What happened
The first respondent, a citizen of Pakistan, had visited Australia several times between 2009 and 2012 on successive Business Short Stay (subclass UC-456) visas. In 2014 he applied for a Protection (Class XA) visa after his Student (subclass TU-572) visa application was refused. A delegate of the Minister refused the protection visa in 2015. The Administrative Appeals Tribunal affirmed that decision in 2016. The first respondent, who does not speak English and was unrepresented, sought judicial review in the Federal Circuit Court of Australia. He obtained the assistance of an interpreter. After a one-hour hearing the primary judge dismissed the application and delivered ex tempore reasons for judgment. The orders were translated for the first respondent but the oral reasons were not. The first respondent filed a notice of appeal to the Federal Court of Australia without the benefit of any written version of the reasons. Written reasons were not published until 18 July 2019, more than a month after the notice of appeal was filed and well outside the time for appealing.
Before the Federal Court the first respondent remained unrepresented. Mortimer J reviewed the Tribunal and Federal Circuit Court reasons more broadly than the formal grounds of appeal in order to detect any obvious jurisdictional error. Her Honour found no error in either the Tribunal's decision or the primary judge's published reasons. Nevertheless Mortimer J allowed the appeal, set aside orders 3 to 5 made by the Federal Circuit Court, and remitted the matter to be reheard by a different judge. The sole basis for that relief was the conclusion that the primary judge's failure to have the ex tempore reasons translated amounted to a denial of procedural fairness. Mortimer J considered that the first respondent had been left without any intelligible explanation of why he had lost and had been denied a fair opportunity to decide whether to appeal or to obtain assistance in formulating grounds.
The Minister appealed to the High Court. The Court (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) unanimously allowed the appeal. Steward J delivered the principal judgment, with which the other members agreed. The High Court held that the Federal Court had adopted an unduly expansive view of procedural fairness, that any unfairness arising from the absence of a translated version of the ex tempore reasons could and should have been addressed by procedural steps available on the appeal, and that setting aside the Federal Circuit Court's orders went beyond what was necessary to afford practical justice. The High Court set aside the Federal Court's orders and, in their place, ordered that the appeal to the Federal Court be dismissed.
Why the court decided this way
The High Court's reasoning begins from a clear delineation of the temporal and substantive limits of procedural fairness. Steward J observed at [35] that "the final instance of any right or entitlement of either party arising from the primary judge's obligation to afford procedural fairness occurred at the time the parties made their concluding submissions". Once the hearing is over, procedural fairness has no further role in respect of the matters decided. The duty to give reasons is undoubtedly an incident of the exercise of judicial power (Wainohu v New South Wales (2011) 243 CLR 181 at 213-215 [54]-[58]), but that duty is not itself a product of the obligation to accord procedural fairness ([23], [25], [32]).
The Court accepted that, as a matter of "general fairness", the first respondent ought to have received an intelligible version of the reasons sooner. However, that moral or practical desirability does not translate into a legal obligation whose breach vitiates the judgment. The concept of procedural fairness pressed by the first respondent and accepted by Mortimer J was held to exceed the range of matters with which that doctrine is concerned ([35]).
Central to the disposition was the principle of practical injustice. Relief for breach of procedural fairness is granted only where the breach deprives a party of the possibility of a successful outcome (Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 342-343 [60]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 [37]). The failure to translate the ex tempore reasons could not have affected the first respondent's prospects before the Federal Circuit Court; the decision had already been made. Any prejudice was therefore confined to the conduct of the appeal. Yet the first respondent had filed his notice of appeal on time, received the published reasons months before the Federal Court hearing, made no attempt to obtain a transcript of the ex tempore reasons, never sought to amend his grounds, and never asserted that any particular point had been lost by reason of the timing of the written reasons. In those circumstances no practical injustice was shown.
The High Court further held that the Federal Court itself had available procedural mechanisms to cure any difficulty. It could have adjourned the hearing to enable a transcript to be obtained or invited the first respondent to amend his grounds once the written reasons were to hand and, if necessary, granted an adjournment for that purpose ([38]). Either course would have supplied the practical justice required. Setting aside the Federal Circuit Court's orders and remitting the matter for a complete rehearing went beyond what was necessary.
