Was Mr Kumar denied procedural fairness in the Federal Circuit Court?
35 In both Shrestha and SZWBH, the Full Court (Mansfield, Tracey and Mortimer JJ) held that the appellants had been denied procedural fairness by the Federal Circuit Court when their applications were summarily dismissed at the first court date. In both cases, the Full Court held that the FCC Rules expressly contemplate, and empower, a Federal Circuit Court judge to exercise the powers set out in r 44.12 at the first court date. That includes a power to dismiss an application if the judge is not satisfied that the applicant has raised an arguable case for the relief claimed.
36 The fact that such power exists, however, "says nothing about the legal constraints on its exercise": Shrestha at [65]; SZWBH at [40]. In particular, there is no basis to infer from the terms of Pt 44 of the FCC Rules "an intention to abrogate the Court's obligation to act fairly in considering, and exercising, the range of powers at its disposal under them": Shrestha at [52].
37 In Shrestha, the Court said the following in relation to the Federal Circuit Court's power to summarily dismiss a judicial review application (at [53]):
The pressure of high volume decision-making, such as that undertaken by the FCC in the migration jurisdiction, should be recognised. Essential tools in managing high volumes of cases include the show cause process in Pt 44 of the FCC Rules, and the power outside that process, in s 17A of the FCC Act, summarily to dismiss a judicial review application. The existence and utilisation of those processes do not obviate the need to consider the material before the Tribunal (rather than simply its reasons), nor to explain in plain terms to unrepresented applicants that they must identify to the Court why the Tribunal's decision was not made lawfully and by a fair process. Insisting to an unrepresented applicant that she or he identify a "jurisdictional error" is a pointless, and unfair, exercise. Further, the processes in s 17A and Pt 44 do not remove the obligation to give parties, whether represented or unrepresented, some reasonable time to regularise their materials and present their arguments.
38 In SZWBH, the Court said the following (at [56]-[57]) in relation to the dismissal of a judicial review application under r 44.11(a) of the FCC Rules at the first court date:
Although one must take care to allow for exceptional or unusual circumstances where the power in r 44.11(a) of the Rules may appropriately be exercised, it is difficult to conceive of circumstances where a court would be justified in summarily dismissing a judicial review proceeding at a first court date, of its own motion and without prior notice, where both parties have appeared.
At the very least, notice in advance of some kind should be given. The notice contemplated by the Rules for a respondent to seek summary dismissal (see r 6.19(a) and the requirement for three days' notice) gives some indication. In circumstances where an applicant is unrepresented, to deal with a matter on short notice like that may still be procedurally unfair, especially if there are communication and language difficulties, but that will be circumstance-dependent. Notice is fundamental to a fair process in a court: in an adversarial system, it allows parties time to prepare, to meet what is to be put against them, to understand and consider the significance of what is proposed to occur, and to be in a position to present evidence and argument if they so wish. In a practical sense, it is the giving of reasonable notice which facilitates and protects the exercise of these entitlements by a litigant.
39 The circumstances of Mr Kumar's case are, however, materially different from the circumstances in both Shrestha and SZWBH.
40 First, in both Shrestha and SZWBH, the appellants were effectively given no notice that the court might, at the first court date, require them to advance arguments for why their applications were reasonably arguable or that the court might dismiss their applications if not satisfied that their applications raised arguable cases for the relief claimed. In Mr Kumar's case, however, the Minister specifically put Mr Kumar on notice, in both his filed response and in the letter under cover of which the response was served, that the Minister would or might apply to have Mr Kumar's application summarily dismissed at the first court date.
41 As the decisions in both Shrestha and SZWBH show, the question of notice is critical to a consideration of procedural fairness in circumstances where the Federal Circuit Court summarily dismisses an application on the first court date. Other decisions of this Court also highlight the importance of the applicant being given prior notice that their application might be summarily dismissed at the first court date. It appears to have been a critical consideration in the decision of Flick J in AAV15 v Minister for Immigration and Border Protection [2015] FCA 700. In that case, Flick J quashed a decision of the Federal Circuit Court to summarily dismiss an application in circumstances where the dismissal occurred without prior notice to the parties and in circumstances where the Minister did not seek summary dismissal.
42 It also appears to have been an important consideration in MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1075, where Black CJ granted leave to appeal from a dismissal under r 44.12 at the first court date. In doing so, the Chief Justice observed (at [14]):
I should also add that if those advising the Minister have in contemplation the possible operation of r 44.12 at the first court date, it would seem prudent to give a prior warning to the applicant.
