CQX18 v Minister for Home Affairs

Solicitor for the Third Respondent: HWL Ebsworth Lawyers

Counsel for the First, Second and Fourth Respondents: The First, Second and Fourth Respondents filed submitting notices save as to costs

AND: THE HONOURABLE ALEXANDER STREET, A JUDGE OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA First Respondent

THE JUDGES OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA Second Respondent

MINISTER FOR HOME AFFAIRS Third Respondent IMMIGRATION ASSESSMENT AUTHORITY Fourth Respondent

JUDGE: PERRAM J DATE OF ORDER: 22 March 2019

1. The application be dismissed with costs. THE COURT DIRECTS THAT:
2. The First and Fourth Respondents be removed as separate parties to the proceedings.
3. The Second Respondent be changed to 'The Federal Circuit Court of Australia'.
4. The Third Respondent become the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an application for writs of certiorari and mandamus addressed to Judge Street (the First Respondent), the Judges of the Federal Circuit Court of Australia (the Second Respondent) and the Minister for Home Affairs (the Third Respondent). It should be dismissed with costs. The question the case presents is whether the Federal Circuit Court of Australia ('Federal Circuit Court') acts outside the jurisdiction conferred on it by Parliament where, having made orders to dismiss a case and having given oral reasons at the same time for doing so, the judge dealing with the case does not then produce a written version of those reasons for a substantial period of time after the time to appeal the decision has expired. A secondary question is whether, assuming that to be so, it would be appropriate to grant a writ of certiorari where a mechanism still lies to bring an application for leave to appeal to this Court.

A Preliminary Matter 2 As it presently stands, the First Respondent to the application is named as 'The Honourable Alexander Street, A Judge of the Federal Circuit Court of Australia', the Second as 'The Judges of the Federal Circuit Court of Australia', the Third as the Minister for Home Affairs and the Fourth as the Immigration Assessment Authority. There are two issues with this list. 3 First, Judge Street should be removed as a respondent. Whilst understandable, because Judge Street is the judge who exercised the jurisdiction of the Federal Circuit Court in the case at hand, the naming convention adopted by the Applicant is not appropriate. This proposition is derived from s 8(4) of the Federal Circuit Court of Australia Act 1999 (Cth) ('Federal Circuit Court Act') which provides that the Federal Circuit Court 'consists' of its Chief Judge and the other Judges holding office 'from time to time'. Consequently, it has no separate legal personality from its Chief Judge and the other Judges of whom it entirely and only exists. No question of whether the Court is an officer of the Commonwealth therefore arises because 'the Court' is merely a useful shorthand for 'The Chief Judge of the Federal Circuit Court and the Judges from time to time holding office in that Court' all of whom are officers of the Commonwealth amenable to relief under s 39B of the Judiciary Act 1903 (Cth). 4 This is certainly the procedure adopted in relation to other inferior tribunals which are said to 'consist' of their members. Thus the proper respondent in an application for writs of certiorari and prohibition against the former Refugee Review Tribunal is 'The Refugee Review Tribunal' and not the Tribunal member making the decision: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 at 310 [43] per McHugh J, 325 [91] per Gummow J, 341 [153] per Kirby J, and 347 [180] per Hayne J. The same is true of the Fair Work Commission: Deva v University of Western Sydney [2011] FCA 199 at [23]; see also the comprehensive review of the authorities in this intriguing area by Flick J in Warrell v Fair Work Commission (No 2) [2013] FCA 402 at [3]. The slight twist here perhaps is that the Federal Circuit Court is an inferior court and not an inferior tribunal but, at least for present purposes, that distinction is immaterial (cf Craig v South Australia [1995] HCA 58; 184 CLR 163 at 176-177 [11]). Accordingly, there is no reason for Judge Street to be an individual respondent to the application for relief. 5 Secondly, as the Immigration Assessment Authority ('the Authority') put on a submitting appearance in the Court below and its orders are not affected by the relief presently sought, it is not a necessary a party to this suit. The proper respondents are, therefore, the Court below and the Minister for Home Affairs ('the Minister').