A discrete but important strand of reasoning concerned the status of the published written reasons. The Court adopted the principle stated in Bromley v Bromley [1965] P 111 that an appellate court looks to the reasons that bear the stamp of the judge's approval. In the absence of cogent evidence that the published reasons materially deviated from the ex tempore reasons, the published reasons must be taken as the authentic record of the court's judgment ([30]-[33]). The first respondent led no such evidence. Mortimer J's observation that there was "no way" the Federal Court could compare the two versions was limited to the material actually before her Honour; it was not a finding that the first respondent could not himself have obtained the transcript. The premise of the notice of contention that the ex tempore reasons were the only "operative reasons" was therefore rejected.
Finally, the High Court noted that remittal would have been inutile in any event. Mortimer J had already determined that the Tribunal's decision was free of jurisdictional error. A judge on remittal would be bound by that conclusion or, if not, the first respondent would be seeking to re-litigate the same grounds, raising questions of finality and abuse of process.
Before and after state of the law
Before AAM17 the law on procedural fairness in the delivery of reasons was unsettled in the Federal Circuit Court migration context. Decisions such as CQX18 v Minister for Home Affairs (2019) 372 ALR 137 had expressed concern about the practice of delivering untranslated ex tempore reasons and then publishing written reasons only after an appeal was filed. Some Federal Court judges had treated delayed or untranslated reasons as engaging the obligation of procedural fairness and justifying remittal (see the authorities reviewed at [12] and [14] of Mortimer J's reasons). There was also uncertainty about the status of ex tempore versus published reasons and the extent to which an appellate court could or should examine transcripts of oral reasons.
The High Court has now authoritatively confined procedural fairness to the hearing process. The duty to give reasons remains an aspect of judicial power but breach of that duty, or delay in its performance, does not automatically vitiate the orders made. Practical injustice must be demonstrated and, where the complaint concerns the fairness of an appeal, the appellate court is expected to use its own procedural powers to cure the difficulty rather than remit for a rehearing that may have no utility.
After AAM17, Federal Circuit Court judges may continue to deliver ex tempore reasons in migration cases even to unrepresented non-English-speaking litigants, provided the orders are pronounced and, where possible, translated. Publication of written reasons may occur later. Litigants and their advisers are on notice that they must take positive steps to obtain transcripts or seek leave to amend grounds if they wish to rely on any discrepancy. Appellate courts are directed to consider adjournment or amendment before resorting to the drastic step of setting aside orders and remitting.
The decision reinforces the statutory exhortation in s 42 of the Federal Circuit Court of Australia Act 1999 (Cth) to proceed without undue formality and to avoid protracting proceedings. It also confirms that the published reasons certified by the judge's associate are the authoritative record unless cogent evidence, preferably from a person who heard the ex tempore delivery, demonstrates material alteration.
Key passages with plain-English translation
Paragraph [35]: "Underlying the Federal Court's decision, and the first respondent's submissions in this Court, was a conception of procedural fairness that exceeds the range of matters with which that concept is concerned."
Plain English: The Federal Court and the visa applicant used too broad a definition of procedural fairness. The idea only covers how the hearing is run up to the point when everyone has had their final say. It does not stretch to how or when the judge later explains the decision.
Paragraph [32]: "Thereafter, the trial having finished, procedural fairness had no role to play in respect of the matters the subject of the primary judge's decision."
Plain English: Once the hearing ends and the judge has everything needed to decide, the rules of procedural fairness are finished for that decision. They do not keep applying to the giving of reasons.
Paragraph [30], quoting Bromley v Bromley: "What we must look at is that which bears the stamp of the judge's approval, and on that must stand or fall the success of the appeal."
Plain English: An appeal court looks at the written reasons the judge has checked and approved. Those are the official reasons. You cannot go behind them just because an earlier oral version existed, unless you have strong proof that the judge completely changed the substance.
Paragraph [38]: "Rather than setting aside the decision of the primary judge, in the circumstances here, Mortimer J could have: (1) adjourned the hearing of the appeal so that the transcript of the ex tempore reasons could be obtained; or (2) invited the first respondent to amend his appeal grounds to address the contents of the published reasons..."
Plain English: Instead of wiping out the first decision and sending the whole case back, the Federal Court judge should simply have paused the appeal, let the man get the transcript or update his appeal papers, and then continued. That would have been enough to be fair.
Paragraph [41]: "It follows that the first respondent was not deprived of the opportunity to formulate his argument on appeal because of the fact that the primary judge's ex tempore reasons were not translated, nor was he denied the opportunity to investigate any difference in substance between those reasons and the published reasons."
Plain English: The visa applicant had the chance to get the transcript and fix his appeal but did not use it. Therefore he cannot complain that he was unfairly stopped from running his appeal properly.
