ISSUES ARISING ON THE APPEAL
12 To succeed on his application for judicial review, it was necessary for the appellant to show that the Tribunal's review of the delegate's decision was affected by jurisdictional error: s 474 of the Act; see also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
13 The grounds of appeal are expressed, without alteration, as follows:
1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns.
14 The appellant has not filed written submissions in support of these broadly cast grounds. At the hearing, he stated that he did not wish to make oral submissions. He said that he wished to rely only upon the matters stated in his notice of appeal. The appellant repeated this preference several times.
15 In BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095, Flick J considered the approach to be pursued by this Court in the exercise of its appellate jurisdiction where a litigant in person relies on broadly cast grounds of appeal. His Honour said (at [10] - [12]):
10 It should not be left to this Court on appeal to itself review the reasons for decision of the primary Judge and attempt to identify appellable error. Nor should it be left to this Court to itself try to identify a ground of review that may have been available to the Applicant, irrespective of whether it was previously advanced for consideration.
11 In such circumstances, it is considered that the preferable approach that should be pursued is for this Court to review the reasons for decision of the Federal Circuit Court Judge and to determine whether there is any self-evident error as to the manner in which that Court resolved the grounds of review previously advanced for consideration and which it would appear are sought to be re-agitated on appeal. A course which construes Grounds of Appeal which impermissibly seek to repeat arguments directed to the question of whether the Tribunal erred as though they were expressed as an argument that the Federal Circuit Court erred in not accepting like arguments previously advanced is a course which:
• is commonly pursued in this Court;
• recognises difficulties confronting unrepresented appellants; and
• recognises that the Court's duty is not solely to the unrepresented litigant but 'entails ensuring that the trial is conducted fairly and in accordance with law' and a duty to strike a 'balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties' (cf. Hamod v New South Wales [2011] NSWCA 375 at [309] to [315] per Beazley JA, Giles and Whealy JJA agreeing; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [39], (2016) 241 FCR 30 at 44 to 46 per Flick, Griffiths and Perry JJ).
In striking that balance, it is necessary to balance compliance with the requirement imposed by r 36.01(2)(c) of the Federal Court Rules 2011 (Cth) to state 'briefly but specifically, the grounds relied on in support of the appeal' and the need to ensure that an unrepresented appellant 'suffers no meaningful disadvantage in the conduct of her or his case because she or he does not have the skills or knowledge of a lawyer' (MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] per Mortimer J).
12 In the absence of any appellable error having been specifically identified in the purported Grounds of Appeal, or in the absence of an ability to construe a Ground as meaning that the primary Judge erred in not accepting much the same argument as previously advanced, this Court has no general function to resolve an unspecified and unidentified error. A consideration as to whether there is any self-evident error, it is recognised, may well fall far short of a Judge of this Court independently parsing and analysing a Tribunal decision with a view to identifying a potential argument as to jurisdictional error and thereafter proceeding to resolve that newly formulated argument. In the absence of a self-evident error, this Court has no general duty or function to itself articulate a question of law.
16 Interpreted generously toward the appellant, the grounds of appeal raise three jurisdictional errors on the part of the Tribunal which, it is impliedly alleged, the primary judge failed to identify. The first is that the Tribunal's decision is affected by legal unreasonableness. The second is that the Tribunal misconstrued or misapplied s 91R of the Act. The third is that the Tribunal misconstrued or misapplied the Complementary Protection Criterion, particularly the statutory definition of "significant harm" in s 36(2A).
17 The appellant was self-represented before the primary judge. In his originating application he relied on 20 grounds of review, many of which are not sought to be re-agitated before this Court. He made a further allegation of jurisdictional error in an affidavit filed in support of his application for judicial review.
18 The primary judge said that the grounds were discursive, overlapped and largely sought to invoke merits review (at [19]). It appeared, the primary judge said, that the grounds of review and portions of the appellant's affidavit had been cut and pasted from a matter pertaining to a female visa review applicant and bore no relation to the issues that arose before the Tribunal. I share that view.
19 There is real doubt as to whether the second and third issues now sought to be agitated by the appellant on the appeal were fairly raised in the proceedings before the primary judge. As the primary judge found, the grounds of review raised a broad and un-particularised allegation that the Tribunal had misapplied the law. The grounds did not, however, raise any contention concerning the application and proper construction of either s 36(2A) or s 91R of the Act.