SZSSG v Minister for Immigration and Border Protection

ALLSOP CJ: 1 This is an application for an extension of time in which to file and serve a notice of appeal against orders made by the Federal Circuit Court in October 2015 dismissing an application for review of a decision of the Refugee Review Tribunal, as it was then known, made on 6 March 2013. There has been a significant delay in making this application, some two years. That delay has been explained by the first applicant in an affidavit sworn in February 2018 which was read before me. I propose to allow the extension of time, allow the appeal and remit the matter to the Federal Circuit Court for reconsideration according to law. To understand why I propose to do this, a little background is necessary. 2 The first applicant is a citizen of the People's Republic of China. Before the Tribunal, she was the first applicant. The second applicant was her partner, a male Chinese born in Fuqing province in China in 1989. The third applicant before the Tribunal was the child of the first and second applicants born in Australia in 2011. Before the Tribunal, the first applicant was the primary applicant. Her Protection Visa was sought on the basis of her Catholicism, that is, as a member of the Roman Catholic Church, and her fear of return by reason of religion. 3 I do not propose to go through the claims in detail. The Tribunal's decision was of some 34 pages and 156 paragraphs. What one finds in that is a comprehensive disbelief of the first applicant for reasons that are there set out. That comprehensive disbelief arose notwithstanding a body of evidence that had been put forward, including from people in Australia from the churches at which the first applicant had been worshipping. The challenge to the decision, and the judgment of the learned primary judge, focused in large part on a claim of apprehended bias. 4 That apprehended bias was not based upon demeanour or conduct or any inappropriate statement by the Tribunal, but was one constructed, if I may use that expression, in argument from the way the Tribunal had reasoned and, in broad terms, the evident unfairness and incorrectness of some aspects of the reasoning. Perhaps the source of that way of looking at the matter was the decision of the Full Court in NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 some years before where the Court found that the treatment of the evidence by the Tribunal had been so questionable as to raise in the mind of anyone who had understood what had happened the possibility that the Tribunal, in that case, did not bring an open mind to bear on the issue. That, of course, is an extremely high bar to reach. 5 It was reached in NADH. The learned primary judge here found that it was not. The difficulty (which can be explained in the manner that I will identify in a moment) with the primary judge's reasons, with the utmost respect to the primary judge, is that he began in his discussion of ground 1, which was not the apprehended bias point, by discussing jurisdictional error. Ground 1 had been ill-expressed but he took it as a broad assertion that there was jurisdictional error. He then addressed in his reasons why it could not be said that there was jurisdictional error. The most important paragraphs are [13] and [14] but I will set out the whole of [13] to [20], which were as follows: Ground 1 13. Ground 1 is curiously expressed. It is an assertion that the Tribunal Decision "was not a proper decision … pursuant to section 5E". The reference to "section 5E" is, presumably, a reference to s.5E of the Migration Act 1958. The matter was argued on that basis. As such the ground makes no sense. Section 5E of the Migration Act is no more than a definitional section defining the meaning of "purported privative clause decision". As a definitional section, s.5E of the Migration Act 1958 alone does not assist the Applicants to establish what they are required to establish in order to obtain relief, namely, that the Tribunal Decision is affected by jurisdictional error. The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal: a) identifies a wrong issue; b) asks the wrong question; c) ignores relevant material; or d) relies on irrelevant material, in such a way that the Tribunal's exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ ("Yusuf"). 14. The Court has no jurisdiction to engage in merits review. Fact finding is within the jurisdiction of the Tribunal, and as such, is not reviewable if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ ("NADR"); Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ ("Wu Shan Liang"). The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ ("Tran"). 15. The Applicants asserted that the Tribunal Decision was not a "proper" decision. 16. The Tribunal's approach to the decision-making task was entirely orthodox. The Tribunal identified issues to be determined, set out or referred to the evidence and submissions of the Applicants in relation to those issues, as well as other information (including independent country information available to it) and drew available conclusions from the evidence and submissions set out. In that regard, it cannot be said that the Tribunal approached its decision-making task improperly. 17. It is evident, reading the Tribunal Decision as a whole, and with an appreciation of the full context of what the Tribunal said, and without intricate over-analysis: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [35] per Gummow ACJ and Kiefel J and footnote 73 per Heydon J, that the Tribunal dealt with the Applicants claims. It arrived at factual findings which were open to it on the evidence and materials that were before the Tribunal. In the circumstances it cannot be said that the Tribunal Decision was not a "proper" decision. 18. To the extent to which it might be said that there was a failure to exercise or an excess of jurisdiction these are not matters which are particularised in ground 1, either as originally filed or as amended in the Applicants Submissions. The failure to particularise a ground of review is itself sufficient to warrant dismissal of that ground: SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM. 19. The sole particular refers to s.5E of the Migration Act, but no more, and for reasons otherwise set out above does not establish jurisdictional error. 20. It follows from the foregoing reasons that ground 1 is not made out. 6 As can be seen from [13], the primary judge viewed jurisdictional error as confined by those four matters. Secondly, [14] misdirects the question as to review of facts. It goes without saying that the Court does not engage in merits review; that is, re-find the facts for the purposes of re-finding the facts. But to say that fact finding is within the jurisdiction of a Tribunal and is not reviewable if the findings of fact were open is to either misunderstand fundamentally how jurisdictional error can work or to define it in a formula which is too narrow. 