FEDERAL COURT OF AUSTRALIA

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68

ORDERS

THE COURT ORDERS THAT:

1.    By consent, the applicant have leave to file and rely upon an amended application dated 26 April 2016 for relief under s 39B of the Judiciary Act 1903 (Cth).

2.    The orders dated 14 May 2015 of the Federal Circuit Court of Australia be set aside.

3.    The first respondent pay the applicant’s costs of the proceedings below, as agreed or assessed.

4.    The first respondent pay the applicant’s costs in this Court of the amended application dated 26 April 2016 for relief under s 39B of the Judiciary Act 1903 (Cth) on and from 26 April 2016, as agreed or assessed.

5.    The application dated 16 April 2015 under s 476 of the Migration Act 1958 (Cth) be remitted to the Federal Circuit Court of Australia to be heard and determined according to law by a judge other than the primary judge.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

BY CONSENT THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal dated 26 April 2016 be dismissed.

2.    The applicant pay the first respondent’s costs of the application described in paragraph 1, as agreed or assessed.

REASONS FOR JUDGMENT

THE COURT:

1.    Introduction

1    This is another in a series of cases which have come before the Court which raise the issue of the procedural fairness obligations of the Federal Circuit Court of Australia (the FCCA) in considering and determining whether to dismiss summarily an application for judicial review in that Court’s migration jurisdiction. Although the relevant legal principles are relatively well settled, their application to the individual circumstances of particular cases can present difficulties. This may reflect the myriad of circumstances in which the issue may arise. As will emerge, the relevant principles require close attention to be given not only to the legislative framework within which the issue arises, but also to the individual circumstances of the particular case. As such, determining whether there has been a breach of procedural fairness is unlikely in any case to be resolved satisfactorily by an approach which seeks simply to contrast the particular circumstances of one case with another.

2    In this case, the primary judge summarily dismissed an application for judicial review of a decision of the then Refugee Review Tribunal (the Tribunal) on a show cause hearing on the first Court date. In all of the circumstances of this case, we consider that the FCCA denied the unrepresented applicant procedural fairness in so doing. It follows that the appeal must be allowed on this ground.

2.    Summary of background facts

3    The applicant is an Iranian citizen who arrived in Australia on 12 August 2012. His application for a protection visa was rejected by the Minister’s delegate on 12 December 2013. On 23 December 2013, the applicant sought a review of that decision in the Tribunal. In brief, the applicant’s claims were as follows:

(a)    He and his family had had problems with the Iranian government because a cousin of the applicant’s father had worked for the Iranian intelligence service during the time of the Shah and the cousin was hanged by the government.

(b)    The applicant had been attacked by the Basij in 2009 when he was caught up in a demonstration in Tehran and had spent about ten days in hospital as a result.

(c)    In February 2011 he and his brother opened a coffee shop in Tehran. He formed a relationship with a woman called Ms X who visited the coffee shop. Their relationship became intimate. He thought that Ms X was divorced and had no children but when he dropped her off near her home in July 2011 he was chased by her husband, whom he believed to be a high ranking officer in Sepah. The husband apparently took down the details of the applicant’s car registration number. He said that Ms X’s husband threatened to kill him and also his family members and Ms X told him that her husband was looking for him. He said that although he changed his mobile telephone number in August 2011 he was subsequently assaulted by Ms X’s husband, who also threatened to kill him. He said that he believed that Ms X’s husband was also responsible for members of the Amaken and Basij coming to the coffee shop to intimidate and harass him because he had had an affair with Ms X. He said that he and his brother closed the coffee shop in October 2011, and they began to sell alcohol around then. The applicant said that the alcohol was purchased by his brother and he (i.e. the applicant) was the co-ordinator of the business. He said that two friends worked with them in taking and delivering orders for alcohol. He said that the two friends were arrested in April 2012 and that the Sepah and Basij came to his family house and asked for him and his brother but they managed to escape through the roof. He said he hid at his sister’s home for about a week. He claimed that he was told that one of the friends who had been arrested had informed the authorities that he worked for the applicant and his brother. At this time he and his brother decided to leave Iran. He further claimed that his family had informed him that two summonses had been issued for him and his brother in August 2012, whereby he was required to attend Court on 4 September 2012. He claimed that he feared that he would be arrested, detained and killed by the Iranian authorities because he had an affair with the wife of a Sepah officer and had sold alcohol.

