SZMUV v Minister for Immigration and Citizenship

Inadequacy OF Reasons? 9 Reservation is occasioned by the manner in which the Federal Magistrate has expressed his reasons for decision. Those reasons occupy some nine pages - of those nine pages, over two pages set out verbatim the submissions of the Minister as to the relevant "background"; one page sets out verbatim the grounds of the Amended Application; and a further two pages adopt and set out verbatim the Minister's written submissions on substantive issues. The balance of the judgment - some four pages - sets out the reasons as expressed by the Federal Magistrate. 10 It is not for this Court, exercising an appellate jurisdiction, to itself consider the Amended Application and to conclude - for reasons not expressed by a Federal Magistrate - whether it would have also reached the same conclusion. It is not for this Court to provide the findings and reasons that should have been provided by the Federal Magistrate. This Court should be provided with the invaluable assistance that is in fact gained from a reading of the reasons of the Federal Magistrate whose decision is under appeal - rather than assistance from the written submissions previously advanced on behalf of the Respondent Minister. 11 In the present proceeding, it is not at all self-evident that the Magistrate: (i) independently considered each of the grounds upon which the application was being advanced in that Court; and (ii) provided reasons for his conclusions that each of those grounds was to be rejected. 12 The Respondent Minister did not argue that the Federal Magistrate was not under a duty to provide reasons for his decision. The argument on behalf of the Minister was that this obligation had been discharged. 13 An insistence upon a decision-maker expressing his or her own findings and reasons, and resisting a course whereby submissions otherwise filed by a party are "adopted" or "incorporated" as the reasons of the decision-maker, is not a mere formality. It is an insistence upon a discipline requiring the decision-maker to independently address the facts and circumstances of a particular case and to independently apply the relevant legal principles to those facts and circumstances. That which may appear self-evident upon a mere reading of submissions prepared by others often proves to be an over-simplification when the discipline of making findings and expressing reasons is independently undertaken. 14 The provision of reasons serves a valuable purpose in the administration of justice: Connell v Auckland City Council [1977] 1 NZLR 630. Chilwell J there observed, at 634: A matter which I have not mentioned, which is another reason for requiring the stating of reasons, is this: every litigant who loses his action, whether it be in the civil or criminal jurisdiction, is a disappointed litigant. That is inevitable and is a logical result of our judicial system. There is all the world of difference between a disappointed litigant and a disturbed litigant. In the latter category come litigants who cannot understand why the decision went against him. In this case the appellant would be justified in feeling disturbed as he presumably does because he has brought this appeal. He is disturbed that justice did not appear to him to have been done. It is of the utmost importance that Her Majesty's subjects should have faith in our judicial system. By far the greatest number of civil and criminal cases come before the lower court. One should not draw distinctions between courts but it is of fundamental importance that the lower courts, which deal with so much work and with whom the average citizen has greater contact, should maintain respect for and faith in the judicial system. Applied: SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 at [20], 102 ALD 115 at 120. In a subsequent decision of the New Zealand Court of Appeal in Bell-Booth v Bell-Booth [1998] 2 NZLR 2 at 6 the Court observed: Reasons for judgment are a fundamental attribute of the common law. The affinity of law and reason has been widely affirmed and a Judge's reasoning - his or her reasons for the decision - is a demonstration of that close assimilation. Arbitrariness or the appearance of arbitrariness is refuted and genuine cause for lasting grievances is averted. Litigants are assured that their case has been understood and carefully considered. If dissatisfied with the outcome, they are able to assess the wisdom and worth of exercising their rights of appeal. At the same time public confidence in the legal system and the legitimacy and dynamic of the common law is enhanced. The legal system can be seen to be working and, although possibly at times imperfectly, striving to achieve justice according to law. 15 In Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407, the Court of Appeal was entertaining an appeal from an award entered in the Compensation Court. The primary Judge in his reasons stated that regardless of any determination of his own, the matter was to be removed forthwith to the High Court. The delivery of "lengthy reasons", according to the primary Judge, was thus considered to be of "little assistance". The transcript of submissions was incorporated into the reasons and preference expressed for the submissions of the worker and the State. "The applicant", the primary Judge concluded, "has discharged his onus in all respects and is entitled to an award". Kirby P (as His Honour then was) voiced similar concerns to those expressed by the New Zealand Court of Appeal when he observed (in part) as follows, at 416: … [I]t is worth collecting the reasons which obliged his Honour to provide more than the findings offered in this case. They included: (1) The fact that the High Court had returned the cause to the Compensation Court specifically to permit the ordinary procedures of the law to be followed. These include proper fact finding at first instance. Only if