EDI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The Federal Circuit Court 4 The appellants sought judicial review of the Tribunal's decision in the Federal Circuit Court. At the commencement of the proceeding, and at the hearing of the application, the appellants were unrepresented. They did not file written submissions before the hearing, despite being ordered to do so. The grounds of their application were as follows - 1. The [Tribunal] denied the applicant natural justice or procedural fairness in making the decision. 2. The [Tribunal] has ignored relevant consideration in making the decision. 3. The [Tribunal] failed to consider and determine whether the applicant faces a real chance of persecution in Malaysia on the basis of ethnicity. It could give rise to a well-founded fear of persecution for a convention reason. 5 The hearing before the Federal Circuit Court took place on 3 September 2018, and the primary judge's written reasons were published and final orders made one year later, on 3 September 2019. There is no transcript of the hearing available to this Court. 6 On the day of the hearing, the primary judge made orders for further submissions, ordering that the Minister file and serve submissions within 14 days, and that the appellants file and serve "anything in response" within 14 days thereafter. On 17 September 2018, the Minister filed five pages of written submissions that addressed three questions - (1) Whether the DFAT country information on Chinese Malaysians should have been put to the applicant for comment because it was information arising under section 424A(1) of the Migration Act 1958 (Cth) (the Act). (2) Whether the decision of the Full Court in Minister for Immigration and Border Protection v Ly [2018] FCAFC 123 had any bearing on the matter. (3) Whether the Tribunal considered the applicant's claim that he would suffer harm as an ethnic Chinese Malaysian. 7 On 1 October 2018, the appellants filed written submissions in response. The appellants' submissions were also of five pages in length, and were filed by a solicitor on the appellants' behalf. In addition, the solicitor filed a notice of address for service dated 1 October 2018. 8 The appellants' written submissions were professionally prepared, and cited a number of authorities. The main points advanced in the submissions were that - (1) The Tribunal had been required to give the appellants particulars of the country information on which it relied for comment. The appellants submitted that s 424A(3) did not apply because the country information was not "just about a class of persons". (2) The decision of the Full Court in Minister for Immigration and Border Protection v Ly [2018] FCAFC 123 supported the appellants' submission that the Tribunal was required to raise the country information with the appellants, and it had failed to do so. (3) The Tribunal had failed to consider a separate and independent claim that had been made on the basis of the appellants' Chinese ethnicity because it conflated that claim with the claims concerning the operation of the restaurant, which the Tribunal had rejected. As part of this submission, it was also contended that the Tribunal had considered only whether the appellants feared being killed, and had not considered other serious harm falling short of loss of life. 9 The primary judge's reasons for judgment of 3 September 2019 made no reference to the fact that her Honour had made orders on 3 September 2018 for further written submissions, made no reference to the written submissions that had been filed pursuant to that order, and did not address the issues raised by those written submissions. Indeed, at [11] of the reasons for judgment, the primary judge stated that the appellants had not filed written submissions, referring to orders made on 5 July 2017 that the appellants file written submissions 28 days before the hearing. The primary judge's reasons addressed other submissions that were made by the appellants orally at the hearing (see [22], [31], and [35] of the primary judge's reasons). There are three other anomalous features of the primary judge's reasons and orders. First, the cover page of the judgment states "Date of Last Submission" as 29 August 2019. This Court has been unable to identify any such submissions. Second, the name of the appellants' solicitor who filed their written submissions is not recorded. Third, the first order made by the primary judge was - The Amended Initiating Application filed on 17 May 2018 is dismissed 10 This Court has been unable to identify an amended initiating application filed on 17 May 2018. 11 For completeness, I record that by an affidavit dated 16 April 2018 and filed in the Federal Circuit Court on behalf of the Minister, the Minister disclosed that notification had been given to the Tribunal that s 438(1)(a) of the Migration Act applied to certain information in the relevant files, and stated that disclosure of the information would be contrary to the public interest on the ground that the information related to "an internal working document and business affairs". The affidavit annexed as exhibits the notification, and the documents the subject of the notification, and the deponent stated that a copy of the exhibit had been served on the appellants. In written submissions to the Federal Circuit Court, the Minister drew attention to the certificate, accepted that it was invalid, but submitted that the non-disclosure of the certificate resulted in no practical injustice. The reasons of the primary judge make no mention of the certificate, or whether the appellants made any submissions about it.