4    Shortly before the applicant’s hearing in the Tribunal on 24 February 2015, in a written submission his migration agent claimed for the first time that the applicant had converted to Christianity in Australia. The applicant gave evidence of his religious activities at the Liberty Baptist Church at North Rocks in Sydney and claimed to have been baptised on 7 December 2014. He provided testimonials from a Pastor Piper from that Church which were to the effect that the applicant appeared to be a very sincere, genuine and serious Christian. Pastor Piper also gave evidence at the Tribunal hearing and confirmed that he believed that the applicant was a serious and dedicated Christian. The applicant’s migration agent provided the Tribunal with a considerable amount of country information relating to Iran, including information on the Basij.

5    The Tribunal rejected the applicant’s claims, basically because of its adverse findings concerning the applicant’s credibility. The Tribunal found that the applicant’s claim that he had been assaulted by the Basij in 2009 or 2010 was fabricated. With respect to the applicant’s claims concerning the affair he said he had had with Ms X, the Tribunal noted that at the Tribunal hearing the applicant had stated that he and Ms X “did not have an intimate relationship”. This, together with country information relied upon by the Tribunal concerning male and female fraternisation, formed the basis for the Tribunal’s conclusion that the applicant’s evidence concerning his relationship with Ms X and his interactions with her husband were “implausible, inconsistent and unconvincing”. Part of the inconsistency was said to relate to the applicant having claimed on various occasions that he and Ms X had had an intimate relationship, whereas during the hearing the Tribunal recorded that he had stated that they did not have an intimate relationship. As to the applicant’s claims regarding the sale of alcohol, the Tribunal noted various inconsistencies in his evidence relating to the details of the alcohol-selling business and also expressed concerns relating to the authenticity of the summonses for him to appear in Court. The Tribunal found that the applicant was not a witness of truth and had fabricated his claims in relation to the sale of alcohol.

6    As to the applicant’s claims regarding his conversion to Christianity, the Tribunal found that the applicant was not a credible witness. It accepted that he had attended Church and Bible study classes in Australia and was baptised on 7 December 2014, but it did not accept that he was a genuine convert to Christianity. It concluded that the applicant’s claims regarding his conversion to Christianity were for the purpose of strengthening his claims to be a refugee and, therefore, had to be disregarded having regard to s 91R(3) of the Migration Act 1958 (Cth) (the Migration Act).

7    The Tribunal also explained why it rejected other claims by the applicant, including his claim that he would be persecuted as a failed asylum seeker from a western country if he were returned to Iran.

3.    Proceedings in the Federal Circuit Court of Australia (the FCCA)

3.1    Relevant provisions of the Federal Circuit Court Rules

8    Before outlining relevant events in the proceedings below, it is convenient to describe some relevant provisions which apply to proceedings commenced in the FCCA under s 476 of the Migration Act.

9    Part 44 of the Federal Circuit Court of Australia Rules 2001 (Cth) (the FCCA Rules) deals specifically with proceedings under the Migration Act. It is provided there that Chs 1 and 3 of the FCCA Rules apply, so far as they are relevant and are not inconsistent with Pt 44, to a proceeding under Pt 44. Accordingly, r 10.03 is engaged. It relevantly provides that, at the first Court date, the FCCA or a Registrar may fix a date for final hearing.

10    Rule 44.05 deals with what is described as an “application for order to show cause”. It provides:

44.05    Application for order to show cause

(1)    An application for a remedy to be granted in exercise of the Court's jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.

