SZHYH v Minister for Immigration and Border Protection

ALLSOP CJ: 1 Before me is an appeal from a decision of the Federal Circuit Court of Australia made in December 2017 after a hearing in February 2017. The hearing and orders concerned an application for judicial review of the Administrative Appeals Tribunal (Tribunal) made on 23 February 2016. This was the fourth Tribunal decision since 2005 which dealt with the appellant's claims for a Protection Visa. Earlier decisions of the relevant Tribunal, being the Refugee Review Tribunal, had been dealt with by the Federal Magistrates Court. There was also a second application following the refusal of relief against the third Tribunal decision, the second visa application under the complementary protection criterion being legitimated by the decision of this court in SZGIZ v Minister of Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235. 2 I refer to that history because it is important that - after three earlier Tribunal decisions, two of which were found to be flawed - the appellant's complaints about the fourth Tribunal decision be dealt with both promptly and fully. 3 The appellant was given the opportunity by directions made by a Registrar of the Court in January of this year to file and serve submissions. He did not take up that opportunity. 4 The first respondent, the Minister, has filed written submissions which were served on the appellant's address for service. I had those submissions translated to the appellant before coming onto the bench. The appeal book for today does not contain any transcript of the hearing before the Federal Circuit Court judge, though it does contain, I am told, the transcript before the member of the Tribunal. 5 When asked today by me what submissions, if any, he wished to put, the appellant put a number of things. First of all, he referred to documents submitted to the previous Court. He indicated that the Court told him that he had two weeks to submit documents; that the judge asked the interpreter to give him an address to send those documents to; and that he forwarded them to this address. 6 Mr Wiese, who appears for the Minister, was not clear what this related to, but thought it may relate to an opportunity to respond to something that the Minister's counsel was asked to put on. I then asked the appellant for any further submissions. The transcript will reveal what he said through the interpreter, but he made assertions that both the Court and the Tribunal had failed to give him an opportunity to put his case and had failed to give him an opportunity to deal with their views, which were contrary to his interests. 7 The view about the Court may rest on a misunderstanding that the Court rehears the facts and reconsiders the underlying material. That is the province of the Tribunal. The Court is restricted to examining the legality of the Tribunal decision. That may involve carefully looking at the facts not to re-find them, but is ultimately to assess whether the Tribunal's dealing with the facts has been legally reasonable, that is, not irrational, or unreasonable or lacking a proper justified foundation. In any event, the appellant has asserted that both the Tribunal and the Court failed to give him an opportunity to reply. 8 I should add that the appellant also asserted that I, today, had not given him a proper opportunity, in effect, by having the submissions translated for him before coming on the bench. These submissions were served on him and, to the extent he has this litigation, it was for him to seek some interpretation or translation before today. In any event, I do not propose to finalise the matter today, and the appellant should be clear that if he wants to understand with precision what the Court below said and what the Minister says in the present proceedings, he should have them translated so that he understands them. 9 I have read the Tribunal decision, which is both detailed and dense. I do not make that comment critically. It covers a lot of detail about the appellant's claims and the occasions in the past on which he has recounted them. One of the issues that arises is whether the disbelief of the appellant's version of events is properly founded on the kinds of inconsistency that have been identified. I propose to make an order for pro bono assistance of the appellant and I propose to give the appellant sufficient time with that pro bono assistance to put further submissions or any evidence to me. That will be with the advantage of the transcript of the hearing before the Federal Circuit Court judge. The appellant already has the transcript of the hearing before the Tribunal in the court book. 10 The appellant should understand that it is not in his interest to ignore opportunities to put his case in writing and to simply come to the Court with assertions of matters said from the bar table. If he wishes to put submissions on with the assistance of the pro bono counsel, he will have that opportunity. If that requires evidence, he will need to file an affidavit sworn and witnessed. 11 The orders that I propose to make, subject to hearing from the appellant, are as follows:

1. On or before 5pm on 11 May 2018, the appellant provide to the first respondent: (a) his residential address; and (b) his email address, if he has one.
2. The appellant be referred to a lawyer for legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth) by the issue of a referral certificate in accordance with Form 9.
3. On or before 25 May 2018, the transcript of the hearing before the Federal Circuit Court of Australia be provided by the first respondent to the counsel and/or solicitor who accepts the pro bono appointment. To the extent that the first respondent becomes liable for payment of costs for that transcript, reserve the question of the responsibility for payment as such.
4. On or before 15 June 2018, the appellant file and serve: (a) any submissions on which he seeks to rely in this appeal; and (b) any evidence or material he wishes to put before the Court.
5. Subject to the Court ordering otherwise, the matter be stood over part-heard to 10:15am on 19 June 2018.
6. Further argument be heard at the hearing on 19 June 2018 unless it proves necessary for the first respondent to file and serve written submissions, on or before 19 June 2018 directions will be made for them to be filed and for the appeal to proceed on another day.
7. Liberty be granted to the pro bono lawyer: (a) to file and serve a draft amended notice of appeal; and (b) to approach the associate to the Chief Justice, in consultation with the first respondent, to vary these orders if he or she cannot comply with them in time or if 19 June 2018 is an inconvenient date.
8. Costs be reserved. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.