The Appeal 12 The appellants are unrepresented on this appeal, and addressed the Court through a Mandarin interpreter. They did not file any written submissions, as they were ordered to do. The Minister was represented at the hearing of the appeal by counsel, Mr Wood. 13 The appellants' grounds of appeal are as follows - 1. Federal Circuit Court failed to consider the second respondent acted in breach of the rules of procedural fairness. 2. The [Tribunal] is affected by jurisdictional error in that it did not put adverse information relied upon as part of the decision to the appellant for comment. 3. The [Tribunal] has ignored relevant consideration in making the decision. 4. The [Tribunal] failed to consider and determine whether the appellants face a real chance of persecution in Malaysia on the basis of ethnicity. 14 The Court ordered that the Minister prepare the appeal book. The appeal book did not contain the primary judge's orders of 3 September 2018, or the parties' written submissions that were filed in the Federal Circuit Court pursuant to those orders. I accept Mr Wood's submission that the terms of the Court's orders for the filing of the appeal book did not require the inclusion of those documents. I also accept that the appellants' grounds of appeal are broadly expressed, and do not by their terms direct attention to their written submissions below and to the primary judge's failure to consider them. The appeal book filed by the Minister complied with the Court's orders. 15 The written submissions filed on behalf of the Minister on appeal were not prepared by counsel: they were prepared by the Minister's solicitors. Because the appellants did not file written submissions on appeal, the Minister's submissions were prepared without the benefit of knowing how the appellants might formulate their case. The Minister's submissions at [11] correctly identified the date of hearing before the primary judge as 3 September 2018, but stated incorrectly that the primary judge had given judgment and pronounced orders at the conclusion of the hearing - 11. On 3 September 2018, the application came on for hearing before her Honour Judge Obradovic (the primary judge), at the conclusion of which the primary judge handed down judgment and pronounced orders dismissing the application with costs (AB 20-30). 16 However, at [17] and [18] of the Minister's submissions, reference was made to written submissions of the parties following the hearing below, and the Minister related those submissions to Ground 2 of the notice of appeal, which the Minister submitted was a "new ground, not relied upon in the Court below" - 17. Ground two is a new ground, not relied upon in the Court below. However, this ground reflects a question raised by the primary judge at the hearing and about which the parties made written submissions following the hearing. The first respondent therefore does not oppose the appellants being granted leave to rely on this new ground. 18. The appellants do not particularise the adverse information which they say ought to have been provided to them for comment by the Tribunal. The first respondent understands that the appellants intend to argue that the Tribunal was obliged to put country information to them for their comment under section 424A(1) of the Migration Act 1958 (Cth) (the Act). 17 The Minister's submissions on appeal did not refer directly to the terms of the appellants' written submissions dated 1 October 2018 filed in the Federal Circuit Court, but the submission at [18] that the Minister understood that the appellants intended to argue that the Tribunal was obliged to put country information to them for their comment was an indirect reference to those submissions. 18 This Court reviewed the appeal papers in preparation for the hearing. Upon observing the inconsistency between [11] and [17] of the Minister's written submissions on appeal, the Court retrieved from the electronic court file of the Federal Circuit Court the orders of the primary judge made on 3 September 2018, the Minister's supplementary written submissions dated 17 September 2018, and the appellants' written submissions dated 1 October 2018. My associate sent copies of the submissions to the parties by email dated 12 February 2020, and gave notice that at the hearing, the Court would invite the Minister to address it on where in the primary judge's reasons any consideration had been given to those submissions.