(2)    An application must be supported by an affidavit including:

(a)    a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and

(b)    any document or other evidence the applicant seeks to rely on; and

(c)    if an extension of time is sought--the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.

11    Under r 44.06, a respondent who intends to oppose an application must file and serve a response, including each ground on which the respondent opposes the application and details of each ground.

12    Rules 44.11 to 44.13 make specific provision for the first Court date, the hearing of an application for an order to show cause and a final hearing following a show cause hearing. Those provisions are respectively as follows:

44.11    First court date

Without limiting rule 10.01, at the first court date for an application for an order to show cause, the Court or a Registrar may give orders or directions for any of the following:

(a)    an immediate hearing under rule 44.12;

(b)    a future listing for a hearing under rule 44.12;

(c)    dispensing with a hearing under rule 44.12 and listing the matter for final hearing on the grounds set out in the application;

(d)    a stay or interim order;

(e)    an extension of time for the application;

(f)     an amendment of the application;

(g)    the provision of particulars, or further and better particulars, of a ground in an application or response;

(h)    the filing of further affidavits by the applicant;

(i)    the filing by a respondent or other person of a relevant document or other evidence;

(j)    the filing of affidavits by a respondent.

44.12    Show cause hearing

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed--adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

44.13    Relief and grounds

(1)    At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.

Note:    Rule 7.01 provides for the amendment of applications.

(2)    At a final hearing following a hearing under rule 44.12, the applicant is confined to the grounds specified in the Court's order to show cause.

3.2    The application for judicial review in the Court below

13    It is now convenient to summarise the events which occurred after the applicant lodged electronically in the FCCA on 16 April 2015 his application under s 476 of the Migration Act.

14    The judicial review application, which contained a statement that it was prepared by the applicant personally, related to the Tribunal’s decision dated 13 March 2015 (the Tribunal’s decision). It raised the following two grounds (without alteration):

1.    1st and 2nd respondent made jurisdictional error in apply relevant immigration laws regarding protection and asylum in Australia while making decision on my application for protection.

2.    1st and 2nd respondent rejected my protection claim very unfairly in the absence of any adverse evidence and therefore breached procedural fairness.

15    The applicant stated on his application that he required an interpreter in the Farsi language.

16    The application for judicial review was accompanied by an affidavit by the applicant which simply annexed a copy of the Tribunal’s statement of decision and reasons. Notwithstanding the requirement in r 44.05(2)(b) of the FCCA Rules (see [10] above) that the application must be supported by an affidavit which included any document or other evidence the applicant sought to rely on, no such document or evidence was included in the applicant’s affidavit.

17    Shortly before he filed his judicial review application, the applicant had applied on or about 10 April 2015 for legal aid from Legal Aid NSW. The evidence before us did not disclose what material was provided in support of that application. On or about 15 April 2015, the applicant was advised that his application for legal aid had been refused on the ground that the proceeding for which legal aid was sought did not have reasonable prospects of success in the view of Legal Aid NSW.

3.3    Steps taken by the Minister in the proceedings before the first Court date

18    On 28 April 2015, the Minister filed in the FCCA his Response to the judicial review application. That response included the following statements:

The first respondent opposes all orders sought by the application on the basis that no arguable case for the relief sought is raised. The first respondent contends that the application ought to be summarily dismissed at the first Court date.

19    A copy of the Response was served on the applicant under cover of a letter dated 29 April 2015. The letter included the following information which was expressed to be for “unrepresented applicants”:

The Response opposes your application, and we may ask the Court to hold an immediate show cause hearing under Rule 44.12 of the Federal Circuit Court Rules 2001 to address the matters raised in the Response. At the show cause hearing we will ask the Court to dismiss your application. The Court may require you to provide reasons to explain why your application should not be dismissed at that time. These might include properly particularised grounds of judicial review, reasons why an extension of time should be granted, or evidence that your application is not out of time.

