An additional issue
32 Given his role as a model litigant, the Minister brought to the Court's attention the recent decision in AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951 (AAM17). Having done so, the Minister submitted that this case was not affected by AAM17 as it could be distinguished on the facts.
33 In AAM17 the appellant raised two grounds of appeal, one of which was that the primary judge "did not adopt a fair process in making the decision". The appeal was allowed and orders made setting aside the orders made by the Federal Circuit Court in the following circumstances.
34 At the hearing of the appeal, after raising questions about the process undertaken by the Federal Circuit Court in hearing the application for judicial review, at [20] Mortimer J found that:
(a) The appellant relied on an interpreter for his participation in the hearing before the Federal Circuit Court, and he was - as I have noted - not represented by a lawyer.
(b) The Federal Circuit Court delivered contemporaneous reasons for the orders it pronounced.
(c) The Federal Circuit Court hearing lasted for one hour, including the delivery of contemporaneous reasons.
(d) The orders were interpreted to the appellant. At the hearing the appellant called the orders the "formal letter", but I am satisfied this is what he meant.
(e) The appellant did not receive a copy of the transcript of the contemporaneous reasons.
(f) The appellant had to prepare and file his notice of appeal without having received any written version of the Federal Circuit Court's reasons for the orders it made.
(g) The Federal Circuit Court's reasons for judgment, as they were published, were not published until 18 July 2019, more than a month after the appellant filed his notice of appeal in this Court, and well outside the period in which a notice of appeal was required to be filed.
(h) There is no way that the Court can compare what was said by the Federal Circuit Court in its contemporaneous reasons with what were the published reasons of the Federal Circuit Court for its orders, including the extent of any similarity between the two sets of reasons.
35 At [23] her Honour found that she was satisfied that the Federal Circuit Court's oral and contemporaneous reasons were not interpreted to the appellant at the time of their delivery. Her Honour went on to explain that this meant that although the appellant had a copy of the orders which were made by the court on that day "he had no explanation at all, which was intelligible to him, of how or why the Court had made those orders" and that he "did not receive any explanation until he received the formal written reasons of the Court". At [31]-[32] Mortimer J said:
31 In any event, a practice of producing formal reasons after a notice of appeal is filed in this Court could only be justified if a person in the position of the appellant had reasonable and timely access to some form of the Federal Circuit Court's initial reasons for its orders, and that form was intelligible to the person. That could occur in a number of ways: by giving the person a copy of the transcript of the contemporaneous reasons, or having those reasons interpreted in a way that would allow the person to take notes so as to be able to understand, and seek advice or assistance about, the Federal Circuit Court's reasons, or informing the person that she or he could request a copy of the Federal Circuit Court's reasons and also staying the effect of the Federal Circuit Court's orders pending the delivery of any requested reasons to that person. Whatever method might be adopted (and these examples may not be exhaustive), the key point is that the person affected adversely by the orders has reasonable and timely access to an intelligible explanation of why the orders were made, within a period that does not prejudice her or his statutory right to appeal, taking into account the obvious fact in the migration jurisdiction of the Federal Circuit Court that many self-represented applicants will need access to some form of assistance before exercising their right to appeal.
32 The present appellant asked for and had access to an interpreter for the Federal Circuit Court hearing. The Federal Circuit Court's provision of an interpreter recognised, properly, that he was entitled to participate in and understand the proceedings in which he had a vital interest, and much at stake, in a language in which he could have full and proper comprehension of what was being said, and what may have been explained to him.
36 At [37] Mortimer J expressed the opinion that it was "an unfair procedure, and a denial of procedural fairness … for orders to be pronounced at a final hearing of a judicial review application with reasons delivered orally and contemporaneously to a self-represented litigant who is using an interpreter, without those reasons being interpreted, and without provision of any version of written reasons to that litigant as soon as practicable after the orders are pronounced". Her Honour found that such a denial was not cured by the production of formal written reasons one month or more after the expiration of the appeal period and after the filing of the notice of appeal. At [41] her Honour said that it was the combination of circumstances in the case before her which caused her to conclude that the process adopted by the Federal Circuit Court in that case and the making of final orders in the circumstances described involved a denial of procedural fairness to the appellant. Her Honour continued:
… The orders were made without giving the Court's reasons for decision to the appellant in a form he was able to understand, or able to seek assistance to have explained to him. If the reasons had been interpreted, that may have been sufficient. If formal reasons were produced in a few days, then even if the reasons were not interpreted, that may have been sufficient. If the appellant had been given access to the transcript of the oral and contemporaneous reasons, that may have been enough. So too if the orders had been stayed pending the provision of written reasons, even without any interpretation on the day of the hearing. It is the fact that none of these alternatives occurred, and there was no interpretation at the time of the Court's reasons, which involves a denial of procedural fairness. The failure to adopt any of these methods interfered with the way in which the appellant could exercise his right of appeal, and denied him the opportunity to seek any assistance about possible grounds of appeal, or whether indeed he should appeal at all. It also denied him access to any explanation, intelligible to him or capable of being explained to him by anyone whose assistance he might seek, of why the Court made the orders it did. The failure to adopt any of these methods subverted the exercise of judicial power itself, the giving of reasons being a defining characteristic. There was no real exercise of judicial power in these circumstances: …
(citations omitted.)
