CPF15 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-03-16|Before: Mr J, Flick J

Solicitor for the Appellants: G & S Law Group

Counsel for the First Respondent: Mr J Kay Hoyle

Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: FLICK J DATE OF ORDER: 16 MARCH 2018

The appeal is allowed. 2. The matter is remitted to the Federal Circuit Court for reconsideration in accordance with law. 3. The First Respondent is to pay the costs of the Appellants, such costs including the preparation of the Outline of Written Submissions filed on 1 November 2017 and 13 December 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 The Appellants in the present proceeding are a husband, wife and child. They are citizens of Nepal. 2 The husband and wife originally entered Australia in February 2008 on student visas. Their child was born in Australia in 2011. In April 2013, the husband and wife applied for Subclass 485 (Temporary Skilled) visas. But those applications were refused. An appeal to the former Migration Review Tribunal ended with the Tribunal concluding that it had no jurisdiction. 3 In December 2013, the Appellants applied for Protection (Class XA) visas. The wife was the first named applicant and the husband and child were included in the application as members of the wife's family unit. In May 2014, a delegate of the Minister for Immigration and Border Protection rejected that application. An appeal was filed with the then Refugee Review Tribunal in respect to the delegate's decision. The Tribunal, by then the Administrative Appeals Tribunal, affirmed the delegate's decision in November 2015. 4 An application was then filed in December 2015 with the Federal Circuit Court seeking review of the Tribunal's decision. That Court dismissed the application on 21 July 2017: CPF15 v Minister for Immigration and Border Protection [2017] FCCA 1703. 5 A Notice of Appeal was filed in this Court on 9 August 2017 and prior to the written reasons for decision of the Federal Circuit Court becoming available. 6 The appeal came on for hearing on 23 November 2017. Both the Appellants and the Respondent Minister were represented by Counsel. 7 At the outset of the hearing, leave was granted to rely on an Amended Notice of Appeal. The Grounds of Appeal were there stated (without alteration) as follows: 1. His Honour erred by not finding that the Tribunal made jurisdictional error by taking into account irrelevant considerations. 2. His Honour erred by not finding that the Tribunal made jurisdictional error by relying on an incorrect interpretation and application of the relevant law. 3. His Honour erred by not finding that the Tribunal made jurisdictional error by failing to consider relevant considerations while assessing whether the Applicant's meet the Complementary Criteria. 4. His Honour's decision was affected by a reasonable apprehension of bias. Particulars a) His Honour took the matter from the Docket of Judge Barnes, vacated the call-over and listed the matter for hearing on short notice. b) His Honour did not publish his judgment made on 21 July 2017. c) His Honour override previous procedural orders made by the Court and expedited the proceedings without any valid reason or any application by the Minister to do so. d) A reasonable person who was informed of the conduct of the Court in the circumstances above would believe the decision was affected by an apprehension of bias. 5. The decision of the court below was made in circumstances which denied the Applicant procedural fairness. Particulars a) The Applicant repeats the particulars in 4 above. b) The Decision of the Court to expedite the hearing of the matter and override previous decisions of the Court meant that the Applicant did not have sufficient time to prepare for the case and lost their ability to have legal representation. c) The appellant was refused an adjournment in circumstances where the hearing was brought forward and was not provided an opportunity to explain the reasons why she needed an adjournment and how long that adjournment would be. d) As a result of the bringing forward in the matter, the Appellants lost their solicitor who could not attend the new hearing date. 6. Further grounds to be provided upon publication of his Honour's judgment. 8 It is concluded that the appeal should be allowed and the matter remitted to the Federal Circuit Court for reconsideration in accordance with law. 9 The reasons for allowing the appeal turn upon both the orders made to ready the proceeding before the Federal Circuit Court for hearing (and the events that took place on 21 July 2017) and upon the brevity of such reasons as were given by the primary Judge. It is the combination of these two factors which has led to the conclusion that the decision appealed from should be set aside. Taken together, there is a disturbing and unanswered inference that the Appellants were not afforded a proper opportunity to adequately present for resolution such arguments as may have been available to them and a disturbing inference that such grounds of review as were advanced were more resolved by reference to generic principles of general application rather than by reference to the particular facts presented.

