BLD15 v Minister for Immigration and Border Protection

1. By 10 February 2017 the appellant file an amended notice of appeal.
2. This matter be adjourned for directions until 9.30 am on the first Monday following the determination by the High Court of Australia of the special leave application in proceeding M12/2017 (Minister for Immigration and Border Protection v Singh), or if special leave be granted, the determination of the appeal.
3. The costs of the adjournment application be costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 On 19 December 2016, the Full Court published its judgment in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183. In that case the court unanimously dismissed the Minister's appeal from a decision of the Federal Circuit Court and held that the Refugee Review Tribunal, the functions of which are now exercised by the Administrative Appeals Tribunal, was obliged under common law principles of procedural fairness to disclose to a visa applicant the existence of a certificate issued under s 375A of the Migration Act 1958 (Cth) that the disclosure of certain documents, otherwise than to the Tribunal, would be contrary to the public interest. On 16 January 2017 the Minister filed an application in the High Court for special leave to appeal. 2 Section 375A requires the Tribunal to do all things necessary to ensure that a document or information the subject of such a certificate not be disclosed to anyone other than the Tribunal member dealing with the review. 3 In Singh, the Tribunal did not inform the visa applicant of the existence of the certificate, but invited him to comment on the gist of adverse information it covered. In the present case the Minister issued a similar certificate, this time under s 438 of the Act. It appears to be common ground that the Tribunal did not disclose to the appellant the existence of the certificate or its contents, although, in contrast to s 375A, s 438 had a discretion (having regard to any advice it received from the Secretary of the Minister's Department) to disclose to the appellant any matter contained in the document. 4 As the notice of appeal is presently cast, the judgment in Singh is irrelevant. However, the appellant proposes to amend the notice of appeal to raise a similar point and I will grant him leave to do so. The Minister does not oppose the amendment but he seeks an adjournment of the appeal until the High Court has either dismissed the special leave application in Singh or, if special leave is granted, disposed of the appeal. 5 The appellant opposes the Minister's application. He wishes to have the appeal dealt with on the basis of the law as pronounced by the Full Court. He also wishes to have the existing grounds of appeal considered by this Court. 6 The appellant's position is entirely understandable. He has been waiting quite some time to have his appeal determined. It was originally listed in the appeal sittings in May last year and for reasons beyond his control has been adjourned on three occasions already. He claims to have a good case on the appeal as presently constituted. Moreover, the Full Court decision may or may not be overturned. If the Full Court is correct and if, as he contends, his position is relevantly indistinguishable, his appeal should be successful. Indeed, it appears that his position, if anything, may be even stronger. 7 On balance, however, it seems to me to be in the interests of justice to accede to the Minister's application. 8 The appellant is not in immigration detention. This, it seems to me, is a weighty consideration in favour of granting the application. 9 Nevertheless, Mr Kline of counsel, who appears pro bono for the appellant, drew attention to a number of authorities in which adjournments have been refused because of proposed legislative changes. He contended that the present situation is analogous. One such authority is Ramsay v Aberfoyle Manufacturing Company Australia Proprietary Limited [1935] 54 CLR 230 in which Starke J observed at 253: Courts of law … can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future. 10 But the present situation is not analogous. Cases in which an adjournment is sought to enable a proposition established in a decided case to be tested on appeal have been treated differently. That is understandable. Unlike a legislative change, a decision on appeal does not usually change the law; it merely determines or clarifies its meaning. Furthermore, the uncertainty attending a foreshadowed legislative change is lacking on an appeal, especially in an appeal to the highest court in the land. As Mason P explained in Meggitt Overseas Limited v Grdovic [1998] 43 NSWLR 527 at 534, albeit obiter: The reason why a pending appeal is different from a proposal for legislative amendment is that there is a level of certainty that the point will be addressed and knowledge that, if and when it is, the decision of the court higher in the appellate chain will declare the law on the relevant topic with retrospective effect … 11 Similarly, in Thornton v Repatriation Commission [1981] 52 FLR 285 at 292, Fisher J distinguished the position where an adjournment is sought pending "clarification or settling of the law by the highest tribunal in the country". 