Australian Immigration Daily News

How do you know if the Federal Circuit Court has properly considered your case?

This is an extremely important question for visa applicants who have sought to challenge of the Administrative Appeals Tribunal which have affirmed the refusal of their visa applications.

It is surely true that the vast majority of visa applicants who take their cases to the Federal Circuit Court are not represented by lawyers – either due to lack of money to pay a lawyer, or apprehension that it will be extremely expensive to have a lawyer appear for them (in reality, the costs of getting legal representation in a migration matter are likely significantly less than for other types of litigation in Australia, as migration cases are generally dealt with in a “half-day hearing” ).

For an applicant who attempts to navigate proceedings before the Federal Circuit Court on her/his own, without the assistance of a lawyer, the process must seem extremely confusing and intimidating: it may not be at all clear what is needed in order to persuade the Court that the Administrative Tribunal has committed “jurisdictional error”, or even what jurisdictional error is.  And the Minister has limitless resources to litigate matters before the Federal Courts, and is always represented by a lawyer, at least by a solicitor and very often by a barrister as well.

So it is not all that surprising, when one reads the case reports on Austlii, to see that the vast majority of visa applicants who appear on their own in the Federal Circuit Court are unsuccessful, and have their applications for judicial review dismissed.

Also, many judicial review applications are decided on the same day as the final hearing, with the presiding judge giving her/his reasons orally from the bench, in what is known as an “ex tempore” judgment – instead of “reserving” a decision on the case, and then issuing written reasons for the decision some days or weeks after the hearing.

Although on a certain level one might understand why the Federal Circuit Court perceives a need to dispose of cases quickly – after all, the FCC is literally overloaded with thousands of judicial review applications in migration cases – the practice of giving judgments immediately after the hearing has concluded has the potential to leave applicants with the impression that their cases have been decided without full and fair consideration of their cases.

So: how is it possible to know whether the reasons given for an adverse decision by the FCC , either orally in an ex tempore judgment, or in a written judgment, are inadequate – and that the decision of the FCC is therefore itself vulnerable to challenge in the Federal Court?

A recent decision by Justice Flick of the Federal Court, in the case of CPF15 v Minister for Immigration and Border Protection (2018) FCA 330 (16 March 2018) provides guidance.

CPF15 was a case that involved an application for review of a decision by the AAT that affirmed the refusal of applications for protection visas.

The judicial review application was heard in the first instance by Judge Street of the Federal Circuit Court, who dismissed the application. 

Judge Street’s written reasons in the case were quite brief.

For example, Judge Street dealt with one of the grounds of the application as follows:

“…the Tribunal correctly identified the relevant law, and on the face of the Tribunal’s reasons, correctly applied the relevant law in determining whether the applicant met the criteria under the Refugees Convention and/or whether the applicants met the criteria in relation to complementary protection. On the face of the material before the Court the Tribunal complied with its statutory obligation s in the conduct of the review and complied with its obligations of procedural fairness in the conduct of the review. There was no conflation of the relevant tests by the Tribunal. No jurisdictional error…is made out”.

Justice Flick of the Federal Court held that these reasons given by Judge Street were inadequate for the following reasons:

• The statement that “the Tribunal correctly identified the relevant law…and correctly applied the relevant law” was viewed by Justice Flick as “more a conclusion than any analysis of the argument advanced”
• There was no analysis of “the manner in which the Appellants sought to bring themselves within the reach of what constitutes a “refugee” and why the rejection of that claim by the Tribunal was open to it”.

In summary Justice Flick held  that the reasons given by the Federal Circuit Court must at least:

• Expressly address the arguments advanced;
• Expressly address the parts of the Tribunal’s reasons and findings of fact which go to the arguments advanced by the applicant;
• Explain why those reasons and facts are relevant to the arguments relied upon.

In very blunt or “pithy” terms, Justice Flick observed that where the reasons given by the Federal Circuit Court do not refer to these matters, it is tantamount to “no greater reasoning process than a statement to a claimant that “You lose. Your arguments are rejected”.

So what is to be taken away from Justice Flick’s decision in this case is that where the reasons given by the FCC fail to engage with the submissions that have been made by the applicant, and dispose of those submissions in a very abbreviated and summary form, without careful analysis, there is a likelihood that the FCC has itself committed error in its review of the Tribunal’s decision.

Of course, every decision of the FCC will have to be reviewed on its own merits.

But I suspect that there may be other cases where  there has been a similar failure to give adequate reasons for a decision.

And in those cases, however many there might be, there might be a substantial prospect of getting a decision of the FCC overturned on appeal to the Federal Court.

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