You may wish to seek legal advice on this issue and in relation to your application generally.

20    On 12 May 2015 (i.e. two days before the first Court date), the Minister filed a copy of the Court Book and a copy was sent by express post to the applicant on that day. The Minister accepted that, most probably, the applicant received a copy of the Court Book on 13 May 2015 (i.e. the day before the first Court date). The Court Book totalled 318 pages and included such materials as the applicant’s original visa application and various statutory declarations and other information provided by him to the Department in support of his application; relevant documents relating to the hearing of his application by the Minister’s delegate which resulted in the application being refused; the applicant’s review application and various supporting materials provided by him to the Tribunal in considering his application to review the delegate’s decision, as well as copies of various materials which were provided by the applicant’s migration agent to the Tribunal after the Tribunal hearing. The Court Book also contained a copy of the Tribunal’s statement of decision and reasons. Virtually all of the 318 pages of the Court Book were in English.

3.4    The hearing before the Court below on 14 May 2015

21    On the morning of 14 May 2015, the matter came before the primary judge. Rather than summarise what then occurred, it is convenient to set out the entirety of the transcript of that brief hearing (without alteration):

HIS HONOUR:    Mr Elliott, you appear for the first respondent.

MR E. ELLIOTT:    I do. Thank you, your Honour.

HIS HONOUR:    And are you the applicant known by the pseudonym, AMF15?

AMF15:    Yes.

THE INTERPRETER:    Yes, I am.

HIS HONOUR:    Mr Interpreter, I will just wait a moment before I have you sworn just to see what course the matter is taking. Mr Elliott, is this an appropriate matter to fix for hearing?

MR ELLIOTT:    Your Honour, could I inquire if the court books made it to your Honour?

HIS HONOUR:    No. I’ve received matter number 11 and matter number 14 and matter number 19, which I’ve read.

MR ELLIOTT:    I understand a hard copy was filed yesterday and has also been electronically lodged. I would be happy to hand mine up. But my application would be that the matter is dealt with on a show cause basis today.

HIS HONOUR:    Yes. I will stand the matter down to 12 o’clock.

MR ELLIOTT:    Thank you.

HIS HONOUR:    And I will consider that application then. The matter is stood down till 12 o’clock today and the first respondent is moving to have the matter dealt with legally under a show cause procedure which is to determine whether or not there is any arguable jurisdictional error on the fact of your application. Yes. Call the next matter please.

ADJOURNED                            [10.39 am]

RESUMED                            [12.16 pm]

HIS HONOUR:    Please take a seat. Just give me a moment, Mr Elliott. Mr Applicant, do you need an interpreter.

AMF15:    Yes.

HIS HONOUR:    I will have the interpreter sworn, please.

INTERPRETER, AFFIRMED TO INTERPRET

HIS HONOUR:    Thank you, Mr Interpreter, please take a seat.

THE INTERPRETER:    Yes, Mr Elliott, do you move for an immediate show cause?

MR ELLIOTT:    Your Honour, I do under rule 44.11 to hold the hearing under rule 44.12.

HIS HONOUR:    Yes. Can I hear the grounds of the application?

MR ELLIOTT:    Yes. Would your Honour like my hard copy of the court book or ---

HIS HONOUR:    I’m looking for – I think I have, in fact, got the court book electronically.

MR ELLIOTT:    We have eLodged one and I was able to download it from the portal. Your Honour ---

HIS HONOUR:    Yes. Just give me a moment while I see if – it’s opening up. Yes, I have got the court book. If you do have a hard copy it may be quicker for me, Mr Elliott.

MR ELLIOTT:    Young Honour, I have mine. I’m happy to lend it. it’s unmarked.

HIS HONOUR:    I’m just – at the moment, with 267 page court book ---

MR ELLIOTT:    Yes.