12 Mr Kline submitted that there were uncertainties attending the outcome of the High Court proceedings in Singh. That is quite true, but there remains the certainty that the point the appellant wishes to agitate on the appeal will be addressed by the High Court. And, for that reason, it seems to me, the principles to which Mason P referred in Grdovic apply with equal force here. 13 Mr Kline also emphasised that the Court is required to determine the application, having regard to the provisions of s 37M of the Federal Court of Australia Act 1976 (Cth). Of that there can be no doubt. Section 37M(3) provides that: The civil practice and procedure provisions [of the act and rules] must be interpreted and applied, and any power conferred or duty imposed by them … must be exercised or carried out, in the way that best promotes the overarching purpose. 14 The overarching purpose, set out in s 37M(1), is to: facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. 15 Under s 37M(2) that purpose includes: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload: (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. 16 Noting (a) and (d), in particular, Mr Kline argued that, on a proper application of the principles in s 37M, the Court would refuse the adjournment. 17 I do not accept the argument. It seems to me that it would not be an efficient use of the judicial and administrative resources of the Court to proceed to hear and determine the appeal knowing that there is an appeal or an application for special leave to appeal pending in the High Court, the outcome of which could determine once and for all a point that could be decisive in this case. 18 There is nothing unjust about this course. As Ms Tipene pointed out, the object of the special leave application in Singh, is to have the law clarified. The overarching purpose will best facilitated by deferring the hearing of this appeal, to ensure that the appeal is determined according to law. 19 At present, the appellant has filed submissions addressing the two grounds of appeal that appear in the notice of appeal, neither of which is concerned with the point determined in Singh. A timetable was fixed in August 2016, under which the Minister was required to file his submissions by 11 November 2016, but those orders were vacated pending the outcome of the Full Court appeal in Singh. If the application for an adjournment were dismissed, then the Minister would have to prepare, file and serve submissions addressing the two grounds of appeal presently pleaded, and the foreshadowed additional ground. Yet if the special leave application in Singh fails, or if special leave is granted, the appeal is dismissed, and the proposed additional ground raises an issue which is indistinguishable from or "stronger than" Singh, as Mr Kline submitted, then the Minister may very well consent to the relief sought and the matter would be remitted to the Tribunal for hearing and determination according to law. Mr Kline submitted that the appellant wanted the Court to determine the other grounds of appeal. In the event that the Minister consents to the relief he is after, however, it would be entirely unnecessary for the Court to do so. 20 One matter that concerns me is that there is no certainty that the special leave application will be heard urgently. I asked Ms Tipene, who appeared on behalf of the Minister, whether expedition had been sought in Singh. She was unable to answer the question, as her firm is not instructed in that application. Mr Kline informed me that he had made inquiries of the High Court registry and was told that the special leave application would probably not be heard until April, and if it were successful, any appeal would not be heard until September. 21 That rather suggests that no application has been made for an expedited hearing. 22 This appeal is one of a substantial number of matters pending in the Court, which are, or may be affected by the fate of the Minister's application in Singh. Ms Tipene informed me that there are hundreds more pending in the Federal Circuit Court. I fully expect that the Minister will bring these matters to the attention of the High Court and seek expedition of the hearing of the special leave application and, if granted, the appeal itself. If so, the appeal in this Court might well be heard before 30 June this year. 23 As I have said, taking all relevant matters into account, the interests of justice favour granting the Minister's application. The overarching purpose of the civil practice and procedure provisions will best be facilitated by taking that course. Accordingly, I stand the matter over for directions at 9.30 am on the first Monday after the application for special leave has been dismissed, or the appeal has been determined. 24 By consent, the costs of the Minister's application will be costs in the cause. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.