Grounds 1 - 3 10 The solicitor for the Respondent Minister was correct in submitting that Grounds 1 to 3 of the Amended Notice of Appeal were "unparticularised assertions of jurisdictional error". 11 And the solicitor was further correct to accept that those Grounds were to be understood as an attempt to "reagitate" the Grounds previously relied upon before the primary Judge. Those Grounds as formulated before that Court were as follows (without alteration): 1. The Second Respondent took into account irrelevant considerations at paragraph 24 of the decision. Particulars a) The Second Respondent states that the Applicant "…applied for the visa in an effort to secure her child's future and achieve a migration outcome for her family" b) The Second Respondent took a negative inference from this. However all genuine Refugees and persons desperately needing protection from persecution and harm have the goal of securing the future of their children and achieving a migration outcome for their families. 2. The Second Respondent made jurisdictional error as it relied on an incorrect interpretation and application of the relevant law. Particulars a) The Second Respondent states at paragraph 25 that it is "…not satisfied that the applicant has a well-founded fear of persecution in Nepal, now or in the reasonably foreseeable future, arising essentially and significantly for one or more of the five Convention reasons…" b) The requirement that the Second Respondent assess the Applicant under Section 36 (2) (a) under the definition of Refugee does not require an analysis of whether the harm is 'now or in the reasonably foreseeable future. c) The Second Respondent has mixed the test for 36 (2) (a) and 36 (2) (aa) by assessing whether the Applicant meets the Refugee Criteria 'now, or in the reasonably foreseeable future'. 3. The Second Respondent failed to consider relevant considerations while assessing whether the Applicant's meet the Complementary Criteria, namely the harm that will be faced by the Third Applicant child, who was born in Australia, if they were to return to Nepal. 12 The reasons given by the primary Judge were expressed in an ex tempore judgment, which were later reduced to writing as follows: Consideration Ground 1 26. In relation to Ground 1, the Tribunal identified logical and rational reasons in support of the adverse credibility findings. The inconsistencies of the first applicant and the delay in the applicants' application for a protection visa are obvious and relevant considerations and it was open to the Tribunal to take into account those inconsistencies and that delay in the making of adverse credibility findings. It was open to the Tribunal in the circumstances to make the adverse observation in relation to the real reasons behind the applicants' application for protection. No jurisdictional error is made out by Ground 1. There is no irrelevant consideration that the Tribunal took into account. Ground 2 27. In relation to Ground 2, 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 applicants 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 obligations 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 as alleged in Ground 2 is made out. Ground 3 28. In relation to Ground 3, it is apparent on the face of the Tribunal's reasons that the Tribunal considered the issue of complementary protection in relation to the second and third applicants and made adverse findings that were open on the material before the Tribunal. No jurisdictional error is made out by Ground 3. 13 Reservation has previously been expressed as to the giving of ex tempore reasons and the dangers inherent in giving such reasons: e.g. Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130 at [35], (2015) 234 FCR 207 at 219 to 220 per Flick, Reeves and Griffiths JJ. Obviously enough, some cases readily lend themselves to the giving of ex tempore reasons and in all cases there are competing considerations at play, including the factual or legal complexity of the matter to be resolved by judicial decision. 