Ground 2
26 As to the second ground, there is an initial question of what is intended to be encompassed by the ground: that is, whether it is only concerned with whether any reasons at all were given at the time the Federal Circuit Court's orders were made, or whether it extended to an allegation that the reasons given by the Federal Circuit Court were inadequate. The Minister submitted it was only the former and not the latter.
27 I accept that submission. Nevertheless, even if the focus of this ground is accepted to be the Federal Circuit Court's failure to provide written reasons at or shortly after the pronouncement of its orders, rather than the adequacy of the reasons given, it is as well to recall some of the more general principles about the giving of reasons.
28 I explained the importance of the giving of reasons as an aspect of an exercise of judicial power in AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951 at [33]-[41]. In Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 at [163]-[193], the Full Court explained the purpose of the giving of reasons and the state of authority about when reasons given for the exercise of judicial power will, and will not, be considered adequate to constitute a lawful discharge of the judicial function.
29 In the present case, there is no dispute that oral reasons were given at the time of the orders being pronounced. There is no factual basis to infer that the oral reasons were not translated to the appellant at that time. Here, the appellant had no active recollection of the Federal Circuit Court hearing and made no positive assertion that the reasons had not been interpreted to him: cf AAM17.
30 The ground of appeal revolves around the failure to provide any written reasons until 1 August 2019. There is no evidence, one way or the other, about whether the appellant was informed that he could access a copy of the transcript of the oral reasons. As I noted in AAM17, it is important for persons in the position of the appellant, whose liberty might well ultimately be at stake as a result of an adverse decision by the reviewing court, that the court's reasons for decisions are intelligible to them. Subject to presently irrelevant exceptions, it is also a core characteristic of the exercise of judicial power that it occurs in public. The publication of a court's reasons for decision is an aspect of this characteristic.
31 I infer, and find, that the publication of the Federal Circuit Court's reasons for decision on 1 August 2019 was entirely responsive to the filing of a notice of appeal. There does not appear to be any court rule or practice authorising, as a matter of policy, judges of the Federal Circuit Court to refrain from providing any form of written reasons to the parties affected by the court's orders. Nor does there appear to be any court rule or practice authorising, as a matter of policy, judges of the Federal Circuit Court to publish written reasons only as a response to a notice of appeal. There may be a number of difficulties with that practice, including that it may be perceived as a way of insulating the Federal Circuit Court's decision from any successful appeal.
32 This is not to criticise or discourage the giving of oral reasons at the time of making orders. Subject to the kinds of qualifications noted by Flick J in BKL15 v Minister for Immigration and Border Protection [2016] FCA 802; 241 FCR 450 at [16], it is a practice which is capable of facilitating the effective and efficient use of judicial resources, without comprising the fairness and accountability which is also a feature of the exercise of judicial power. However, when a judge gives oral reasons, the appropriate and reasonable expectation of the parties is that the court will give the parties a copy of the reasons in written form as soon as reasonably practicable, and that this will occur whether or not a party is contemplating an appeal.
33 As I have explained in AAM17, and as was explained in Kaur and the authorities there cited, the purpose of giving reasons is not limited to the facilitation of the exercise of a right of appeal, although that may be one purpose in applicable circumstances, and indeed the adequacy of reasons as giving rise to appellable error may be closely tied to the existence of a right of appeal from a court's orders and reasons: see, for example, DAO16 at [47]-[48]; COZ16 v Minister for Immigration and Border Protection [2018] FCA 46; 259 FCR 1 at [31]-[56].
34 Litigants in the migration jurisdiction are entitled to expect, and be given, the same quality of judicial processes as other litigants, including wealthy and amply legally resourced litigants. This is no second-class jurisdiction, particularly given what is at stake for applicants. It is difficult to conceive of a judge, by way of final orders, disposing of a commercial dispute between legally represented litigants involving a considerable sum of money by giving oral reasons which were not then published either to the parties or the public, or only published responsively after the lodging of a notice of appeal. No different approach should be applied in jurisdictions such as migration.
35 There is, of course, a distinction in any event between any revision and publication of oral reasons that occurs within days of the giving of oral reasons, and a revision which is only responsive to the filing of an appeal against the orders which the oral reasons support. The former practice is unlikely to be attended by any reasonable apprehension that the written reasons have been published in the form and at the time they have in an attempt to insulate the court's decision from any successful appeal. Nor could there be any reasonable apprehension the appellate court might be misled as to the reasons of the court from which the appeal lies for making the orders it did.
36 So far as I have been able to ascertain, to this point there has been no developed legal challenge to the giving of written reasons responsively to the filing of an appeal, and otherwise non-publication of written reasons to the parties at all (even by way of a revised transcript of oral reasons). There are appellate decisions of this Court which describe the practice as "undesirable" and refer to the ability of a party to seek an order under rule 36.03(b) of the Federal Court Rules deferring the commencement of the date from which the time for appeal commences to run because of the absence of written reasons. Unless it is suggested and explained to them, the latter option is of little assistance to unrepresented asylum seekers, especially those with no functional English.
37 Relying on ELR18 v Minister for Home Affairs [2019] FCA 1583 at [45], the Minister contended that the fact that no written reasons had been published at the time the appeal was instituted is, alone, not a ground upon which a finding of appellable error could be made. In that decision, Snaden J said (at [45]):
At the time that the appeal was instituted, no written reasons had been published in support of the FCCA Judgment. The only reasons given, to that point, were the oral reasons provided on the day of the judgment - which, as is outlined above, the appellants could not fairly be thought to have understood. That, alone, is not a ground upon which this court might impugn the decision below as the product of appellable error, although it is a matter in respect of which some stern commentary has recently arisen: CQX18, [11] (Allsop CJ, Perry and Gleeson JJ).
