SZTSC v Minister for Immigration and Border Protection

1. The applicant/appellant is given leave to rely upon the amended notice of appeal filed on 10 August 2016 raising additional Grounds 2, 3 and 4.
2. The orders of the Federal Circuit Court of Australia made on 17 March 2016 dismissing the applicant/appellant's application to that Court and ordering the applicant/appellant to pay the costs of the first respondent fixed in an amount of $6,646.00 are set aside and in their place the constitutional writs of mandamus and certiorari issue quashing the decision of the Refugee Review Tribunal of 5 December 2013 and directing the questions in issue before that Tribunal (now the Administrative Appeals Tribunal) to be determined before the Administrative Appeals Tribunal according to law.
3. The first respondent pay the appellant's costs of and incidental to the appeal and the appellant's costs of the proceeding before the Federal Circuit Court of Australia. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GREENWOOD J: 1 These proceedings are concerned with an appeal from a decision of the Federal Circuit Court of Australia (the "Federal Circuit Court") by which that Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the "Tribunal") made on 5 December 2013: SZTSC v Minister for Immigration & Anor [2016] FCCA 543. By the time of the Federal Circuit Court decision on 17 March 2016, statutory changes had come to pass by which the functions of the Refugee Review Tribunal had become those of the Administrative Appeals Tribunal. 2 The Tribunal on 5 December 2013 affirmed a decision of the delegate of the Minister for Immigration and Border Protection not to grant the applicant a Protection (Class XA) visa under the provisions of the Migration Act 1958 (Cth) (the "Act"). 3 The question before the Federal Circuit Court was whether the applicant had made good his contention that the Tribunal had fallen into jurisdictional error in reaching or purporting to reach that decision in the exercise of the review jurisdiction conferred upon the Tribunal under s 414 of the Act. For that purpose, the Tribunal in reviewing an "RRT-reviewable decision" was entitled under the Act to exercise all the powers and discretions conferred by the Act upon the Minister (decision-maker): s 415 of the Act. 4 Because the Tribunal's decision was made on 5 December 2013, the question of whether the Tribunal fell into jurisdictional error was a question to be determined by the Federal Circuit Court having regard to the statutory framework governing the exercise of the statutory review function at the date of the Tribunal's decision (subject to any statutory changes purporting to operate otherwise). 5 These proceedings also engage another question which is whether the applicant appellant ought to be given leave to rely upon three grounds of appeal raising questions which were not raised before the Federal Circuit Court. 6 The solicitors for the Minister appearing on the hearing of the appeal (Ms Blake of Clayton Utz), contend that leave to rely upon the new grounds ought to be refused on the footing that the appellant has failed to demonstrate that the proposed new grounds have "clear merit". The solicitors for the Minister do not assert that the Minister will suffer any prejudice should leave be granted. Rather, the contention is confined to the proposition that not only has the applicant appellant failed to demonstrate the "clear merit" of the new grounds, but that the proposed new grounds are of "doubtful merit". These terms "clear merit" and "doubtful merit" as used by Mr Chami (of Clayton Utz) in the written submissions are drawn from the observations of the Full Court in Vaux v Minister for Immigration (2004) 238 FCR 588 ("Vaux"). 7 In Vaux at [46]-[48], the Full Court (Kiefel, Weinberg and Stone JJ), said this in the context of the principles governing applications for leave to amend to raise new grounds of appeal (with particular reference to "migration matters"): 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: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]. 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. 8 A number of contextual things should be noted about "migration matters" and the application of the principles governing leave to rely upon grounds of appeal going to matters not raised before the primary court. 9 First, it is not clear whether the use of the emphatic term "clearly" in [48] or the use of the terms "clear merit" and "doubtful merit" is used for rhetorical effect or is intended to convey the notion that there are "degrees of merit" that might be apparent upon analysis of the material with the result that the qualitative bar an applicant appellant needs to hurdle is one of showing that the proposed new grounds have "clear" or "manifest" or "plain" merit. The use of such phrases might be intended to convey the idea that it is not good enough or sufficient (which it is not) to simply demonstrate that the proposed grounds are "arguable". Merit is an absolute term. The proposed new grounds are either shown to "have merit" or not. It is not clear what might be added to the analysis by casting the burden as one of showing "clear" merit or some other emphatic description of the absolute. Nevertheless, it has become accepted to describe the test to be applied as one of showing "clear merit" and I therefore adopt that taxonomic reference. 