14 But such considerations can presently be left to one side. 15 The solicitor for the Respondent was correct in accepting that the primary Judge was under a duty to provide reasons for his decision: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 441 to 442. Meagher JA there identified the "purpose of providing reasons for decision" as follows: Perhaps the primary reason for an obligation on courts to provide reasons is the fact that a party seeking an appeal may generally only appeal where the trial judge has made an error of law. The absence of reasons or insufficient reasons may not allow an appeal court to determine whether the trial judge's verdict was or was not based on an error of law or an appealable error. However, the provision of full reasons has other benefits. A failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made. This Court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost. One reason is obvious: if decisions cannot be understood, a feeling of injustice can arise and, as Justice Brennan of the United States Supreme Court (see P Huxtable, "A Question-Mark Over The Adversarial System" (December 1995) 30 (No 11) Australian Lawyer 17 at 18) recently perhaps overstated: "…Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down." Aside from the sense of injustice which can be caused there is a broader interest in maintaining public acceptance of judicial decisions and the judicial system. The requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability. The provision of reasons has an educative effect: it exposes the trial judge or magistrate to review and criticism and it facilitates and encourages consistency in decisions. The educative effect does not stop with judges but extends to other lawyers, to government and to the public. Decisions of courts usually influence the way in which society acts and it is trite to point out that it is better to understand why one should act in a particular way. The provision of adequate reasons will save time for appeal courts both in reducing the number of appeals and in reducing the time taken in considering any appeals. Thus, any increase in judicial resources required at the trial level should be countered by a reduction in judicial resources required at the appellate level. (Some citations omitted.) And, more recently, in Food and Beverage Australia Ltd v Andrews [2017] VSCA 258, Redlich, Santamaria and McLeish JJA observed (footnote omitted): [204] This Court recently observed that the provision of a court's reasons for judgment serves at least four purposes: (a) the reasons enable the parties to see the extent to which their respective arguments have been understood and addressed, and to perceive the basis for the court's decision; (b) the giving of reasons enhances judicial accountability, both in the case itself and more widely; (c) the publication of reasons enables practitioners, legislators and members of the public to ascertain the state of the law and the basis upon which like cases will probably be decided in the future; and (d) reasons enable an appellate court to determine whether the decision was affected by appealable error. To this list of reasons for adequately explaining a judicial decision can be added: the assurance provided to the parties that their case has been resolved by reference to the particular facts and arguments there posed for judicial resolution; and the assurance provided to the public that the judicial function has in fact been discharged. Such reasons as are given must "indicate to the parties why the decision was made in order to allow them to exercise such rights as may be available in respect of that decision": Penhall-Jones v State of New South Wales (Ministry of Transport) [2006] FCA 934 at [25] per Tamberlin J. 16 A failure on the part of a judicial officer to provide adequate reasons, it is considered, is an integral aspect of what is embraced by the common law principle of an opportunity to be heard. "A miscarriage of justice can arise", it has been said, "where what is and is not disclosed in a judge's reasons is a breach of the principle that justice must not only be done but must be seen to be done": Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174 at [56], (2004) 60 NSWLR 127 at 135 per Ipp JA (Bryson JA and Stein AJA agreeing). See also: Kang v Yoo [2015] NSWSC 685 at [63] per Wilson J; Stenning v Sanig [2015] NSWCA 214 at [60] per Hoeben JA (Macfarlan and Gleeson JJA agreeing); Gandy v Guardian Real Estate (NSW) Pty Ltd [2016] NSWSC 821 at [79] per Wilson J. An entitlement to adequate reasons, it is considered, forms part of the notion that justice must not only be done but must also be seen to be done: cf. AAV15 v Minister for Immigration and Border Protection [2015] FCA 700 at [27], (2015) 230 FCR 454 at 461; AEG15 v Minister for Immigration and Border Protection [2015] FCA 702 at [12], (2015) 230 FCR 465 at 467. Although a failure on the part of a Judge to provide adequate reasons may also assist in a conclusion that there has been a denial of procedural fairness by reason of there being a reasonable apprehension of bias, a failure