7 The last submissions in this matter before the learned primary judge were filed in December 2013. In May 2013, the High Court handed down their decision in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. Importantly, it was a matter relating to the exercise of a discretion. The Court in Li did not expressly say that what they were doing was a break or change in the law but, if I may respectfully say so, the decision drew together strands of reasoning in a clear and comprehensive way which helped with the recognition that jurisdictional error was not a formula and was not able to be exhaustively expressed in a crisp rule. This matter was illuminated with some clarity by Robertson J in the matter earlier that year of Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 in which his Honour carefully examined the reasoning processes of the Tribunal in its disbelief of an applicant and found that, effectively, the analytical and weighing process regarding that evidence that was before the Tribunal was so flawed as not to be a proper and adequate exercise of the power submitted to the Tribunal. A later application for special leave that challenged SZRKT was rejected on the basis that Robertson J's approach was nothing novel: [2013] HCATrans 251. What Robertson J did in SZRKT, as his Honour made plain, was indicate that the close analysis of the factual evaluation and approach by the Tribunal is not merits review; it is part of the process of ensuring or assessing whether serious findings made about applicants have been made lawfully. 8 Since 2013 there have been a number of cases in the Full Court of this Court which have sought to elucidate the notion of legal unreasonableness in this field of inquiry. In that respect, I refer to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109. It is unnecessary to set out parts of those judgments in extenso but I refer in particular to the passage in Stretton 237 FCR at 5-6 [9]-[12] that is set out extensively in the standard text on administrative action of Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) at 373-374: 9 The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power - a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual - will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source. 10 This concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of Li in the judgment of Hayne, Kiefel and Bell JJ contained two (different) "tests": (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality's discussion of unreasonableness at [63]-[76] in Li should be read as a whole - as a discussion of the sources and lineage of the concept: [64]-[65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68]-[71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76]. 11 The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power. 12 Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised. 9 Jurisdictional error is not to be narrowly confined as the learned primary judge did in [13], nor is factual analysis for the purposes of legal unreasonableness to be, if I may use the expressed without disrespect, brushed aside by the kind of expressions in the beginning of [14]. There may be serious issues in this case about the quality of the fact finding and as to whether it reflects a proper exercise of a power of review. I do not conclude that, but that question has not been analysed and it is not analysed by examining the matter through the prism of apprehended bias. 10 Thus, in my view, there is not only a reasonable, but a good, basis for appeal from the orders of the Circuit Court. If I were of the view that I could see no possible ground for concern as to the Tribunal's decision, it would be difficult for me to extend time because of the length of time that passed: two years. However, without concluding that the Tribunal's decision was flawed relevantly, I am not convinced that it is free from error. It is still necessary, however, to consider the length of time and the explanation for the delay. The first applicant in her affidavit frankly concedes that after the rejection of her judicial review application by the Circuit Court she sought legal advice and she said her lawyer at the time "strongly suggested for me not to appeal as he believed that it was very unlikely to succeed." 11 With the benefit of the elucidation of the principles in Li in this court, that advice may be seen perhaps to have been overly conservative. I do not, for one moment, criticise the lawyer. If there were no other considerations then, even though I disagree with the advice with the benefit of the passage of time, I would not grant an extension of time. There has to be finality to litigation and it may be that the lawyer is ultimately correct that any judicial review would not be successful. But my lack of agreement with him about the appeal would not be a ground to extend time if it were not for other matters in the case. 12 In [4] and [5] of her affidavit, the first applicant sets out some important personal considerations which I think should bear on the matter. After the first applicant's judicial review application was dismissed, her second child's application for protection was accepted. That may mean that the first applicant will be forced to leave Australia leaving her second son here or deny her second son the benefit of the protection that Australia can give him. In [5] the applicant says, and there was no cross-examination on this (perfectly appropriately), that she is: … at the end of my ropes and I am on the verge of returning to China. My family is split as only my youngest son holds a protection visa and I cannot imagine being away from him in such a crucial time of his life. 13 Those particular personal circumstances, and my inability to persuade myself in reading the Tribunal's decision of its freedom from error, lead me to conclude that in all the circumstances it would be unjust not to extend time. I considered for a while dealing with the issue of legal unreasonableness on appeal even though it was not dealt with below. I do not think that is the appropriate course. I came to that view because it may be that, in the light of Singh, Stretton, Eden, ARG15 and Li and an analysis of the Tribunal's reasons, there is further evidence that might be led. I am not suggesting there is but I think the matter is of sufficient importance to the first applicant and her family to require a first instance hearing before a judge rather than be dealing with this on appeal. 14 Ordinarily, an extension of time, if granted, would see the appeal take place on another occasion. I raised the matter with counsel for the Minister. For the reasons that were evident on the transcript and in discussion, and in these reasons, I am of the view that the Federal Circuit Court mischaracterised its task. As I have said, I do not consider that the Tribunal decision is wrong, and I do not propose to address the validity of the Tribunal's decision. The orders that I would make would not only be, therefore, extending time to rely upon the notice of appeal, but also allowing the appeal, setting aside order 2 of the orders of the Circuit Court, and remitting the matter to the Circuit Court for the hearing. 15 I would also, to the extent that these reasons permit me, make it clear that in my view attempts should be made by the Circuit Court to engage the assistance of the Bar, or the profession generally, for pro bono or amicus curiae assistance for any application for review in this case. 16 For these reasons, the orders that I make are:

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