10 The use of emphatic terms such as "clear" to describe the degree of merit to be shown on an application for leave might also be intended to convey the idea that, at the threshold of the application, the merits of the grounds must be so pronounced or so clear, so manifest or so plain that there can be no real doubt, at all, that the interests of justice require an opportunity to be afforded to an applicant appellant to rely upon the new grounds. In other words, the question of whether leave ought to be granted or refused ought not to engage a great deal of analysis as it ought to be plain and clear almost from the very outset. However, in order to properly consider and determine whether leave ought to be granted or refused it is necessary to examine the merits of the contended ground in order to be satisfied just exactly how the interests of justice, in a particular case, are to be served. The granting or refusal of leave would ordinarily follow that consideration. 11 It seems to me that the approach is to ask and examine whether the contended grounds "have merit" (that is, clear merit). If so an "explanation" for the failure to raise those grounds before the primary court needs to be put before the Full Court. In the context of those two things, the Full Court needs to consider whether any "prejudice" is suffered by the respondent by the grant of leave. These three considerations need to be weighed in the balance according to the circumstances of each individual case. 12 Second, the tests described at [7] have emerged, not surprisingly, in the context of inter-parties adversarial litigation and whilst, of course, the proceedings before the Federal Circuit Court involve adversarial proceedings as between an applicant and the Minister (with the Tribunal a necessary second respondent), it should be remembered that those proceedings are, first, concerned with questions of jurisdictional error in the context of a person's application to a very particular kind of Tribunal conducting a review function which is not itself adversarial and, second, the jurisdiction sought to be invoked is, if properly invoked, a jurisdiction which "secures a basic element of the rule of law": Plaintiff S 157 v Commonwealth (2003) 211 CLR 476 at [5], Gleeson CJ. 13 Third, the questions in issue before the Federal Circuit Court ultimately go to whether the Tribunal's statutory review function under the Act has miscarried in a jurisdictional sense. If so, the grant of the constitutional writs (and the grounds upon which the writs might go) is the mechanism by which an applicant seeks to secure a review before the Tribunal, according to law. The opportunity and entitlement of an applicant to have a review of the decision of the Minister's delegate, according to law, is a step by which an applicant seeks to make good a right to the grant of a protection visa on the footing that the Tribunal ought to be able to reach the statutory state of satisfaction, according to the criteria, contemplated by s 36(2) of the Act, and in particular, relevantly, s 36(2)(a) or s 36(2)(aa) (or both), on the merits, on the basis of all the material put before the Tribunal. Section 36(2)(a) of the Act is, of course, concerned with whether the Minister (and in the context of a review before the Tribunal whether the Tribunal exercising powers conferred upon the Minister) is satisfied (as a pre-condition to the obligation to grant a protection visa under s 65 of the Act) that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (each of which is more fully described at [14]). Section 36(2)(aa) is concerned with whether the Minister is satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer "significant harm" as that term is understood for the purposes of s 36 of the Act. 14 Fourth, the question before the Tribunal, in the exercise of its review function, as to whether it can reach the relevant state of statutory satisfaction goes to whether an applicant can make good, on all the material before the Tribunal, a claim to a protection visa in the context of the adoption into the domestic law of Australia (according to the relevant statutory integers) of relevant aspects of the Convention relating to the Status of Refugees made at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees made at New York on 31 January 1967 to which, in both cases, Australia is a signatory. 15 Fifth, in migration cases it is often the position that the applicant suffers from two particular difficulties. 16 First, the applicant often has no real facility in the use of the English language which is the language of the Tribunal, the Federal Circuit Court and all other Courts in Australia. Thus the services of an interpreter are very often required in order to assist an applicant before the Tribunal and the Federal Circuit Court and then before this Court. Often the language of the applicant will be the language of a particular region within a country requiring an understanding on the part of the interpreter of a particular dialect. 17 Second, an applicant often finds it difficult to obtain timely legal advice or legal advice at all. A number of lawyers, very commendably, provide their support to applicants (on a range of bases), seeking to assert rights according to law in this area of Australia's jurisprudence. Sometimes, however, it can be difficult for applicants, even with some limited legal assistance, to frame coherently a ground of challenge at first instance to a decision of the Tribunal or to comply with the timeframes for taking particular steps. 18 Notwithstanding these considerations it is nevertheless necessary for applicants seeking leave to rely upon new grounds of appeal to explain the reasons for not having raised the questions sought to be agitated on appeal, in the proceedings at the outset before the Federal Circuit Court: MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101], per Jessup J. 19 I now propose to examine whether the proposed new grounds have clear merit and whether the failure to raise the questions now sought to be agitated is properly explained. As mentioned earlier, the solicitors for the Minister do not assert any prejudice in granting leave to rely upon the new grounds. Having regard to the grounds now sought to be agitated, it is necessary to examine the way the claims were framed before the Tribunal, the findings of the Tribunal and the treatment of particular matters by the Tribunal. Before doing that, a number of matters should be mentioned to identify the context within which the questions arise. 