to provide adequate reasons also forms an integral part of an entitlement to an opportunity to be heard and an entitlement - once having been heard - to have relevant findings made and reasons provided as to why submissions have or have not prevailed. The fairness of the hearing process cannot be "seen to be done" if the reasons do not disclose what has in fact been done and why. 17 In relation to a judge exercising a judicial review jurisdiction in particular, it was previously said in SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 at [26], (2008) 247 ALR 582 at 588: [26] Whatever the ground of review, however, the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that Court proceeded and the reasons why the application to review the decision of the Tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons do not adequately address the grounds of review sought to be resolved if the litigant - or this Court - is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision. See also: COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [32] to [35] per Griffiths J. 18 The inadequacy in the reasons provided in the present proceeding emerges, it is respectfully concluded, by reason of: the absence of any identification of the "logical and rational reasons" relied upon by the primary Judge and an absence of any identification of the "adverse credibility findings" to which reference was made. Although the Tribunal did in fact make adverse findings as to credibility, it is unstated as to whether different considerations apply to one finding rather than another. Disbelief of a claim in one respect does not necessarily mean that a claimant is to be disbelieved on all claims. What is of importance is the identification of the factual basis upon which adverse findings have been made and the relevance of such findings to the claim made before the Tribunal. There is also a lack of identification of "[t]he inconsistencies" relied upon by the primary Judge; and the reason provided by the primary Judge in respect to the conclusion that "the Tribunal correctly identified the relevant law and … correctly applied the relevant law" (at [27]) being more a conclusion than any analysis of the argument advanced. Albeit not a matter of great significance, there is also an absence of any identification of the relevant law. More importantly, there is 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. Albeit of lesser concern is the reference to: the compliance by the Tribunal "with its obligations of procedural fairness in the conduct of the review" (at [27]). No Ground of Review before the Federal Circuit Court raised any argument as to a denial of procedural fairness on the part of the Tribunal. On one view, the observations in the reasons for decision of the Federal Circuit Court may be seen as no more than an observation made in passing; on another view, the observations may be seen as the incorporation of conclusions perhaps more relevant to another case and an observation indicative of a failure to pay specific attention to the arguments in fact raised for resolution in the instant case. 19 In reaching such conclusions, no opinion is expressed as to whether the decision of the Tribunal should be set aside or whether the primary Judge should have dismissed the application for review of that Tribunal decision. Indeed, one of the reasons for expressing reservation as to the conclusion that the appeal should be allowed is the prospect that the decision of the Tribunal and dismissal of the application for review by the Federal Court may well have been correct given the claims made and the arguments presented. 20 The conclusion reached on appeal, however, focusses in large part upon the absence of explanation provided by the primary Judge. In a busy Court such as the Federal Circuit Court it may well be the case that in many cases no extensive review of the reasons for decision of the Tribunal is called for. Indeed, in some cases an extensive review of those reasons may itself conceal a failure to come to grips with the precise challenge made to that reasoning process. But an applicant to that Court is entitled to reasons which expressly address the arguments advanced; expressly address that part of the Tribunal's reasons and findings of fact which go to those arguments; and an explanation as to why those reasons and findings are of relevance to the arguments relied upon. A failure to make any reference to such matters is tantamount to no greater reasoning process than a statement to a claimant that: "You lose. Your arguments are rejected".

