consideration
21 On 15 September 2015, the application initially before the primary judge was the application in a case in PEG142/2015, accepted for filing a week earlier, on 8 September. His Honour ultimately made orders in that matter and in SYG3004/2014 and in the applicant's other Perth proceeding. The precise path by which these matters arrived before his Honour is not entirely clear, but neither party made anything of this.
22 As will have been seen, the relevant parts of the applications in a case, which were dismissed on the first return date in the case of PEG142/2015, included relief by way of an interlocutory injunction restraining the Minister from returning the applicant to Christmas Island. It appears that SYG3004/2014 was not initially before his Honour and that the application in a case in that matter was listed for hearing two days later before another judge, but that his Honour took steps to enable him to deal with it himself that day.
23 Both in his applications in a case and at the hearing in the Federal Circuit Court, the applicant sought leave to amend his applications, and to file supplementary affidavits. He also applied for the issue of subpoenas for certain documents and for two officials to be subpoenaed to give evidence.
24 In our opinion the primary judge did not in substance consider the interlocutory injunction applications made by the applicant and the application for the issue of subpoenas. His Honour did not address at all the applications for leave to amend and to file supplementary material.
25 The hearing on 15 September was quite short: the transcript is in a little over 18 pages. About a third of the hearing was concerned with identifying the proceedings instituted by the applicant in the Federal Circuit Court. Just before the primary judge adjourned to make time-tabling inquiries, the applicant sought to draw his Honour's attention to the issues raised by his affidavit, which was apparently then before the Court. In particular, the applicant said:
But also if I can just say this, your Honour, that if you look at the affidavit in support of the first application in a case, there are issues that I've raised there which outline in that affidavit, which need to be attended to by the court in order for you to make a decision … on some of the orders I'm seeking: (1) a summonsed issued, or a subpoena and a summons issued, to have my case manager, the centre manager, the psychologist and the psychiatrist come to court to give evidence in regards to what they know about the traumatic and distressing [] and the torture they put me through in Christmas Island.
It is very important, according to the facts and in law, that those people come to give evidence, because they are part of what has occurred to me. … When I got out of detention from the judgment of the Full Court of the Federal Court on 25 March, I thought I was okay until I got put into hospital on that mental health … and detained in hospital.
26 The primary judge replied:
Yes. I understand what you're asking for. Whether or not those matters are relevant is something I will let you explain in a minute.
27 When the primary judge returned to court, his Honour informed the applicant that:
Mr Applicant, what I'm minded to do is to have these two proceedings in Perth transferred to the Sydney registry for the purpose of being heard in December concurrently with the proceedings that are already on foot in the Sydney registry and to make directions relating to each of those three matters so that they are ready for hearing in December. …. At the moment I'm not persuaded by anything you've said that the gathering of evidence is a function that this court should in any way engage in and it's not clear to me that any of the matters you've identified are relevant. In relation to the issue of jurisdictional error, this court is not sitting as a court making fresh findings of fact.
In relation to the issue of the [ITOA] assessment, again, this court is determining whether there has been a jurisdictional error or whether you're entitled to other declaratory relief in relation to the processes that have been pursued, but it's not an exercise where the court is making fresh findings about your welfare or your state of mind. So at the moment nothing you've said has persuaded me it's appropriate to grant any more relief of the kind you've identified other than transfer the matter and making directions for the hearing of the matter in Sydney.
28 The applicant responded, saying he did not understand what his Honour meant "in relation to the gathering of evidence", adding:
In questions of law, your Honour, you have to have - the court has to have the facts of the case … .
29 The applicant went on to say:
If you're going to dismiss the matter then you have to have the facts under the law to make that decision … The respondent hasn't provided any submission.
30 It appears that his Honour did not fully appreciate that the applicant was seeking to adduce evidence in support of his application for injunctive relief because his Honour observed shortly thereafter that the applicant was not precluded from putting on affidavit evidence "because of dismissing his application" (although the significance of this comment is not entirely clear and, as will be seen, his Honour in fact affirmed that he understood the applications that were before the Court).
31 The following exchange resulted from an attempt by counsel for the Minister, Mr Hannan, to clarify the applicant's position:
Mr Hannan: The only other point I should draw [to] your Honour's attention is in fairness to the applicant. The applicant is claiming in the application in a case interlocutory relief to which some of what is said might arguably be relevant in terms of not wanting to go to Christmas Island, etcetera. He has that application on before your Honour.
His Honour: I understand that.
32 Having affirmed his understanding, his Honour informed the applicant that it was "not appropriate for the court to gather evidence" and that "there were matters that are not relevant currently in your application … because the nature of this court's jurisdiction is one which it is engaged in determining particular questions which are jurisdictional questions relating to the [ITOA] assessment and/or the Tribunal decision." Believing that his Honour perceived that there was a lack of jurisdiction to deal with his applications in the case, the applicant requested him to transfer the matter to this Court, a request that was declined. His Honour said:
Mr Applicant, the court has jurisdiction in respect of your principal application and in relation to your [ITOA] application. Insofar as your application in a case is concerned it's not an independent source of jurisdiction; it's misconceived. I don't propose to transfer the application in a case.
The primary judge went on to make the orders challenged here and delivered the reasons to which we have referred.
