Court's conclusion that the appellants "did not face a real risk of persecution for those reasons" must be a reference to the Tribunal's reasons for decision which had been described by the Federal Circuit Court at [20], immediately before the quoted paragraphs, and then quoted verbatim.
42 For these reasons the Federal Circuit Court failed to address whether there were "substantial grounds [in the irrationality or unreasonableness sense] for believing there was a real risk the [appellants] would be subjected to significant harm because of their religious conversion and the fact they are former Sunni Muslims".
43 The second submission by counsel for the Minister was that the error by the Federal Circuit Court could not make any difference.
44 As to this second submission, there may be doubt concerning whether it is open for this Court to dismiss an appeal on the ground that a failure to address a significant submission "would inevitably result in the making of the same order". That would apply strictly the remarks of Mason CJ, Wilson, Brennan, Deane and Dawson JJ in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145, which was itself a case concerning the exercise of a power to allow an appeal despite a failure of procedural fairness. There may be doubt concerning whether that decision would always be applied in cases involving significant denials of procedural fairness: see, for instance, Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541 [108] and, by analogy, Weiss v R [2005] HCA 81; 224 CLR 300, 317 [45] (the Court).
45 In any event, I am not satisfied that if this matter had been considered by the Federal Circuit Court then the application for judicial review would inevitably have been dismissed. It would be necessary to focus closely on the reasoning in [92] of the Tribunal's reasons and other passages such as [106]. The reasonableness or rationality (in the sense I have described) of findings in those paragraphs would need to be assessed in the context of the whole of the Tribunal's reasons. Further, it would also invite consideration of other matters. For instance, was the Tribunal in [92] considering whether the truthful explanation about conversion would endanger the appellants? Would that be a sufficient ground for the application for judicial review to succeed? None of these matters was addressed in detail on this appeal. I do not suggest that counsel for the Minister should have addressed these matters on this appeal, but I point this out merely to say that I am not satisfied that the application for judicial review would inevitably have been dismissed.