Grounds 4 & 5 - The denial of procedural fairness 21 There was considerable uncertainty as to the manner in which the argument as to a denial of procedural fairness was being advanced before this Court. But one thing was certain - any argument as to there being a reasonable apprehension of bias on the part of the primary Judge was abandoned. Ground 4 of the Notice of Appeal as originally drafted was not relied upon. The argument appeared to focus upon whether the Appellants were given a reasonable opportunity to be heard before the Federal Circuit Court. That argument fell within the Particulars to Ground 5 of the Amended Notice of Appeal. 22 The factual origins of the argument as to there being a denial of an opportunity to be heard before the Federal Circuit Court, it was understood, commenced with the orders made in 2016 and 2017 to ready the application before that Court for hearing. 23 The proceeding came before that Court on the following two occasions in 2016, namely: on 11 February 2016, when a Registrar made orders (inter alia) for the filing of any amended application, affidavits and submissions and listing the matter for call-over before a Registrar on 13 October 2016; and on 10 October 2016, when the same Registrar listed the proceeding for call-over before Judge Barnes on 24 July 2017. Thereafter, in 2017, the proceeding again came before the Federal Circuit Court on the following two occasions, namely: on 4 April 2017, when the primary Judge whose decision is now under challenge made orders in Chambers vacating the 24 July 2017 call-over and fixing the matter for hearing on 21 July 2017 before himself; and on 21 July 2017, when the primary Judge (inter alia) dismissed the proceeding. The written reasons for the orders made on 21 July 2017 were dated 16 August 2017 and were published online sometime thereafter. 24 The transcript of the hearing on 21 July 2017 records the following exchange at the outset: HIS HONOUR: You are the first applicant known by the pseudonym CPF15. Is that correct? THE INTERPRETER: Yes. Yes. HIS HONOUR: And you need an interpreter even though you came over on a student visa in 2008? THE INTERPRETER: Yes. HIS HONOUR: And, Ms Cheesman, you appear for the first respondent. MS CHEESMAN: May it please the Court. HIS HONOUR: Yes. Ms Interpreter, I will have you sworn, please, or affirmed. THE INTERPRETER, SWORN TO INTERPRET HIS HONOUR: Ms Cheesman, the matter is listed for a final hearing. Is that correct? MS CHEESEMAN: Yes, your Honour. 25 The primary Judge then proceeded to explain to the "first applicant", namely the wife, that the proceeding was listed for final hearing and sought to explain the task of that Court in resolving the application before it. The evidence to be relied upon was then identified. There was then the following exchange: HIS HONOUR: Ms Applicant, have you seen the submissions of the first respondent? THE INTERPRETER: Yes. I got it in email and interpreted this morning, your Honour. HIS HONOUR: Those submissions, Ms Applicant, explain why the first respondent says that the tribunal's decision was not unlawful or unfair and why the first respondent submits that none of the grounds in your application make out any relevant legal error. What do you want to say in answer to those submissions or as to why the tribunal's decision was unlawful or unfair? THE INTERPRETER: What sort of error, your Honour, are we talking about? The primary Judge then attempted to again explain the role of the Federal Circuit Court and there was then the following exchange: THE INTERPRETER: I don't know anything about the laws and regulations here, your Honour, but I know I'm suffering and I will suffer if I have to return. HIS HONOUR: Anything else you want to say? THE INTERPRETER: I cannot return to Nepal; I've got a small kid - small child. HIS HONOUR: Anything else you wish to say? THE INTERPRETER: If I have to return, the people who are hassling me before are still there and they will repeat the same thing, and that is why I cannot return. This is in the name of the party they're doing - taking revenges personally, on the personal level too. HIS HONOUR: Yes. Ms Applicant, I don't have power to make fresh findings of fact. I don't have power to revisit the merits. I don't have power to make a decision on compassionate grounds. The only power I have is to consider whether the tribunal's decision is affected by a legal error in the nature of the decision being unlawful or the decision being unfair. THE INTERPRETER: Your Honour, I was - I don't know about law. I was going to engage a barrister who knows about laws, but then my hearing was brought forward than the required date, so I didn't get that opportunity. HIS HONOUR: Yes. Is there anything else you want to say? THE INTERPRETER: That's all, your Honour. HIS HONOUR: Are you asking for an adjournment? THE INTERPRETER: Yes, your Honour. HIS HONOUR: What's the reason why you should be given an adjournment? THE INTERPRETER: Because I had to pay my child's