HIS HONOUR:    --- my electronic skills are going to be slower than using a court book but I will – you have seen the court book, Mr Applicant?

THE INTERPRETER:    Yes, your Honour.

HIS HONOUR:    I will have marked as an exhibit on the immediate show cause application the court book as exhibit A.

EXHIBIT #A ELECTRONIC VERSION OF COURT BOOK

MR ELLIOTT:    Thank you.

HIS HONOUR:    That’s the electronic version marked as exhibit A.

MR ELLIOTT:    Yes.

HIS HONOUR:    Yes.

MR ELLIOTT:    Your Honour, the background to this matter is that the applicant had applied for a protection visa on 24 December 2012. That application was refused by the delegate on 12 December 2013 and the delegate’s reasons appear at pages 127 to 146 of the court book. The applicant applied for a review of that decision on 23 December 2013 and the tribunal made its decision affirming the delegate’s decision on 13 March 2015 and that decision begins at page 297 of the court book; in fact if I can take your Honour to that.

HIS HONOUR:    Yes.

MR ELLIOTT:    Your Honour, will see at pages – sorry, paragraphs 11 to 16 of the decision, the tribunal relevantly sets out the information it has had regard to.

HIS HONOUR:    Yes.

MR ELLIOTT:    And then proceeds to deal with the applicant’s claims. At paragraphs 21 to 25 it considers a claim by the applicant that his father’s second cousin was executed by Iranian authorities and at paragraph 26 makes its finding in respect of that claim.

HIS HONOUR:    Yes.

MR ELLIOTT:    In paragraphs 27 to 28, deals with the applicant’s claim that he had problems with the Bashirs in 2009 and 2010 and makes a finding at paragraph 29 including expressing serious concerns about the applicant’s credibility.

HIS HONOUR:    Yes.

MR ELLIOTT:    Between paragraphs 30 to 37, the tribunal deals with the claim related to problems with the applicant’s girl-friend’s husband and ---

HIS HONOUR:    Well, 30 to 34, I think.

MR ELLIOTT:    Sorry, 30 to 37 is my note and makes findings from ---

HIS HONOUR:    35 to 37 are country information but, yes.

MR ELLIOTT:    I think that country information is related to that claim, however, to do with the morality of dating women out of wedlock.

HIS HONOUR:    I follow, yes. And the finding is then made, yes.

MR ELLIOTT:    Yes. That evidence was found to be implausible, inconsistent and unconvincing and that’s at 38.

HIS HONOUR:    Yes.

MR ELLIOTT:    It dealt with a claim that the applicant had illegally sold alcohol from his café at paragraphs 48 to 60.

HIS HONOUR:    Yes.

MR ELLIOTT:    And found that claim fabricated at 61.

HIS HONOUR:    Yes.

MR ELLIOTT:    Between 62 and 67, the tribunal dealt with the applicant’s claim to have converted to Christianity and importantly, at paragraph 79, found that it was not otherwise strengthening his claims and disregarded that evidence pursuant to section 91R(3). It considered the applicant as a failed asylum seeker between paragraphs 81 and 89 and made it’s findings at paragraph 93. That, I say, your Honour dealt with complementary protection between paragraphs 98 and 110. If I can just take your Honour to paragraph 105 your Honour will see, importantly, the tribunal has realised it can’t take into account 91R(3) rejection for complimentary protection and has considered the applicant’s conduct in Australia.

HIS HONOUR:    Yes.

MR ELLIOTT:    If I can take your Honour then to the grounds of the applicant’s application. Ground 1 suggests or alleges that the tribunal applied the relevant law correctly. The tribunal, at paragraphs 7 to 10, sets out the relevant law and we say correctly and that this ground would otherwise seek impermissible merits review. Ground 2 seems to make two allegations. The first is a breach of procedural fairness and the second is that the tribunal made erroneous findings in the absence of adverse evidence.

