Tension between “appellate function” & “legislative scheme”

Federal Court: Self-represented Appellant applied to FCCA, making  "reference to recognisable grounds" of judicial review, but without clearly identifying any jurisdictional errors. FCCA "generally concluded that there had been a repeated failure to 'identify any jurisdictional error'". Was FCCA's conclusion "an attempt to give content to an argument that may have some merit once properly understood"? Notice of appeal was "unhelpful". If FCA holds that FCCA provided inadequate or incomplete reasons, should it remit the matter to FCCA, differently constituted, or should it determine for itself the task of resolving the grounds of review that were before the FCCA?

The Federal Court (FCA) summarised the procedural aspects of this matter as follows:

12    Before the Circuit Court the Application, as filed in that Court, set forth some 27 purported “Grounds”.None of those purported Grounds, however, clearly identified any identifiable legal error or jurisdictional error. In summary form, these Grounds asserted that the Tribunal erred by reason of (inter alia):

    • “jurisdictional error” – albeit with no further identification as to the error sought to be relied upon;
    • “error of law which causes it to identify a wrong issue, to ask itself a wrong question…” – albeit with no identification of the error of law or the “wrong question”;
    • “Wednesbury unreasonableness, described by Lord Diplock…”;
    • a failure “to take into consideration the evidence put forward by the applicant by way of interview…” and a “refus[al] to accept the evidence of the applicant”;
    • a failure to make a “fresh [decision] as well as independently”;
    • “personal bias” or “misconception and bias”; and
    • the “whole judgment” being based upon “conjecture”.

The fundamental difficulty with these purported Grounds was that they made reference to recognisable grounds upon which judicial review may be sought – but they failed to carry through those potential arguments to the facts and reasoning of the Tribunal. A “little knowledge” on the part of the now-Appellants has proved to be “a dangerous thing”.

13    The Circuit Court Judge, perhaps somewhat peremptorily, considered each of the 27 Groundsindividually and generally concluded that there had been a repeated failure to “identify any jurisdictional error”. Some of the Grounds, it may be accepted, could be more summarily dismissed than others. A Ground, for example, which simply asserted that the Tribunal “has made jurisdictional error” without identifying the error sought to be relied upon may be more summarily dealt with than a Ground which asserted a failure to take “into consideration the activities of the Taliban…”. And such reasons as were given by the Circuit Court Judge for rejecting the latter argument do not seem, with respect, to be directed to the argument sought to be advanced. Other Grounds may have been poorly expressed, such as a Ground which asserted “many doubts on the findings of the RRT”.

Some of the questions to the FCA were as follows:

Question 1: Was the FCCA's conclusion that there had been a repeated failure to identify any jurisdictional error "an attempt to give content to an argument that may have some merit once properly understood"?

Question 2: Can it be said that, "as a general proposition, the more universal the rejection [by an admin decision-maker] of claims made, and the more extensive the adverse findings made as to credit, the greater may be the need for judicial scrutiny"?

Question 3: If the FCA holds that the FCCA provided inadequate or incomplete reasons, should it remit the matter to the FCCA, differently constituted, for reconsideration or should it determine for itself the task of resolving the grounds of review that were before the FCCA?

The FCA answered those questions as follows:

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