Facts 6 The Applicant is a citizen of Iran who applied for a visa, not identified in the reasons of the Court below, but being in fact a Safe Haven Enterprise Visa subclass 790. A delegate of the Minister refused to grant such a visa on 1 March 2018 and that decision was affirmed by the Authority on 18 April 2018. The Applicant then applied for the issue of writs of certiorari and mandamus directed against the Authority on 22 May 2018. The case was heard in the Federal Circuit Court on 19 July 2018 and decided by Judge Street that day. The Judge made two orders: that the application be dismissed and that the Applicant pay the Minister's costs in the amount of $7,328. 7 At the time those orders were made the Judge also gave reasons for making them which were delivered orally. The Applicant was not present in the courtroom when this occurred but he could see what was happening via a video link from Yongah Hill Immigration Detention Centre ('Yongah Hill') at which he was being held in Western Australia. Although he was assisted by an interpreter, the interpreter was in Sydney. The Applicant did not have a lawyer present which, in cases of this kind, is unexceptional if disheartening, and does not speak good English which is also not unusual in refugee cases. 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 Judge Street was saying or to have been able to reduce what he was saying to writing. 8 Judge Street took another 75 days to publish a written version of the oral reasons he delivered. The circumstances surrounding this delay warrant examination. His Honour pronounced the Court's orders and gave his reasons for doing so on 19 July 2018. Following that the Applicant remained in immigration detention. On or about 31 August 2018 the Applicant succeeded in contacting by telephone Ms Margaret McCabe who is a solicitor in Sydney. At that time the Applicant was being held at Yongah Hill which is around 100 km north-east of Perth. He sought from her legal assistance in relation to what he should do following Judge Street having dismissed his case. As might naturally be expected, Ms McCabe asked him for a copy of the Judge's reasons. But the Applicant did not have a copy and he could not recall why the Judge had dismissed his case. In a subsequent telephone call, the Applicant explained to Ms McCabe that the reason he did not have the Judge's reasons was because he had never received them. Ms McCabe thought this odd. It did not occur to her that the reason the Applicant did not have a written version was because the Judge had failed to produce a written version. If I may say, so as to allay any concerns Ms McCabe might hold, it would not have occurred to me either. 9 On 19 September 2018 Ms McCabe performed searches on the databases maintained by Austlii and Jade but could find no trace of a judgment in the Applicant's case. On the same day she contacted the Federal Circuit Court Registry seeking to obtain an official copy of the reasons for judgment which she was still self-evidently assuming existed. She was told that the judgment was not on the Commonwealth Courts Portal and that she should inquire with the Judge's chambers. 10 She did so at about 10 am on 21 September 2018 and left a message on the Judge's associate's voicemail requesting a return call. She then spoke to the Minister's solicitor who also did not have a copy of the reasons. Like Ms McCabe, the Minister's solicitor thought this was odd. 11 Not having heard back from the Judge's chambers, Ms McCabe again called at around 2 pm on the same day but the call went unanswered. At 3 pm, not having heard back from Judge Street's chambers, she sent an email to his Honour's associate. She pointed out that the non-provision of the reasons had put the Applicant in a difficult position in relation to any appeal and asked, with admirable restraint in the circumstances, when it would be that the Court's reasons might be available. 12 Nothing came of this which demonstrates a disheartening degree of professional discourtesy. On 24 September 2018 Ms McCabe again called the Judge's chambers and this time was successful in speaking to someone who I assume was the Judge's associate. Ms McCabe kept a file note of the discussion which reads as follows: '… "I am aware of your voicemail messages but we discourage calls to chambers because of the volume of matters" And "I have read your email and have made it a priority to put it up". I then asked [the associate] in words to the effect: "How long will it take to put the decision up on the internet"? [She] said to me in words to the effect: "A few weeks probably" I then asked [her] in words to the effect: "Can I get a copy of the reasons for decision now"? [She] replied to me in words to the effect: "No you can't because the written reasons haven't been settled". I then asked [her] in words to the effect: "Have the reasons been pulled down from the portal for revision? Is that why they are not currently available"? [She] replied to me in words to the effect: "No, the reasons have never been put on the ComCourts portal".' 13 From this conversation it may be inferred that the Judge was engaged in a process of revising the oral reasons. It is not clear whether he had at this point begun to settle the reasons or not. Regardless, whatever the Judge was doing with the reasons was, according to his associate, going to take several further weeks. In that circumstance, I find that the 75 day delay in publishing the written reasons was caused by the process adopted by the Judge in settling his reasons. 14 An appeal lies from final orders made by the Federal Circuit Court in most civil cases, including this one: Federal Court of Australia Act 1976 (Cth) ('Federal Court Act') s 24(1)(d). By r 36.03 of the Federal Court Rules 2011 (Cth) ('FCR') any notice of appeal must be filed within 21 days of the date on which the order was made or - and this matters - by subsection (d)(ii) 'on or before a date fixed for that purpose by the court appealed from'. The 21 day period expired at the end of 9 August 2018 at which time the Court had not reduced its reasons to writing. It did not do so until 28 September 2018, and the reasons do not seem to have been made publicly available until 2 October 2018, some 54 days after the time to appeal had expired (and some 75 days after the original judgment). At no point did Judge Street make an order extending the time in which an appeal could be brought under FCR 36.03 although he could easily have done so: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26]. Neither did the Judge make any order pursuant to r 16.02 of the Federal Circuit Court Rules 2001 (Cth) suspending the effect of the Court's orders until its written reasons were produced.