this course is followed will appellate courts be saved the time otherwise taken in determining the facts, isolating the issues, removing issues not seriously in contention and addressing those which are; (2) The judicial reasons at first instance are of benefit not only to the parties and their advisers, but also to the appellate court. The analysis of issues by one legally trained mind will often help others to cut through the issues on appeal to those which are most important. This is especially true in a case where multiple issues are raised, as in this case; (3) It may be possible to conceive an instance where the incorporation of submissions by one party in reasons for judgment would be an adequate compliance with the judicial duty to provide reasons. That was certainly not the case here. … In applying this decision it has subsequently been held that "… it is generally true that merely to set out two competing sets of reasons and to say that one is preferred … is not a satisfactory method of complying with the judicial duty to give reasons": Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238 at [66] per Heydon JA (Hodgson JJA and Ipp AJA agreeing). See also: Goldsmith v Villanueva [2000] NSWSC 1181 at [13] per Adams J; Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 at [44] to [45] per Perram J. 16 In the context of hearing appeals arising under the Migration Act 1958 (Cth), this Court is heavily dependent upon the Federal Magistrates Court properly discharging the functions entrusted to it. And an unsuccessful litigant before that Court is also entitled to go away knowing the reasons of the Federal Magistrate as to why he has lost. A course of simply incorporating the submissions prepared by others exposes a disappointed litigant to a sense of grievance - however misplaced - that the Federal Magistrate has merely "rubber stamped" the administrative process to date and the approach being pursued by the Minister. 17 A deficiency in reasons may be exposed in a number of ways - there may, for instance, be an absence of findings upon which a conclusion has been reached, or an absence of reasons directed to the findings that have been made. In the present proceeding, each of the grounds set forth in the Amended Application has been addressed, albeit by an incorporation of the Minister's submissions as the reasoning process of the Magistrate. But that, it is respectfully considered, is the deficiency. A litigant is entitled to reasons as formulated by and expressed by the Magistrate. To adopt any other course is only to encourage an appearance that the Magistrate has not independently applied his own mind to the application before the Court and to encourage a course whereby the discipline of writing reasons is sacrificed to expediency. 18 Such observations do not necessarily entail that reasons for decision should not, in an appropriate case, incorporate proposed findings or reasons otherwise set forth in the submissions of one or other of the parties. Much will depend upon the circumstances of each individual case. But the minimum requirement is that a litigant can discern from the reasons provided the basis upon which a Magistrate has in fact proceeded. A litigant is entitled to feel confident that the reasons provided are those of the Magistrate and not a mere adoption of the reasons of others without independent thought being given to each of the arguments advanced and resolved. 19 The difficulty in the present proceeding emerges from the extent to which the Magistrate has pursued a course of incorporating the work of others. 20 That difficulty is only compounded by the generality of the submissions previously advanced by the Respondent Minister and thereafter incorporated in the Magistrate's reasons. A principal ground being advanced before the Federal Magistrate by the present Applicant was a denial of procedural fairness "by reaching adverse conclusions that the Tribunal did not find the applicant to be a credible or reliable witness, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters". The written submission advanced by the Minister and incorporated into the reasons simply asserted: The particulars of this ground are that the Tribunal's adverse credit findings against the applicant were not "obviously open to it" and that (therefore) it did not give the applicant an opportunity to be heard on those matters. There is no substance in this complaint. The applicant was on notice from the delegate's decision that his credit was in issue. Furthermore, contrary to the applicant's assertion, the adverse credit findings of the Tribunal were obvious inferences from the evidence before it. The Magistrate then concluded that "(t)he adverse credibility findings made by the Tribunal were open to it on the material before it": [2008] FMCA 1644 at [5]. 21 Both the submission and the reason provided are but generalities. In contrast stand the reasons of the Tribunal. The Tribunal expressed its finding as to credibility and then went on to provide instances to support its finding. For example, the Tribunal concluded as follows: [84] I did not find the applicant to be a credible or reliable witness. With respect to the material aspects of his claim I found his evidence to be vague and at times confusing. [85] I do not accept that the applicant is or was a member or office holder in the Chatra League or the Awami League. The applicant's evidence was vague and full of generalities. I would have expected that if he had been a General Secretary or any office holder he would have been able to give me a more detailed account of how he joined the party, the nature of his activities with which he was involved and of his role as office holder. I found his evidence to be confused and lacking in credibility. He claimed that a relative was a Member of Parliament for the Awami League however could not tell me the name of his seat or any other details relating to his candidature. I would have expected that he would have had a better understanding of the organisation of the Awami League and how it operates in the Comilla area and greater knowledge of the structures and organisation of the party. 