    In respect to the first interpretation, the applicant clearly had a hearing, the opportunity to make submissions and give evidence on the dispositive issues and we can’t identify any information which attracts the operation of section 424A. In relation to the allegation that the tribunal made findings in the absence of adverse evidence, well, it said that the tribunal needs to reach a certain state of satisfaction before granting a visa and it’s well open to it to make findings in the absence of rebuttal evidence and a citation for that, your Honour, is Salvatore & Minister for Immigration and Ethnic Affairs [1994] 34 ALD 347 at 348. I have that case, if your Honour wishes. Unless I can assist the court further I would submit that there is no reasonably arguable grounds in this matter and it’s appropriate to be dismissed.

HIS HONOUR:    Could you show the decision to the applicant?

MR ELLIOTT:    I will, your Honour.

HIS HONOUR:    And could you hand me up a copy, please.

MR ELLIOTT:    Your Honour, I have to apologise. I asked for that to be put in the file ---

HIS HONOUR:    That’s all right.

MR ELLIOTT:    --- but it’s not there.

HIS HONOUR:    That’s all right. I understand the principle.

MR ELLIOTT:    Would your Honour like the citation again?

HIS HONOUR:    No. I’ve got it.

MR ELLIOTT:    Thank you.

HIS HONOUR:    Mr Applicant, the first respondent has moved to have your application dismissed on the grounds that there is no jurisdictional error revealed by the application. What do you wish to say as to why there’s a jurisdictional error by the tribunal?

THE INTERPRETER:    Well, your Honour, my life was in danger but I couldn’t clarify my claims to my lawyer and I’m not legally represented here. I requested legal representative from Legal Aid but they were too late to respond to my request. This is a very difficult situation for me. I’m very stressed and my life is in danger back home.

HIS HONOUR:    This is not a court of appeal. This is not a court that can review the merits. This court is confined in its jurisdiction to an excess of jurisdiction by the tribunal.

THE INTERPRETER:    One legal error, your Honour, is that the member decided that I would be safe to return back home because there had been precedents; there had been a similar case to me. That person had returned and nothing had happened to him but I also converted from my religion and my life would be in danger.

HIS HONOUR:    Yes, I understand what you’ve said. Is there anything else you wish to say?

THE INTERPRETER:    The member said, at the RRT interview, said that he did not – she did not have time for my legal representative to make any submissions at the hearing because the interpreter didn’t have time to stay. He had been booked in advance for another job; he had to leave. The member said, “Send me the submissions in writing”.

HIS HONOUR:    Well, you did send in a post hearing submission on 2 March, didn’t you?

THE INTERPRETER:    Yes, that’s right.

HIS HONOUR:    Yes. Is there anything else you wish to put?

THE INTERPRETER:    No, your Honour. Because my life, as I said, will be in danger back home. I would just- wanted to have a fresh look into – into my case.

HIS HONOUR:    Yes. I don’t have jurisdiction to do that. My jurisdiction is confined to what is called a jurisdictional error that is something that the tribunal has exceeded its authority or has failed to comply with the duties of procedural fairness or the statutory regime. I have no power to review the merits of the decision. Nothing you have said identifies a jurisdictional error. Is there anything else you wish to put?

THE INTERPRETER:    Well, as I said, my life would be in danger because I have converted from my religion and that’s one of the areas that the law has ignored to look into.

HIS HONOUR:    No, Mr Applicant, the tribunal didn’t accept you on that. I don’t have jurisdiction to revisit the facts. Is there anything else you wish to say?

THE INTERPRETER:    My life will be in danger and I feel that they’ve haven’t applied the right rules and law to me.

HIS HONOUR:    Yes, I understand what you’ve said. Thank you. Please be seated.

JUDGMENT DELIVERED

HIS HONOUR:    The application is dismissed under rule 44.12. Yes, Mr Elliott.

MR ELLIOTT:    Your Honour, there’s an application for costs. It’s fixed in the amount of $2900.