Consideration 19 Upon the hearing of the appeal, counsel for the Minister made submissions that were perspicuously fair and measured. Counsel accepted that the appellants did not receive a fair hearing in the Federal Circuit Court. In the primary judge's reasons for judgment, her Honour made no reference to the orders for written submissions of 3 September 2018, or to the circumstances in which those orders were made, or to the submissions filed pursuant to those orders. As I have mentioned above, this Court does not have a transcript of the hearing before the primary judge, and therefore the exact circumstances in which the issues the subject of those submissions were raised are not known. What is known is that the only submissions that were advanced on behalf of the appellants before the primary judge that had the benefit of preparation with the assistance of a legal adviser were not considered by the Court. Further, the primary judge's failure to consider the appellants' written submissions is not apparent on the face of the reasons. The failure was apparent only upon this Court having obtained a copy of the submissions from the Federal Circuit Court file. 20 I infer that the primary judge, in preparing her Honour's reasons, overlooked the orders for further submissions made at the hearing on 3 September 2018, overlooked the submissions themselves, and therefore did not give any consideration to them. 21 The failure of the Federal Circuit Court to give attention to considered written submissions made on behalf of the appellants relating to whether the Tribunal was obliged to give notice of country information, and whether the Tribunal had given attention to the claims raised by the appellants, is within at least the appellants' first ground of appeal to this Court. In evaluating that ground, I have had regard to the general principles that were stated in Jones v National Coal Board [1957] 2 QB 55 at 67 (Denning, Romer and Parker LJJ) - There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it. 22 This passage was cited with approval by the Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 (Mason, Wilson, Brennan, Deane and Dawson JJ). 23 In this case, the appellants did not receive a fair hearing because the primary judge failed to consider their written submissions. That failure directs attention to whether the Court should remit the matter to the Federal Circuit Court for rehearing. 24 While counsel for the Minister accepted that the Court could remit the matter for rehearing by the Federal Circuit Court, he submitted that the Court should not do so, because the submissions that the appellants had advanced to the Federal Circuit Court lacked substance, relying on Stead at 145. Counsel sought the opportunity to advance submissions directed to the merits of the appellants' case before the Federal Circuit Court on the ground that the appeal was by way of rehearing. Counsel submitted that the failure of the appellants to receive a fair hearing in the Federal Circuit Court could be cured on appeal, citing Twist v Randwick Municipal Council (1976) 136 CLR 105 at 116 (Mason J). Counsel submitted that the case below did not involve the assessment of the evidence of witnesses, and called in aid the objectives in s 37M of the Federal Court of Australia Act 1976 (Cth). 25 The Court raised with counsel for the Minister the fairness to the unrepresented appellants of embarking on a course by which the Minister would address the merits of the submissions made below when no formal notice had been given to the appellants that the Minister would seek to advance those arguments. No notice of contention had been filed, and the written submissions of the Minister on appeal addressed one, but not all, of the arguments that had been advanced on behalf of the appellants below. Further, as a product of the fact that the Minister was ordered by the Federal Circuit Court to file supplementary submissions first, the Minister has not ever responded in terms to several of the submissions advanced on behalf of the appellants. Counsel responded to these concerns by submitting: (1) that a notice of contention was not required because the materiality of the failure to give the appellants a fair hearing was for the appellants to demonstrate and the Minister's submissions would be responsive to the appellants' grounds of appeal; (2) that the Court could direct that further written submissions be filed, thereby giving the appellants written notice of the submissions and an opportunity to respond; and (3) that the Court could adjourn the further hearing of the appeal. 26 For their part, the appellants indicated through the interpreter that they would abide the determination of the Court on the question of what course the Court should take. 27 If this Court were to evaluate the appellants' submissions below for itself, it would involve the Court addressing for the first time a substantial component of the appellants' case that was not considered and determined by the Court below. That course is one about which the Court should be guarded, for the reasons identified by Perram J in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 at [14]. Perram J held that the reasons for judgment of the Federal Circuit Court in that case did not deal with one argument advanced by the appellant, and that its reasons for rejecting a second argument were not adequate. On appeal, the Minister had sought leave to file out of time a notice of contention to respond to the grounds of review that the Federal Court had not addressed, and for which inadequate reasons were given. Perram J refused leave. His Honour referred at [14] to s 476A of the Migration Act, and to the removal of the original jurisdiction of this Court in matters of this kind. His Honour continued - … Pt 8 of the Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny. 28 At [15], Perram J stated that the circumstances of the situation in AAM15 were unlikely to recur, and were quite extreme. However, as the catalogue of authorities listed by Flick J in SZULE v Minister for Immigration and Border Protection [2019] FCA 2136 at [47] demonstrates, the circumstances have recurred. At [48], Flick J stated - Expressed as a general proposition, this Court should reject an approach whereby it routinely on appeal undertakes for itself the task of resolving the grounds of review that were before a primary Judge and to provide on appeal the reasons as to the fate of those grounds. To do so "would erode the appellate nature of this Court's jurisdiction": AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [26] per Perram J. In AAM15, his Honour referred to the legislative structure being "thwarted": [2015] FCA 804 at [14], (2015) 231 FCR at 455. However "administratively convenient" it may be for this Court to "fill the gap" left unfulfilled by a primary Judge, this Court when exercising its appellate role should resist such a course because to do so would be inconsistent "with the processes of review as prescribed by the legislature": SZKLO v Minister for Immigration and Citizenship [2008] FCA 735 at [41], (2007) 102 ALD 115 at 123 per Flick J ("SZKLO"). 29 Nonetheless, the considerations relevant to whether the Court on appeal should consider for itself issues that have not been the subject of the primary judge's reasons pull in opposite directions. In SZULE, Flick J contrasted cases where a judge had made a genuine attempt to address issues, but had failed to provide sufficient reasons, with other cases where the inadequacy of the reasons was so manifest that questions arose as to whether the primary judge had even sought to engage with the arguments presented. At [51], Flick J stated in relation to the latter type of case - Such cases should be the exception. If the legislative scheme prescribed by Parliament is to be preserved, an appropriate order on appeal may be to remit the case in order to ensure that a hearing at first instance in fact takes place. 30 His Honour then continued at [52] - But in such cases the purity of the legislative scheme is in fact frequently sacrificed by this Court in order to ensure that justice is done as between the litigants. Considerations as to the proper administration of justice frequently dictate that an appeal should be dismissed if grounds of review are found by this Court on appeal to expose no error: e.g. CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 at [93], (2018) 265 FCR 572 at 599 per Collier, Markovic and Lee JJ. To remit these cases to the Circuit Court constituted by a different Judge would only be to endorse a consideration of the case by three or more Judges - one being the primary Judge who has expressed either very inadequate reasons or no reasons; the second being a Judge (or three Judges) of this Court hearing the appeal; the third being a different Judge of the Circuit Court hearing the proceeding upon remittal to that Court; and the fourth being, potentially, another Judge of this Court hearing a second appeal. Neither the party seeking review, nor the Minister, should be forced to follow such a torturous route in their quest for justice. 31 Subject to the above observations, Flick J adhered to the views that his Honour expressed in SZKLO v Minister for Immigration and Citizenship [2008] FCA 735; 247 ALR 582, which included the following at [42]-[43] - … Even if the Federal Magistrate in the present proceedings does ultimately reach the same conclusion, the legislature has entrusted the responsibility to review the tribunal's decision to the Federal Magistrate. This court performs an appellate function. The decision of the Federal Magistrate should not usually be pre-empted by too readily concluding on appeal that only one result was open to the Federal Magistrate. … [T]his court is heavily dependent upon the Federal Magistrates Court, particularly in the migration jurisdiction, and relies to a considerable extent upon the reasons for those decisions which are the subject of appeal. It is not considered that this court should be denied the significant benefit that it receives from the reasoned decisions of the Federal Magistrates Court. 32 It must be accepted that remittal of a matter for rehearing should not ordinarily occur if the underlying points in issue are shown on appeal to lack merit such that a rehearing would be futile: Stead at 145. Subject to this, the authorities show that there are no hard and fast rules as to when it would be appropriate for this Court on appeal to embark upon a consideration of arguments that the Court below, in error, had failed to consider. What order is appropriate will depend upon the circumstances of the individual case: SZULE at [43]. 33 I do not find it necessary to decide whether the Minister was required to file a notice of contention to support a submission to the Court that the appellants' written submissions below should be rejected on their merits. In similar circumstances in AAM15, the Minister appears to have considered that a notice of contention was necessary, because leave was sought to file a notice. In the special circumstances of this case, where the appellants are unrepresented, and having regard to the current state of the Minister's written submissions, if the Court were to determine the issues for itself, I would have required the Minister formally to give notice in writing of any submissions that he would seek to advance to meet the appellants' case below. However, taking all the circumstances into account, I have decided that it would not be appropriate to embark upon that course. To do so would have the practical consequence that the substance of the appellants' application to the Federal Circuit Court would be determined by a single judge of this Court for the first time with no right of appeal. Further, the first instance nature of the hearing would be emphasised by the fact that in order to do justice I would, as indicated, require the Minister to give the appellants written notice of the arguments that the Minister proposed to advance, I would give the appellants an opportunity to respond, and the hearing of the appeal would have to commence afresh.

Conclusion 34 The appeal will be allowed with costs. The matter will be remitted to the Federal Circuit Court for rehearing by another judge. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.