20 On 7 April 2016 the appellant filed a notice of appeal from the decision of the Federal Circuit Court. The only ground relied upon by the appellant was this: The Court fell into jurisdictional error in not considering an integer of the Applicant/Appellant's claim in respect [of] being an amputee. 21 On 10 August 2016 the appellant filed an amended notice of appeal in which the appellant continues to rely upon the ground previously raised but also seeks to rely upon these additional grounds. 22 First, (Ground 2), the Federal Circuit Court fell into jurisdictional error in not setting aside the decision of the Tribunal as having been made beyond jurisdiction in circumstances where the standard of interpreting provided at the Tribunal hearing was inadequate such that: (a) the appellant was effectively prevented from giving evidence and presenting arguments in relation to certain issues arising in relation to the decision under review, (b) the appellant was unable to be accorded procedural fairness on aspects of his claim ultimately determined adversely to him, and (c) errors were made that were material to conclusions reached adverse to the appellant. 23 That ground is framed in an odd way. The real point is that the Federal Circuit Court is said to have erred by failing to recognise the contended jurisdictional error on the part of the Tribunal. The Federal Circuit Court did not itself fall into jurisdictional error. I will reframe Grounds 3 and 4 to put each ground on the footing that the Federal Circuit Court erred in failing to recognise the contended jurisdictional error on the part of the Tribunal rather than, as framed, a contention that the Federal Circuit Court itself fell into jurisdictional error. 24 Second, (Ground 3), the Federal Circuit Court erred by failing to recognise jurisdictional error on the part of the Tribunal in circumstances where the Tribunal failed to properly consider "the integer of the appellant's claim that related to his status and individual circumstances as a 'Hazara Shia'". In the course of the oral hearing, counsel for the appellant sought to add these words after the quoted words "and a failed asylum seeker". Particulars of Ground 3 are given. The first particular is that, at para 68 of the Tribunal's decision, the Tribunal made a series of "clearly wrong and/or transposed factual findings" when considering the appellant's claim relating to his status as a "Hazara Shia". The incorrect transposed factual matters include these observations at para 68 of the Tribunal's reasons: When the substance of this information was put to the applicant for comment at hearing he referred to a situation in Kabul where a government minister had said that he would remove an university director of social sciences from his position because he had billeted Hazaras. 25 None of these factual matters relate to the circumstances of the appellant. 26 The Tribunal also said at para 68, of the matters recited at [24] of these reasons, this: Whilst this may be true and the country information indicates that there is still societal discrimination against Hazara Shias, this matter would seem to have no direct relevance to the 68 year old applicant and his individual circumstances. 27 The evidence shows that the applicant was born in 1982 and was not, at any relevant time, a "68 years old applicant". 28 Also at para 68, the Tribunal said this: In his comments, the applicant also referred to the situation of Hazaras in other areas of Afghanistan (such as Bamiyan) but I find these are [of] limited relevance to his situation in Kabul. That the applicant has not made any claim that he has ever previously been harmed or threatened in Kabul supports my findings. [emphasis added] 29 Again, the appellant's evidence did not include any evidence of a situation concerning Hazaras in the area of Bamiyan. 30 Further, the appellant says that the Tribunal, at para 68, fell into factual error in considering the individual circumstances of the appellant by observing that the appellant had "not made any claim that he has ever previously been harmed or threatened in Kabul". The Tribunal member observed that that factual matter "supports my findings". The Tribunal, at para 62, had recognised that the appellant had claimed that an incident had occurred in Kabul one night where there was an attack on his house (and men on the roof of his house) during which weapons were fired with four to five rounds striking the house. Further elements of that claim are set out at para 62. The appellant contends that the observation at para 68 quoted above makes it plain that the Tribunal was talking about circumstances relating to some other person. The appellant's claim about an attack upon him or an attempted attack upon him at his house was also a claim made before the delegate who had accepted that element of the claimed events. 31 Third, (Ground 4), the Federal Circuit Court erred in failing to find jurisdictional error on the part of the Tribunal "in circumstances where the Tribunal below made unreasonable, irrational and/or clearly wrong factual findings in considering the evidence of the appellant and the integer of the appellant's claim that related to his status and individual circumstances as a "Hazara Shia". Again, the appellant's counsel, Mr Lawrence, in oral submissions sought to add the following words to that ground, "and a failed asylum seeker". 32 In the course of the argument the appellant's counsel treated Grounds 3 and 4 together.