37 In the course of her reasons Mortimer J referred to the decision of a Full Court of this Court (Allsop CJ, Perry and Gleeson JJ) in CQX18 v Minister for Home Affairs (2019) 372 ALR 137; [2019] FCAFC 142 (CQX18). In that case the appellant had sought judicial review of a decision of the Federal Circuit Court on the ground that the Federal Circuit Court had acted outside jurisdiction. The Full Court noted at [3] that the principle issue raised in that application was that, having dismissed the application for judicial review of the decision of the Immigration Assessment Authority and given oral reasons at the time, the Federal Circuit Court did not produce a written version of those reasons for a considerable period after the expiry of the time within which to appeal the decision. Their Honours noted that the primary judge dismissed the application on the ground that, even assuming that the delay in producing written reasons could constitute a jurisdictional error (which the primary judge doubted), relief would be declined in the exercise of discretion given the availability of appellate remedies to the appellant which he had not (yet) pursued, referring to CQX18 v Minister for Home Affairs [2019] FCA 386 (CQX18 Federal Court) at [27].
38 The matter came before the Full Court on an appeal from the decision in CQX18 Federal Court (referred to as the first appeal). A copy of the transcript of the hearing before the Federal Circuit Court was included in the appeal book, even though it had not been included in the material before the primary judge. At the hearing of the first appeal the Full Court raised concerns with the Minister arising from that transcript concerning whether the Federal Circuit Court judge had failed to accord procedural fairness to the appellant.
39 Ultimately, the Minister indicated that, while he did not accept that the primary judge had erred in the manner in which he disposed of the application for judicial review before him, he accepted that the Federal Circuit Court hearing had failed to proceed in accordance with the requirements of procedural fairness and proposed that orders be made disposing of the matter. Ultimately the parties proposed consent orders, which were made, dismissing the first appeal. As to the Federal Circuit Court proceeding, the Minister proposed that it be dealt with by the appellant bringing an application for an extension of time within which to appeal from the decision of the Federal Circuit Court on the ground of a failure to accord procedural fairness at the hearing and that the Minister would then consent to an extension of time and to the appeal against the Federal Circuit Court decision (referred to as the second appeal). The parties proposed consent orders giving effect to that proposal.
40 At [10] their Honours expressed the view that they were satisfied that the proposed consent orders in the second appeal should be made on the basis that the Federal Circuit Court judge failed to afford the appellant procedural fairness at the hearing in the exercise of Commonwealth judicial power in all of the circumstances. Their Honours set out the relevant circumstances as follows:
(1) The appellant did not have legal representation in the Federal Circuit Court.
(2) He appeared at the hearing of the application for judicial review via video-link from immigration detention without an interpreter present. The interpreter was located in the courtroom in Sydney.
(3) The transcript of the hearing before the primary judge demonstrates difficulties with the video-link transmission of the hearing.
(4) The appellant raised the question of unfairness at the hearing as he had to make his submissions "all on my own" (i.e. from a remote location).
(5) There was real doubt as to whether the appellant received the Minister's written submissions or the court book. While the Minister's counsel offered to assist the Court about service of the court book on the appellant, the primary judge considered it sufficient to have explained the contents of the court book to the appellant before admitting it into evidence. As such, no steps were taken to clarify one way or the other whether these had been served.
(6) The appellant explained to the primary judge in any event that he could not read the Minister's submissions without the assistance of a translator. The Minister's counsel acknowledged in his submissions before the primary judge that it was not evident that his written submissions had been translated and that "it may be that the applicant, given the need for interpreting, may not have had the opportunity to consider those submissions fully."