fee and then I don't have proper work at present. That is why I needed time. HIS HONOUR: But your proceedings were commenced on 3 December 2015, Ms Applicant. If you haven't been able to raise the necessary funds, why should the Court have any confidence you would be able to by a further adjournment? THE INTERPRETER: I have to pay a lot of fee for my child, 5000 in a year, and also for the child here and all I have to pay. HIS HONOUR: Have you given any earlier notice of this request for an adjournment to the first respondent? THE INTERPRETER: No. We didn't know anything about that: what we should be doing. HIS HONOUR: Is the adjournment opposed, Ms Cheesman? MS CHEESMAN: Yes. The adjournment is opposed, your Honour. HIS HONOUR: Ms Applicant, I don't propose to grant you an adjournment and I will give reasons as to why. Is there anything else you want to say as to why the tribunal's decision is unlawful or unfair? THE INTERPRETER: No. I don't know anything about lawyer. HIS HONOUR: Ms Applicant, I wasn't asking you whether you knew anything about law, I was giving you an opportunity to say anything you wished to say as to why you contend the tribunal's decision is unlawful or unfair. Is there anything else you wish to say? THE INTERPRETER: Nothing. 26 The "reasons" referred to by the primary Judge for refusing the adjournment were later expressed as follows: Application for an adjournment [22] The first applicant then raised that she was hoping to have a barrister represent her, but because the matter was brought forward she was not able to have a barrister present. The Court sought to clarify whether the first applicant was seeking an adjournment, and the first applicant confirmed that she was seeking an adjournment. No earlier notice of an adjournment had been given to the first respondent. The adjournment was opposed by the first respondent. [23] The first applicant said that she had spent money on her child and had limited ability to earn income and did not have the capacity to afford a barrister. The Court asked the first applicant why, in circumstances when the proceedings were commenced on 3 December 2015, the Court should have any confidence that an adjournment would be of any utility. Nothing said by the first applicant from the bar table identified any utility in an adjournment. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice, and it was for these reasons that the adjournment was refused. [24] Nothing said by the first applicant from the bar table identified any jurisdictional error. 27 The refusal of the adjournment, it is concluded, effectively denied the Appellants an opportunity to be heard. But whether the refusal of the adjournment was an erroneous exercise of discretion is, of course, a separate question. 28 Appellable error may be made out and a denial of procedural fairness and jurisdictional error established where an adjournment has been unreasonably refused: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [40], (2002) 209 CLR 597 at 611 per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332. An appellate court, however, will rarely disturb decisions to grant or refuse adjournments: Blazevski v Judges of the District Court of NSW (1992) 29 ALD 197 at 200 per Kirby P. 29 Before interfering with the decision of the primary Judge in the present case refusing an adjournment, it should necessarily be further recognised that steps taken by individual Judges of the Federal Circuit Court to bring a matter on for hearing sooner rather than later should obviously not be discouraged. All too frequently it may well be suspected that an adjournment would serve no useful purpose and that the objective of many litigants is simply to achieve a postponement of a hearing. That is not, of course, any comment upon the objective of the Appellants in the present case and obviously enough the facts and circumstances of each individual case must necessarily be considered before any conclusion could be reached. 30 On the facts of the present case, it is nevertheless concluded that appellable error has been exposed by reason of the combination of the following factors: the fact that the proceeding was initially only listed for callover on 24 July 2017 and that, had that callover then taken place, a date for final hearing would then have been set for some time thereafter; the fact that the date for the callover was unilaterally vacated in Chambers by the primary Judge and without notice to the parties; and the fact that no inquiry was made of the wife as to when she could expect to be in funds to afford legal representation or the extent of any adjournment if one was to be granted. No consideration was apparently given to whether even a short adjournment could accommodate both the objective of expeditious resolution of cases and the interests of the now-Appellants in securing legal representation. Detailed written submissions, it may be noted, had previously been prepared on behalf of the now-Appellants by legal