Jurisdictional error? 15 I do not think it is necessary to form a concluded view on this issue since I am prepared to assume it in the Applicant's favour. However, out of deference to the arguments which were advanced I doubt that a failure to reduce an oral judgment to writing within the appeal period involves jurisdictional error. There are a number of reasons for this. 16 First, it is not self-evident that there is any legal obligation on a Federal Circuit Court Judge to produce a written version of oral reasons at all. No such requirement appears in the Federal Circuit Court Act or the FCR. The Federal Circuit Court is an inferior court and its procedures are to be found in its constitutive legislation and in what may legitimately be inferred from that legislation: Palmer v Clarke (1989) 19 NSWLR 158 ('Palmer v Clarke') at 166-167 per Kirby P (citing Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 at 447 per Herron CJ, Wallace P and Manning JA). It may in light of that be doubted, I think, that the Federal Circuit Court even has a power to revise its oral judgments (although there is no occasion presently to express a concluded view on that matter). If there is no obligation to produce a written version of oral reasons then a fortiori there can be no such obligation to produce the written version at any particular time. 17 Secondly, whilst one may accept that the Court could produce a written version of its reasons if it chose, there is much to be said for the view that once it has pronounced its orders and given orders it is functus officio and has no further legal function: Palmer v Clarke at 172 per Kirby P, and 174 per Priestley JA; cf CLU16 v Minister for Home Affairs [2019] FCA 147 at [18] per Rares J. As such, it is conceptually difficult to see how the subsequent production of a written set of reasons can have any impact on the earlier exercise of jurisdiction. 18 Thirdly, if a failure to produce a written set of the oral reasons within the appeal period were a jurisdictional error, it would be difficult to ascertain when the error was made. One could not know until the expiry of the appeal time (or until the earlier delivery of the written reasons) whether the error had been made. Until either of those events, the status of the Court's orders would be essentially unknowable. This matters because an order made by an inferior court in excess of its jurisdiction is invalid. Particularly where questions of contempt of court may intrude, it is unsatisfactory to have the orders of the court in an unknown state of validity pending ascertainment of whether the written reasons are delivered within the appeal period. 19 Fourthly, I do not think it may be said that by failing to produce reasons within the period set for the bringing of an appeal the Federal Circuit Court had denied the Applicant procedural fairness. No doubt an obligation of procedural fairness lay upon the Federal Circuit Court for procedural fairness 'is an immutable characteristic of a court': Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at 110 [194] per Gageler J. But that obligation related to the orders the Court below was to make. It did not relate to the appellate processes of this Court. That said, if the Judge had a made a decision not to extend the time during which an appeal could be brought without first hearing from the Applicant there would have been a denial of procedural fairness. But there is no evidence of any such negative decision by the Judge. 20 However, notwithstanding these doubts for present purposes I am content to assume that a jurisdictional error was made once the Court failed to produce the written reasons within the 21 day period.