22 On balance, however, it is considered that the reasons of the Magistrate: (i) disclose the reasoning process in fact adopted; and (ii) display no appellable error. Notwithstanding the extent to which the Magistrate has placed reliance upon the material incorporated within his reasons for judgment, the remaining brevity of the language of the Magistrate does indicate that he did give independent consideration to each of the grounds sought to be advanced. The Magistrate correctly concluded that "the applicant failed before the Tribunal because he was not believed": [2008] FMCA 1644 at [5]. He then went on to address, albeit briefly, the arguments founded upon an alleged breach of s 424A of the Migration Act 1958 (Cth) and an allegation of actual bias. The decision in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638, 105 ALD 25, it was concluded, was to be distinguished. The very process of distinguishing that decision exposes not only an independent consideration of the facts of SZDGC but an independent consideration of the facts of the case then before him and an analysis of the decision of the Refugee Review Tribunal. 23 Obvious care must be taken to ensure that an appeal does not become a vehicle for simply criticising the manner in which the reasons of a judge at first instance have been expressed. Recognition must also be given to the fact that the Federal Magistrates Court is entrusted with a primary role in resolving migration cases. In that Court in 2007 over 1500 migration applications were filed and more than 2000 migration matters were finalised. These figures were higher still in each of the three preceding years. Any review of the reasons as provided by a Federal Magistrate must necessarily take into account the sheer number of the cases that that Court has to resolve. But there is a point below which the economy of language with which reasons may be expressed cannot trespass. 24 In the present proceeding it is unquestionably the case that the reasons for decision of the Federal Magistrate may have been better expressed and more fully expressed. Had that course been taken, the Applicant may well have continued to express regret - but he would at least feel confident that his case had been thoroughly considered. 25 Notwithstanding the extent to which the Magistrate has simply incorporated the submissions of the Federal Magistrate, it is nevertheless considered that he did carefully review the materials before him and in doing so committed no error.

Section 424A? 26 It was unclear whether the Applicant either: (i) wished to abandon his existing draft Notice of Appeal and now rely upon his Written Submissions, which directed attention to s 424A and s 425; or (ii) wished to now confine his arguments to s 424A and s 425. The Applicant's brief oral submissions (via his interpreter), however, resolved this uncertainty - he wished for all arguments to be now entertained and resolved. Indeed, his oral submissions went beyond the arguments previously canvassed and contended that: (iii) the Tribunal was under a duty to enquire further into the authenticity of documents provided by him to the Tribunal and that he be afforded further time in which to address the issues arising. 27 But difficulties confronted the Applicant whichever route he wished to pursue. 28 Had reliance been placed upon the handwritten Grounds of Appeal those Grounds would have provided no basis upon which leave to appeal would have been granted. Those Grounds fail to comply with Order 52 r 13(2) of the Federal Court Rules 1979 (Cth). And, even if the Grounds were to be construed as an attempt to re-agitate each of the arguments previously advanced before the Federal Magistrate, each would be without substance. There is no appellable error discernible from such reasons as were provided by the Federal Magistrate. Insofar as the second handwritten Ground seeks to rely upon "factual errors" committed on the part of the Tribunal, mere factual error alone would not constitute a basis upon which the decision of the Tribunal could be set aside. 29 Sections 424A and 425 of the Migration Act 1958 (Cth) are provisions fundamental to ensuring that a party is accorded such procedural fairness as has been considered appropriate by the legislature. 30 Before the Federal Magistrate a breach of s 424A was raised for resolution. The economy of language with which the Magistrate's reasons have been expressed only exposes a minimum of how that argument was perceived and resolved. The Amended Application relevantly set forth this ground upon which review was sought as follows (without alteration): The Tribunal did not give to the applicant before the hearing the information that it had about the political history and it did not give to the applicant the country information it had about Bangladesh. The Tribunal used this information while making the decision. This was against section424A of the Migration Act 1958. The Magistrate resolved this Ground as follows: [6] There was nothing upon which the Tribunal decision was likely to turn which required the disclosure of information pursuant to s.424A of the Migration Act. The Tribunal considered all of the applicant's claims. The Tribunal also had regard to documents submitted by the applicant immediately after the decision of the delegate. In addition to this conclusion, the Magistrate also incorporated the following submission as advanced before him by the Minister: [10] I otherwise agree with the Minister's submissions and adopt for the purposes of this judgment, with minor amendments, paragraphs 17 to 23 of the Minister's written submissions: … Ground 3 - breach of s.424A The particulars of this ground are that the Tribunal failed to give the applicant country information about Bangladesh before the hearing which it relied upon. However, it is well established that s.424A does not apply to country information, as such information falls within s.424A(3)(a). There is no arguable substance to this ground. (Citations omitted) 31 The breach of s 424A now sought to be raised in the written Outline of Submissions is clearly not the same argument advanced before the Magistrate for resolution. There is no reference to this new argument in the brief affidavit relied upon before the Magistrate or elsewhere in any of the written submissions filed by the Minister before the Federal Magistrate. 