43 On the other hand, in Singh v Minister for Immigration and Border Protection [2014] FCA 1209, Nicholas J dismissed an application for leave to appeal a dismissal under r 44.12 of the FCC Rules on the basis that the Minister's solicitors had put the applicant on notice of a potential application to summarily dismiss the application at the first court date. Importantly, the notice was provided in a letter which was in relevantly identical terms to the letter that the Minister sent to Mr Kumar in this case.
44 A second distinguishing feature of the circumstances in Shrestha and SZWBH is that in both those cases the Federal Circuit Court moved on its own motion to summarily dismiss the appellants' applications and where the Minister either did not actively support summary dismissal, or counselled against it. In Shrestha, the Minister and the appellant had agreed on the making of appropriate procedural directions at the first court date to enable the appellant to file evidence in support of his application. In SZWBH, the Minister went so far as to submit that summary dismissal was not appropriate given that the Minister had not yet prepared or filed a court book containing the material that was before the Tribunal. In neither case did the Minister submit that summary dismissal was appropriate. In Mr Kumar's case, the Minister moved to have Mr Kumar's application summarily dismissed as had been foreshadowed in the filed response.
45 Third, in both Shrestha and SZWBH, the appellants had said enough to identify an argument or arguments that, if made out, would establish jurisdictional error by the Tribunal. In both cases, it could not be concluded that the grounds raised or purportedly raised by the appellants were not reasonably arguable, at least at the first court date. In Shrestha, the appellant needed to tender the transcript of the hearing in the Tribunal to make out his case. The transcript was not available at the time of the first court date. In the case of SZWBH, the Minister submitted that it could not be concluded that the grounds relied on by the appellant were unarguable in the absence of any consideration of the material that was before the Tribunal. The difficulty was that as at the first court date, no court book had been prepared by the Minister and therefore the court did not know what was before the Tribunal.
46 In this case, however, the grounds in Mr Kumar's application to the Federal Circuit Court did not suggest that it might be necessary for him to lead any evidence, or that it was necessary to consider the material that was before the Tribunal to assess those grounds. Nor did Mr Kumar suggest, at the first court date, that he could or would file any evidence in support of his application. Nor did he say anything that might suggest that the court could not determine whether his case was reasonably arguable in the absence of the consideration of any further material.
47 Finally, putting aside the contents of Mr Kumar's application filed in the Federal Circuit Court and his apparent inability to articulate, at the first court date, any ground or argument that might support a finding of jurisdictional error on the part of the Tribunal, it is difficult, if not impossible, to identify any argument that might be available to Mr Kumar. In light of the decisions in Kirk and Braganza, Mr Kumar would appear to have no case that the Tribunal erred in concluding that it did not have jurisdiction to entertain his review application, given that he had not paid the prescribed fee. Mr Kumar's draft notice of appeal does not raise any ground that suggests that he has an arguable case of jurisdictional error on the part of the Tribunal. Nor was Mr Kumar able to articulate any arguable case in support of his application for leave to appeal.
48 It is true that Mr Kumar appeared unrepresented at the first court date. It is true also that, so far as it is able to be gleaned from the primary judge's reasons, the primary judge did not explain in plain and understandable terms that it was necessary for Mr Kumar to identify to the court why the Tribunal's decision was not made lawfully and by a fair process. As explained in Shrestha, it is not helpful for a judge to insist to an unrepresented applicant that he or she identify a jurisdictional error. Many lawyers, and dare it be said, some judges, on occasion and in some circumstances, have difficulty grasping the concept of jurisdictional error. It is difficult to imagine that any unrepresented applicant would be able to understand what he or she would have to do to identify a jurisdictional error. It is not difficult to see why the primary judge's invitation to Mr Kumar was met by the response from Mr Kumar that he did not understand the law and therefore could not say anything.
49 Nevertheless, in all the circumstances, and for the reasons already given, it cannot be concluded that Mr Kumar was denied procedural fairness by the primary judge.
50 Given that the circumstances of the summary dismissal raise at least an arguable case of denial of procedural fairness in light of Shrestha and SZWBH, and given that the question was fully explored in the Minister's submissions, the appropriate course would be to grant leave to appeal, but dismiss the appeal.