(7) The appellant explained that there were inaccuracies in the translation of his affidavit which he wanted to correct and he sought a short adjournment of half an hour to an hour to do so with the assistance of the interpreter. However, his application for an adjournment was not dealt with by the primary judge and his affidavit was taken as read without the appellant being afforded the opportunity to correct it by evidence.
(original emphasis.)
41 At [11] their Honours then expressed the following additional concerns:
(1) the primary judge delivered an ex tempore judgment which was not translated by reason of an instruction by the primary judge to the interpreter not to do so in circumstances where there was no apparent effort thereafter by the primary judge to have his reasons reduced to writing timeously until they were requested;
(2) no orders were made having the legal or practical effect of deferring the commencement of the period within which an appeal must be instituted (see CQX18 v Minister for Home Affairs [2019] FCA 386 at [14] (Perram J); Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26] (the Court)); and
(3) written reasons were not published until 75 days after delivery of the ex tempore judgment and 54 days after the expiry of the time within which an appeal could be instituted as of right.
42 In this case the published reasons were not made available to the applicant until after the expiration of the appeal period. The applicant says in his draft notice of appeal that he would seek leave to add further grounds upon the primary judge's written reasons becoming available. However, notwithstanding that, I accept the Minister's submissions that this case can be distinguished from AAM17 in a number of ways.
43 First, the applicant does not raise as a proposed ground of appeal that he was denied procedural fairness by the procedure that was adopted in the Federal Circuit Court.
44 Secondly, unlike the appellant in AAM17, the applicant was not assisted by an interpreter at the hearing in the Federal Circuit Court, before the Tribunal or before me. In AAM17, the appellant's need for an interpreter throughout the process and the provision of that service to him, combined with the fact that the primary judge's ex tempore reasons were not interpreted at the time they were delivered nor a transcript of them provided, were central to the finding of an unfair procedure. Those facts are simply not present here. While the primary judge gave ex tempore reasons there is nothing to suggest that the applicant did not understand the reason why the primary judge refused his application for judicial review and made the orders that he did.
45 The applicant submitted that although he understood English he did not understand legal terms. That may be so. However, the fact remains that the applicant did not seek the assistance of an interpreter at any stage of the process and clearly considered himself to have sufficient command of English. It was not apparent that the applicant misunderstood what had occurred before the primary judge. It could not be said in this case that the applicant received no explanation for why the orders had been made dismissing his judicial review application before the published reasons were provided.
46 In my opinion those matters are sufficient for me to conclude that AAM17 has no application to the present case.
47 This case can also be distinguished from the circumstances the subject of the second appeal in CQX18. In this case the applicant appeared in person before the primary judge, there is no apparent issue that he did not receive the Minister's submissions or the court book, that he could not read or understand the Minister's submissions or that he required the assistance of an interpreter to understand those submissions or to clarify his own evidence. As noted above, the applicant appeared before the Tribunal, the primary judge and before me without the assistance of an interpreter.
48 The only common feature between the conduct of the proceeding in the Federal Circuit Court in this matter and in CQX18 was the fact that the court's written reasons were not published until after the expiry of the time within which an appeal could be instituted as of right. While that was a matter about which the Full Court expressed some concern, it did not form part of the basis on which the Court was satisfied that the primary judge in that matter had failed to afford procedural fairness to the appellant at the hearing in the exercise of Commonwealth judicial power.
49 The Minister also took me to the decision in SZWDH v Minister for Immigration and Border Protection [2015] FCA 1382 (SZWDH). That case also concerned an application for an extension of time to appeal. At [11] White J set out the proposed grounds of appeal included in the applicant's draft notice of appeal, which included as ground 3 that "[f]urther grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed". At [12] his Honour observed:
Given that the published reasons of the Circuit Court became available only on 2 September 2015, the inclusion of the statement in the third of these grounds is understandable. However, the applicant has not provided any further proposed grounds of appeal, despite the published reasons of the Circuit Court having been available at the time of hearing for some two months.
50 I accept the Minister's submission that the facts in this case are the same as those which were before the Court in SZWDH and that White J's observations apply equally here, although perhaps with more force given that, at the time the applicant in this case filed his EoT Application, he had legal representation.
51 In light of the matters set out above, the issue properly raised by the Minister does not cause me to alter my opinion that the proposed grounds of appeal have no merit.