Minister for Immigration, Citizenship and Multicultural Affairs v FJT17

1. The appeal be allowed.
2. Orders 2 to 5 of the Orders of the Federal Circuit and Family Court of Australia (Division 2) dated 17 February 2022 in proceeding MLG 2692 of 2017 are set aside and in lieu thereof it be ordered that the amended application for review filed on 20 January 2022 be dismissed.
3. There be no order as to costs of the appeal.
4. The first respondent be granted a certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the first respondent in respect of the costs incurred by the first respondent in relation to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHEELAHAN J: 1 This is an appeal from orders of a judge of the Federal Circuit and Family Court of Australia (Division 2) by which that Court in the exercise of its jurisdiction under s 476 of the Migration Act 1958 (Cth) ordered that a writ of certiorari issue quashing a decision of the Administrative Appeals Tribunal made on 14 November 2017, and that a writ of mandamus issue directing the Tribunal to determine the applicant's application for review of a decision of a delegate of the Minister according to law. 2 By the Minister's amended notice of appeal, a number of grounds are advanced. The first ground is that the primary judge denied the Minister procedural fairness by not giving the Minister a reasonable opportunity to present arguments. That ground should be considered first before the other grounds of appeal: Concrete Pty Ltd v Paramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [117] (Kirby and Crennan JJ) and [172] (Callinan J). 3 The first respondent accepts that the appeal must be allowed on the ground that the primary judge denied the Minister procedural fairness in the way claimed. As a consequence, the first respondent consents to orders that the appeal be allowed. The second respondent, the Tribunal, has filed a submitting notice. The question before the Court therefore narrows to whether arguable error has been demonstrated to the extent necessary to warrant the exercise of appellate jurisdiction to set aside the primary judge's decision: Bradken Ltd v Norcast S.ár.L [2013] FCAFC 123; 219 FCR 101; Telstra Corporation Ltd v Minister [2008] FCAFC 7; 166 FCR 64; CQX18 v Minister for Home Affairs [2019] FCAFC 142; 372 ALR 137 at [9] (Allsop CJ, Perry and Gleeson JJ). 4 The appeal arises in the following circumstances. The hearing below was conducted before the primary judge by video link on Microsoft Teams. Prior to the hearing, the first respondent and the Minister had filed outlines of submissions. At the hearing, the first respondent was represented by counsel, and the Minister was represented by a solicitor advocate. There is unchallenged affidavit evidence that towards the conclusion of the argument advanced by counsel for the first respondent, the primary judge asked the Minister's solicitor some questions concerning the question of materiality, which the solicitor addressed. The first respondent's counsel then indicated that he had concluded his oral submissions. The primary judge then asked the solicitor if he relied upon his written submissions to which the solicitor responded in the affirmative. His Honour then announced that he would reserve his decision. The evidence is borne out by the transcript of the hearing that is now before this Court - MR ALEKSOV: Your Honour, I've finished what I wanted to say, unless your Honour has any questions of me. HIS HONOUR: No. Thank you, Mr Aleksov. Do you rely on your written submissions, Mr Taylor? MR TAYLOR: Yes, your Honour. HIS HONOUR: Yes. The court will reserve its decision. Thank you for your assistance. Adjourn the court. 5 The evidence is that the solicitor had intended to make oral submissions in order to respond to those of counsel for the first respondent by taking the primary judge through the statement of reasons of the Administrative Appeals Tribunal whose decision was challenged. The solicitor had no time or opportunity to communicate that intention to the primary judge because the judge terminated the hearing. There is no claim that the solicitor for the Minister waived his right to address the primary judge, and such a claim would not be consistent with the evidence: cf, Thai v Commissioner of Taxation (1994) 53 FCR 252 at 273 (Lockhart, Beaumont and Whitlam JJ). On the morning following the hearing, the primary judge's chambers emailed the parties giving notice that judgment would be given at 12.30 pm that day. The primary judge published reasons for judgment dated 17 February 2022, and the final orders of the primary judge made on 17 February 2022 record that the parties' solicitors appeared by telephone. 6 In the above circumstances, I am satisfied that there was a denial of procedural fairness to the Minister, who by reason of the way the hearing of the proceeding before the primary judge was quickly terminated was denied the opportunity to make submissions about questions of mixed fact and law involving the content and significance of the Tribunal's reasons. The Minister was thereby deprived of the possibility of a successful outcome. As a result, there was a miscarriage of justice in the conduct of the hearing: see, Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, citing Jones v National Coal Board [1957] 2 QB 55 at 67. The appeal on this ground should be allowed. 7 The parties have provided to the Court a note stating that since the orders were made by the primary judge, the first respondent has been granted a permanent visa and has withdrawn the review application that was remitted to the Tribunal. In those circumstances, the parties are agreed that the matter should not be remitted for rehearing, which would be the usual order upon finding a denial of procedural fairness. Instead, the parties submit, and I accept, that it is appropriate that the proceedings be brought to an end and that orders should be made by this Court dismissing the application for judicial review without adjudication on the merits of that application. 8 The first respondent seeks a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). Section 6(1) confers on the Court a discretion to give a costs certificate where an appeal succeeds on a question of law. I am satisfied that this appeal has succeeded on a question of law, being the denial of procedural fairness and consequential miscarriage of justice that occurred: see Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; 131 FCR 28 at [8] (Gray ACJ and North J); Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [202], noting that both cases concerned appeals from the Administrative Appeals Tribunal on a question of law where a denial of procedural fairness by the Tribunal might amount to a jurisdictional error. In this appeal, the decision-maker is a court where the scope for jurisdictional error is limited: see, Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [67]; Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [55]-[57] (Gordon, Edelman, Steward and Gleeson JJ). Putting jurisdictional error to one side, it has been held that a denial of procedural fairness by an inferior court in failing to afford counsel an opportunity to address the court will amount to an error of law: Escobar v Spindleri (1986) 7 NSWLR 51 at 57C (Kirby P), at 59A (Glass JA), and 60G (Samuels JA, dissenting), cited in Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186 (Handley JA), and Edwards v Giudice [1999] FCA 1836; 94 FCR 561at [81] (Finkelstein J, dissenting). See also: R v Wandsworth Justices; Ex parte Read [1942] 1 KB 281 at 283-284 (Viscount Caldecote CJ); Dick v Piller [1943] 1 KB 497 at 499 (Scott LJ), followed in Priddle v Fisher [1968] 1 WLR 1478. And in this Court, there is at least one instance where a certificate was given under s 6 of the Federal Proceedings (Costs) Act in an appeal from orders of the Federal Circuit Court that succeeded on the ground that there had been a denial of procedural fairness at the trial: Printing Industry Association of Australia v Jurkin [2018] FCA 1001 (O'Callaghan J). 9 For the foregoing reasons, I am satisfied that this appeal has succeeded on a question of law. I am also satisfied that it is appropriate that a costs certificate be granted to the first respondent in relation to the costs of the appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.