representatives and provided to the Administrative Appeals Tribunal in October 2015. The statements made to the primary Judge by the wife as to her desire to retain legal representation was, accordingly, not necessarily a mere statement made to secure extra time but rather a statement perhaps founded upon the prior steps taken by the Appellants in order to have their case presented properly. Although the orders of the primary Judge on 4 April 2017 to vacate the callover to be held on 24 July 2017 and to set down the proceeding for final hearing afforded the parties approximately 3½ months prior notice of the hearing to be held in July 2017, it is respectfully concluded that the combination of these factors together with the following factors nevertheless expose appellable error: the exchange at the very commencement of the hearing, namely the reference by the primary Judge to the wife needing an interpreter "even though you came over on a student visa in 2008" may be seen as having put the wife "on the back foot" right from the outset; the fact that the wife was experiencing obvious difficulties in both understanding and making any meaningful submissions in respect to her application which had been listed for final hearing; and the fact that the wife made reference to securing the services of a barrister "who knows about laws, but then my hearing was brought forward than the required date, so I didn't get that opportunity". It is also disturbing that the reasons provided by the primary Judge for refusing the adjournment, when ultimately published: make no reference to the orders made in Chambers or the circumstances in which the callover date was vacated and the matter listed for hearing. A more complete account of the background facts of relevance to the refusal of the adjournment may have been otherwise expected; and summarily conclude that there is a lack of "utility" in granting an adjournment without any real analysis of the Grounds of review being advanced before that Court and the prospect that the Grounds, properly argued, should an adjournment have been granted and legal representation secured, may ultimately be seen to have merit.

CONCLUSIONS 31 It is concluded that the appeal should be allowed. That conclusion, it should nevertheless be recognised, has been reached with considerable misgiving. 32 Brevity of reasons, of itself, does not establish a failure to give reasons or jurisdictional error. Indeed, in some cases, brevity of reasons and brevity of reference to the facts upon which such reasons are provided, is to be encouraged. And ex tempore reasons are not to be "picked over" and "appropriate allowance should be given for the pressures under which judges … are placed by the volume of cases coming before them": Maviglia v Maviglia [1999] NSWCA 188 at [1] per Mason P. See also: Wyman v Queensland [2015] FCAFC 108 at [57], (2015) 235 FCR 464 at 478 per North, Barker and White JJ. But neither brevity nor the fact that reasons are given ex tempore is a licence to fail to adequately set forth even in very summary form the arguments presented, the factual basis upon which those arguments are to be resolved, and the reasons for accepting or rejecting those arguments. Nor is the workload of a busy Court any justification for not providing adequate reasons for decision. The need to resolve proceedings quickly and expeditiously is no licence to erode such an essential characteristic of the judicial function as the giving of reasons. A failure to provide reasons may, in some cases, be tantamount to a failure to properly discharge a judge's judicial responsibilities. 33 Considerable misgiving is also expressed in respect to concluding that the refusal of the adjournment deprived the Appellants of an opportunity to be heard. As correctly submitted on behalf of the Respondent Minister, the Appellants had already been given a considerable period of time to prepare for the hearing or to prepare to make an application for an adjournment. 34 It must forever remain a delicate balance for an extremely busy Court, such as the Federal Circuit Court, to balance the desire to hear and resolve cases expeditiously whilst at the same time ensuring that the parties both have an adequate opportunity to be heard and to ensure that adequate reasons are given to provide some comfort to an unsuccessful claimant that justice has been done and been seen to be done. 35 But it is the combination of these considerations, and the manner in which the case came on for hearing and was resolved by the Federal Circuit Court Judge, that has led to the conclusion reached.

THE ORDERS OF THE COURT ARE:

The appeal is allowed.
The matter is remitted to the Federal Circuit Court for reconsideration in accordance with law.
The First Respondent is to pay the costs of the Appellants, such costs including the preparation of the Outline of Written Submissions filed on 1 November 2017 and 13 December 2017. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (24)

Cited By (6)