32 The written submissions now filed in this Court are considered to be an attempt to raise for the first time on appeal an argument that has not previously been argued. 33 Given the confined jurisdiction entrusted to the Federal Magistrates Court to review decisions of the Tribunal, reservation is expressed as to whether or not this Court on appeal can entertain a fresh ground not previously considered by a Federal Magistrate. Assuming, however, that this Court does have a discretion to permit a fresh argument to be raised, that discretion would be exercised adversely to the present Applicant. 34 Central to the exercise of any discretion is an assessment as to whether it is "expedient in the interests of justice" to allow the fresh argument to be now relied upon: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. Kiefel, Weinberg and Stone JJ there concluded: [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so … [47] In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: "It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish." [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. Applied: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [163], 147 FCR 51 at 84 per Madgwick J (Conti J agreeing). 35 It is not expedient in the interests of the administration of justice to raise this new ground for principally two reasons, namely: (i) on one view, the argument now sought to be advanced is (perhaps) a more specific expression of an argument which was previously advanced and resolved by the Federal Magistrate. One argument previously advanced and resolved was a generally expressed ground as to a denial of procedural fairness. If this be the case, the Applicant has had an opportunity to advance his submissions and suffers no prejudice by being denied a yet further opportunity to refine his argument; (ii) if it be in fact a fresh ground, as it most probably is, the present Applicant suffers no prejudice as he was given an opportunity to make submissions on the question as to whether documents had been fabricated. The reasons of the Tribunal set forth the information it had available to it concerning what it identified under the heading "Fraudulent Documents". In its "Findings and Reasons" the Tribunal stated in part as follows: [91] I have considered the documents submitted by the applicant however as put to the applicant at hearing there is an extremely high prevalence of false documentation in Bangladesh and such documents are easily obtainable. His evidence was that the documents were obtained by his family for the purpose of supporting his application and have been prepared in English rather than Bengali. … 36 No injustice to the present Applicant is occasioned, it is considered, by refusing to allow the Applicant to raise the argument as now formulated in his written Outline of Submissions. 37 Also relevant to any exercise of discretion is any explanation for the failure to raise the fresh argument sought to be relied upon: e.g. MZXEN v Minister for Immigration and Citizenship [2007] FCA 829, 240 ALR 582. In the present proceeding no explanation was forthcoming as to why the argument was not previously relied upon before the Federal Magistrate. 38 There is equally no injustice to the Applicant in not now entertaining the argument as to the failure on the part of the Tribunal to itself initiate further inquiries, as there is no such general duty imposed upon the Tribunal. In Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553, the Full Court held that there is no duty upon the Tribunal to undertake its own investigation into the authenticity of documents supporting a visa application. Black CJ, von Doussa, Sundberg and Mansfield JJ there noted at 561: Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels … In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect. In that case, the purported source of the Tribunal's obligation to make inquiries was s 420 of the Migration Act. Nor can a duty to enquire be sourced from s 427(1)(d) of the Migration Act. This provision empowers the Tribunal to make its own inquiries for the purpose of reviewing a decision, but it creates no obligation on the part of the Tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, 78 ALD 224 per Gummow and Hayne JJ at [43] and Callinan J at [124]; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 per Heerey, Nicholson and Mansfield JJ at [24] to [25]; SZATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595, 83 ALD 596 per Hely J at [22]. In the present case, there is no error in the Tribunal proceeding to make its decision without pursuing further inquiries of its own initiative into the veracity of the Appellant's documentation.

Conclusions 39 In refusing leave to appeal it is considered that the decision of the Federal Magistrate is not attendant with sufficient doubt to warrant the grant of leave and that the Applicant thereby suffers no substantial injustice.

ORDERS 40 The Orders of the Court are: 1. Leave to appeal is refused. 2. The Applicant is to pay the costs of the First Respondent. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 9 March 2009 The Applicant The Applicant appeared in person

Solicitor for the Respondents Ms E Warner Knight (Australian Government Solicitor)