33 His Honour did not address the applicant's request for leave to amend his application and to file supplementary affidavits, and, in our opinion, did not in substance address his applications for an interlocutory injunction. Assuming the applicant's affidavits were formally before the Federal Circuit Court, his Honour made no findings of fact as he would have been required to do if he had in substance dealt with the interlocutory injunction applications.
34 The transcript also makes it clear that the applicant was not given a reasonable opportunity to present submissions in support of any of the dismissed applications. The applications to amend and to file supplementary affidavits, and the request to issue a subpoena, were apparently made in aid of the applications for injunctive relief. These supporting applications were either not dealt with at all or, in the case of the request for a subpoena, the primary judge acted on the basis of a fundamental misconception (as explained below). The result was that the applicant was deprived of a reasonable opportunity not only to make these supporting applications but also to make his application for injunctive relief.
35 Insofar as the applications in a case for injunctive relief and associated applications were dealt with by the primary judge we discern a number of errors in the primary judge's reasoning. In our opinion, the dispositive reasoning was that because the detention of the applicant was lawful there was no basis on which he could obtain the interlocutory injunctive relief he sought. This was erroneous. There may be particular circumstances about the place of the proposed detention that would make it prima facie not "lawful", in the broadest sense, to detain a person in that place. Secondly, the primary judge did not take the applicant's evidence at its highest nor permit him to adduce further evidence as he sought to do. Thirdly, the primary judge proceeded on an incorrect basis in refusing to issue the subpoenas. That the case the applicant sought to make did not go to whether or not there was jurisdictional error in the decisions or conduct the subject of the three substantive applications did not mean that his applications in a case for injunctive relief should be dismissed. Fourthly, as noted, at no point did his Honour advert to the applicant's applications to amend his application, which amendments might have cured the procedural irregularity to which his Honour referred, namely, seeking final relief in applications in a case.
36 There can be no doubt that the primary judge was obliged to exercise his powers reasonably and to accord the applicant procedural fairness. His Honour was required to give the applicant a reasonable opportunity to present evidence and to make submissions in support of his applications. His Honour was also obliged to address and consider each of the applications that the applicant made to the Court. He could not act unreasonably by dismissing them without in substance addressing them. The reasons for this are explained in numerous cases, including in Shrestha v Migration Review Tribunal and Another [2015] FCAFC 87; 229 FCR 301 at [37]-[49] and in the cases there cited. The Federal Circuit Court, which is established under Ch III of the Australian Constitution, cannot validly be empowered to act other than in accordance with these central tenets of procedural fairness.
37 We accept that there was a clear denial of procedural fairness in this case because the applicant was not afforded a reasonable opportunity to make his applications, and the applications were not in substance addressed and considered before they were dismissed. This is such a clear case of denial of procedural fairness that it is unnecessary to encumber our reasons with a great deal of authority.
38 In this case, the fact that the applicant was unrepresented exacerbates the procedural unfairness that he encountered. The fact that a litigant is not represented may require a court to take steps to explain its processes and procedures to the litigant to ensure procedural fairness. This is well-recognised, as SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 makes clear. In the hearing on 15 September 2015, the primary judge made no effort to explain to the unrepresented applicant how he might properly make an application for an injunction under the Federal Circuit Court's rules. Nor did the primary judge explain the other procedures that the applicant might have chosen to utilise. His Honour might, for example, have drawn the applicant's attention to the provision for notices to produce. Bearing in mind that the applicant was unrepresented and that his own uncontested affidavit showed that the subject matter of his claim for injunctive relief was important to him, we consider that the judge's failure to explain the Court's processes and procedures was unfair to the applicant and involved an unreasonable exercise of power. Had the primary judge taken the time to consider the applications being made by the applicant and to explain the Court's processes and procedures, the outcome might well have been different.
39 As noted earlier, the Minister submitted to the effect that there was only one (adverse) answer to the applicant's application for injunctive relief given the various procedural, evidentiary and other matters to which the Minister directed us, especially in his written submissions. We would, however, be slow to reach this conclusion in the absence of any hearing, where the applicant had not been given the opportunity he sought to amend, to adduce further evidence and to subpoena witnesses. Speaking generally, proceedings, including interlocutory applications, are not to be dismissed on the first return date in circumstances where a party seeks to amend and to adduce evidence, particularly where that party is self-represented: see Shrestha v Migration Review Tribunal and Another cited above.
40 As indicated earlier, counsel for the Minister also raised in oral submissions but not in his written submissions an important issue as to the scope or content of the jurisdiction of the Federal Circuit Court in relation to allegations of negligence. The submission was that the Federal Circuit Court had jurisdiction only where negligence amounting to a jurisdictional error was involved. Counsel for the Minister emphasised Wednesbury unreasonableness but accepted, as we understood it, that other forms of jurisdictional error would suffice. Given the circumstances in which the issue arose, we do not consider it appropriate to rule on this submission. The Minister, if so advised, may raise it in the Federal Circuit Court. We would observe however that jurisdictional error is a matter of characterisation of the facts rather than a reason for refusing to permit the facts to be explored.
41 We reject the Minister's submission that the matter should not be remitted because the self-represented applicant did not characterise his claims as disclosing jurisdictional error, as the Minister argued they must to engage the jurisdiction of the Federal Circuit Court. It may be that the applicant should be given an opportunity to amend and supplement his evidence if this argument were accepted. If it be necessary to show jurisdictional error then the decision-making record should be available so as to show, for example, what considerations the decision-maker took into account or did not take into account.