What fact patterns trigger this precedent
AAM17 will be triggered whenever a Federal Circuit Court migration matter involves an unrepresented, non-English-speaking applicant, an ex tempore judgment, untranslated oral reasons, and later publication of written reasons after a notice of appeal has been filed. The key factual integers are:
- timely filing of a notice of appeal despite the absence of written reasons;
- subsequent receipt of the written reasons well before the appeal hearing;
- failure by the appellant to seek a transcript, to apply for an extension of time, or to seek leave to amend grounds;
- absence of any evidence or contention that the published reasons materially differ in substance from the ex tempore reasons;
- an appellate court that has itself found no jurisdictional error in the Tribunal decision or in the published primary reasons.
The precedent will also apply, with necessary adaptation, to any statutory court without inherent powers where a complaint is made about the timing or intelligibility of reasons rather than about the conduct of the hearing itself. It is not limited to migration cases; the principles stated at [35]-[36] are of general application to the relationship between procedural fairness, the duty to give reasons, and appellate remedies.
The decision will not be engaged where the appellant positively demonstrates, by cogent evidence, a material discrepancy between ex tempore and published reasons that affects the outcome, or where the appellate court is unable, even with the benefit of a transcript, to discern the true basis of the primary decision. Nor will it apply where the complaint is that no reasons at all were given, as distinct from reasons that were given orally but not immediately translated.
How later courts have treated it
Although only recently decided, AAM17 has already been cited approvingly in several Federal Court migration appeals. In cases such as those involving delayed publication of reasons, judges have relied on Steward J's analysis to hold that any prejudice can be cured by granting leave to amend grounds or by adjourning the hearing rather than remitting the matter. The distinction between procedural fairness in the hearing and general fairness in the provision of reasons has been treated as authoritative.
Appellate courts have also applied the Bromley principle endorsed at [30]-[33] when litigants have sought to tender transcripts of ex tempore reasons in an attempt to demonstrate inconsistency. Absent cogent evidence of material alteration, the published reasons are treated as definitive. The emphasis on practical injustice and the availability of procedural remedies on appeal has reduced the number of successful remittals based solely on late delivery of reasons.
Lower courts have noted the reinforcement of the statutory duty under s 42 of the Federal Circuit Court of Australia Act 1999 (Cth) to avoid undue formality and protraction. The decision is routinely cited in directions hearings where self-represented applicants seek adjournments to obtain transcripts of ex tempore judgments.
No court has yet sought to distinguish AAM17 on its facts; its principles are regarded as settling the law in this area. Academic and practitioner commentary has described the decision as a pragmatic correction of an overly technical approach that had developed in some single-judge appellate decisions.
Still-open questions
Several questions remain unresolved after AAM17. First, the Court expressly disclaimed any general rule about whether an unrepresented non-English-speaking litigant is always entitled to translated oral or written reasons ([36]). The precise content of the obligation (if any) in circumstances where a judge reserves judgment and later publishes written reasons only remains open.
Second, the boundary between permissible revision of expression and impermissible change of substance in ex tempore reasons is not exhaustively defined. While the Court endorsed the proposition that judges may improve expression provided substance is unchanged, the point at which a revision crosses that line and becomes amenable to appellate intervention on the basis of procedural unfairness or jurisdictional error is not spelt out.
Third, the decision leaves open what constitutes "cogent evidence" sufficient to displace the presumption that published reasons are authentic. The examples given (transcript, notes taken by counsel, evidence from someone present) are illustrative rather than exhaustive. Whether an unrepresented litigant without legal assistance can ever discharge that onus without an adjournment remains to be tested.
Fourth, the interaction between AAM17 and the statutory obligation in s 74(1) of the Federal Circuit Court of Australia Act 1999 (Cth) to reduce orders to writing "as soon as practicable" is not fully explored. Whether systematic delay in producing written reasons could, in a particular case, amount to a constructive failure to exercise jurisdiction or a breach of the requirement to proceed without undue formality is unanswered.
Finally, the High Court did not address the position where the published reasons contain an error that is not present in the ex tempore reasons, or vice versa, and the appellant has been denied the opportunity to identify that discrepancy through no fault of his or her own. The precise remedial response in such a narrow class of case is left for future decision.
These open questions mean that while AAM17 provides a clear framework, practitioners must still advise clients to take proactive steps to secure transcripts and consider amendment of grounds wherever ex tempore reasons are delivered to non-English speakers. The decision has brought greater certainty but has not closed every avenue of argument in this persistently troublesome area of migration procedure.