38 CQX18 v Minister for Home Affairs [2019] FCAFC 142; 372 ALR 137 concerned an appeal where, the Full Court having obtained the transcript of the hearing before the Federal Circuit Court and having raised concerns about the process adopted by that court during the judicial review hearing, the Minister conceded that the court's decision should be set aside for denial of procedural fairness. Although the orders were therefore made by consent, in accordance with Bradken Ltd v Norcast S.ár.L [2013] FCAFC 123; 219 FCR 101, the Full Court identified the error which led it to be satisfied that the setting aside of the Federal Circuit Court's orders was appropriate. The Full Court said (at [10]-[12]):
We are satisfied that it is appropriate (subject to appropriate changes) for the proposed consent orders in the second appeal to be made on the basis that the FCC judge failed to afford the appellant procedural fairness at the hearing in the exercise of Commonwealth judicial power in all of the circumstances. These circumstances include the following.
(1) The appellant did not have legal representation in the Federal Circuit Court.
(2) He appeared at the hearing of the application for judicial review via video-link from immigration detention without an interpreter present. The interpreter was located in the courtroom in Sydney.
(3) The transcript of the hearing before the primary judge demonstrates difficulties with the video-link transmission of the hearing.
(4) The appellant raised the question of unfairness at the hearing as he had to make his submissions "all on my own" (ie from a remote location).
(5) There was real doubt as to whether the appellant received the Minister's written submissions or the court book. While the Minister's counsel offered to assist the Court about service of the court book on the appellant, the primary judge considered it sufficient to have explained the contents of the court book to the appellant before admitting it into evidence. As such, no steps were taken to clarify one way or the other whether these had been served.
(6) The appellant explained to the primary judge in any event that he could not read the Minister's submissions without the assistance of a translator. The Minister's counsel acknowledged in his submissions before the primary judge that it was not evident that his written submissions had been translated and that "it may be that the applicant, given the need for interpreting, may not have had the opportunity to consider those submissions fully."
(7) The appellant explained that there were inaccuracies in the translation of his affidavit which he wanted to correct and he sought a short adjournment of half an hour to an hour to do so with the assistance of the interpreter. However, his application for an adjournment was not dealt with by the primary judge and his affidavit was taken as read without the appellant being afforded the opportunity to correct it by evidence.
We also wish to express our concern that:
(1) the primary judge delivered an ex tempore judgment which was not translated by reason of an instruction by the primary judge to the interpreter not to do so in circumstances where there was no apparent effort thereafter by the primary judge to have his reasons reduced to writing timeously until they were requested;
(2) no orders were made having the legal or practical effect of deferring the commencement of the period within which an appeal must be instituted (see CQX18 v Minister for Home Affairs [2019] FCA 386 at [14] (Perram J); Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26] (the Court)); and
(3) written reasons were not published until 75 days after delivery of the ex tempore judgment and 54 days after the expiry of the time within which an appeal could be instituted as of right.
We also note in this regard that Perram J found at [7] that the applicant does not speak good English and that "I do not hesitate to find as a fact for the purposes of the present proceeding that the Applicant would not have been able either to understand what [the primary judge] was saying or to have been able to reduce what he was saying to writing." His Honour's findings in this regard are amply borne out by a reading of the transcript of proceedings before the FCC which was before this Court.
39 In ELR18, Snaden J does not cite any authority for the proposition his Honour sets out at [45] of that decision. In my respectful opinion that matter remains an open question, and the authorities to which I referred in AAM17, and to which the Full Court has referred in DAO16, CQX18 and Kaur, will be relevant. The combination of circumstances - oral reasons with no provision of even the transcript of those reasons, an unrepresented asylum seeker with limited ability to communicate in or understand English, the consequences of an adverse decision, a limited appeal period, the well-established principles about the need for adequate reasons so as to facilitate the exercise of a right of appeal, the defining characteristics of judicial power under the Constitution, and the principles of procedural fairness - may well support a conclusion such as the one reached - on different facts - in CQX18. To that list may be added the matters to which I referred above about the apprehension that provision of written reasons responsively to a notice of appeal may be designed to insulate a court from a successful appeal, and further that differences between the oral reasons and the written reasons provided after an appeal has been filed might also give rise to confusion about the actual reasons for the making of the Court's orders.
40 The potential significance of these matters is not necessarily diminished by the contention that, so long as an appellant receives written reasons from the court a reasonable time before the hearing of the appeal, there is no legal difficulty with that practice: cf ELR18 at [46]-[48]. Recalling what I have said at [35] above, if that practice were extended to all first instance proceedings, it takes little imagination to see how quickly the practice would be scrutinised for legality. There are more fundamental issues of principle at stake in this practice than the question of whether there is a sufficient time gap between late-produced reasons and the hearing of any appeal.
41 However, the appellant was in no position to make any arguments on these matters on this appeal. The resolution of these matters should await an occasion where all arguments can be fully developed.
42 Ground 2 should be resolved on this appeal on the basis that, while it is correct that the Federal Circuit Court did not provide written reasons at or shortly after the pronouncement of its orders, no substantive argument has been advanced as to why that failure constitutes an appellable error, and for that reason ground 2 should be dismissed. In those circumstances, it is not necessary to address in detail the matters raised in the Minister's supplementary submissions, other than to note that the Full Court's decision in CQX18 is not inconsistent with the observations made by Perram J.