Should a writ issue? 21 As I have noted above, this Court's appellate jurisdiction in relation to the Federal Circuit Court is conferred by s 24(1)(d) of the Federal Court Act. What may be appealed are 'judgments' of the Federal Circuit Court, a term defined in s 4 of the Federal Court Act to mean a 'judgment, decree, order or sentence' and includes a conviction. Section 4 does not discuss the question of validity but it includes both valid and invalid judgments. It is true that one interpretation of the definition of judgment would exclude invalid orders and judgments but the definition is also capable of including them. The practical effect of adopting a narrow reading of the definition would be to exclude this Court's appellate jurisdiction whenever the Court below had made a jurisdictional error. I would prefer the broader interpretation which is consistent with the way in which questions of this kind have traditionally been approached: cf Calvin v Carr [1980] AC 574. There the Privy Council thought that even though a decision arrived at in breach of the rules of procedural fairness was a nullity, nevertheless, it was enough of a 'decision' to be susceptible to appeal; in other words, the decision 'had sufficient existence in law to justify an appeal': at 590. 22 This Court has the power by FCR 36.05 to extend the 21 day appeal time even after the appeal time has expired although only by leave. The fact is, therefore, that the Applicant still has appellate remedies. It is well established that the grant of a writ of certiorari or mandamus may be refused on discretionary grounds if a more convenient and satisfactory remedy exists: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; 78 CLR 389 at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at 107-108 per Gaudron and Gummow JJ; M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195; 223 FCR 441 at 445 [7] per Finkelstein J; Federal Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; 305 ALR 534 at 543 [13] per Edmonds, Pagone and Davies JJ. Indeed, the Full Court recognised in the last mentioned case that the availability of an appeal as an avenue to correct an error of law would ordinarily be a powerful reason not to grant certiorari. 23 That is not precisely the situation here, of course. The Applicant does not have an untrammelled right to appeal because he is out of time. But he does have right to ask for an extension of time and the manner in which it is established that that jurisdiction is to be exercised requires a two stage analysis: why the application has been brought late and whether it has sufficient merit to warrant a grant of leave. In a case where the delay has been the result of a failure by the Judge below to produce reasons within the timeframe contemplated by the FCR for the bringing of an appeal, the first question will inevitably be answered in favour of an applicant. It is true that an applicant will still need to run the gauntlet of demonstrating that their case has some merit but the same will be true on an application for writs of certiorari and mandamus. It is difficult, for example, to imagine that the Court would decide to quash a decision of the Federal Circuit Court where the reasons were delivered late (assuming that to be a jurisdictional error) if not persuaded that there was some utility to doing so. It could not be useful to do so where the consequence was only to compel the Federal Circuit Court to hear again a case which the Federal Court thought had no prospects of success. 24 This might suggest that the two remedies behave in a largely similar fashion. However, that is not so. If the Court grants leave to appeal out of time it will be able to deal with the case itself and, save in rare circumstances where a retrial may be necessary, the appeal will settle the outcome of the litigation once and for all. By contrast, were the applicant to be successful in having orders of the Federal Circuit Court quashed as a result of the late delivery of reasons by the Judge, this would only mean that a writ of mandamus would need to issue and the Federal Circuit Court would be compelled to hear the case a second time. The procedural choice made by the Applicant in this case results therefore in three hearings rather than two: a trial, an application for writs of certiorari and mandamus, and a fresh hearing. If he took the appeal route there would be but two hearings. There is also, obviously enough, a corresponding effect in terms of delay. 25 The Applicant submitted that this was not so in the present case because the effect of what the Federal Circuit Court had done to him in this case was to remove from him altogether his right to appeal to this Court and to replace it instead with a right to apply for leave to appeal out of time. Had the Federal Circuit Court published its written reasons within the appeal time he would have been entitled to put his arguments directly to this Court without first having to seek its leave. Now, because he must seek leave to appeal out of time under FCR 36.05, he is confronted with the possibility that leave may be refused if the Court were to accept, for example, that his case was of insufficient merit to justify an extension. Stripped down to its essentials, however, I do not think that submission entails any procedural disadvantage to the Applicant. If his case has merit he will obtain leave because his explanation for missing the appeal time is compelling; if his case has no merit, he will not. The only circumstance in which he loses out is the circumstance in which his case has no merit. 26 The Applicant further submitted that the grant of writs would operate as an encouragement to the Judges of the Court below to reduce their oral decisions to writing within the appeal time. I do not accept that is an appropriate reason to grant relief. What happened in this case should never have happened but it is not the role of this Court to discipline the Judges of the Federal Circuit Court. That function is reposed elsewhere. 27 In those circumstances, where appellate remedies still lie, I would decline to order that writs of certiorari and mandamus be issued even if I were otherwise satisfied that the Federal Circuit Court delivering its written reasons so late constituted a jurisdictional error. In the event that the Applicant now decides to seek an extension of time in which to appeal I would indicate that although I have determined the present issue against him, his application was a reasonable one and, therefore, any delay engendered by it was reasonable too. 28 The order will be that:

1. The application be dismissed with costs. I further direct that:
2. The First and Fourth Respondents be removed as a separate parties to the proceedings.
3. The Second Respondent be changed to 'The Federal Circuit Court of Australia'.
4. The Third Respondent be styled the First Respondent. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.