HIS HONOUR:    2000?

MR ELLIOTT:    900. Can I just say this. That does exceed the scale amount for a proceeding concluded at the first court date but it is less than the scale amount for an item entitled as a proceeding concluded at or before the hearing under rule 44.12 or other interlocutory hearing.

HIS HONOUR:    Yes, thank you. Mr Elliott. Mr Applicant, is there any reason why you shouldn’t be ordered to pay the costs of the first respondent? Mr Applicant, is there any reason why you shouldn’t be ordered to pay the costs of the first respondent fixed in the amount of $2900?

THE INTERPRETER:    I’m receiving government benefits your Honour, and I can’t afford to pay that; I’m not working.

HIS HONOUR:    Yes. That’s not a proper reason for me not making the order, I understand your position though. I order the applicant to pay the first respondent’s costs, fixed in the amount of $2900.

MR ELLIOTT:    If it pleases the court.

HIS HONOUR:    Thank you, Mr Elliott.

MR ELLIOTT:    Thank you, your Honour.

HIS HONOUR:    The court will adjourn.

MATTER ADJOURED at 12.41 pm INDEFINITELY

22    As is evident from the transcript, the primary judge summarily dismissed the judicial review application under r 44.12(1)(a) of the FCCA Rules and his Honour delivered ex tempore reasons. The reasons, which totalled 8 paragraphs, may be summarised as follows.

23    After briefly summarising the background to the matter, the primary judge made reference to the Minister having moved for an immediate show cause hearing under r 44.12. His Honour then summarised the Minister’s contentions as to why the two grounds in the application under s 476 of the Migration Act did not identify any arguable jurisdictional error. Without any elaboration, his Honour accepted the Minister’s contentions in respect of both grounds of review.

24    The primary judge stated in [7] that the Tribunal had “carefully set out the relevant law and took into account the Ministerial Direction”, as well as having “carefully set out the applicant’s claims of evidence and materially made adverse findings”. His Honour then set out verbatim twenty paragraphs from the Tribunal’s statement of decision and reasons.

25    The primary judge concluded at [8] that he was “clearly satisfied that the application fails to disclose any arguable jurisdictional error and that this is an appropriate case to dismiss under r 44.12”.

3    Proceedings in this Court

26    On 28 October 2015, the applicant lodged electronically an originating application under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act). The Chief Justice directed that the matter be heard by a Full Court. On 26 April 2016, the applicant lodged a proposed amended originating application under the Judiciary Act, as well as an application for extension of time and leave to appeal the primary judge’s orders and decision. The latter application was “withdrawn” by the applicant shortly before the hearing. The application should formally be dismissed. After hearing from the parties, the Court also indicated that it would order, by consent, that the applicant pay the Minister’s costs of that application.

27    The Minister did not oppose the applicant being granted leave to amend his judicial review application.

28    The grounds raised in the amended judicial review application (which were drafted by Mr Jay Williams of counsel and who also appeared for the applicant) may be summarised as follows.

29    First, the applicant claimed that the primary judge denied him procedural fairness by denying him “a fair hearing, the right to legal representation or equality of arms”. The claimed rights to a fair hearing and legal representation were particularised. It is convenient to set out the ten particulars relating to the claimed denial of a fair hearing (without alteration):

d)    First, the first respondent failed to afford the applicant his right to legal representation and the principle of equality of arms.

e)    Second, the third respondent failed to uphold the applicant’s right to legal representation or the failed to order a stay until it was in place and the principle of equality of arms.

f)    Third, the third respondent denied the applicant a standard timetable. As a result, the applicant had just 28 days from the date of his application on 16 April 2016, until the final hearing, 14 May 2015, to prepare his case.

g)    Fourth, the first respondent failed to serve the Court Book on the applicant before hearing.

h)    Fifth, the third respondent gave the applicant just two days to examine the court book, which was filed on 12 May 2015, with the matter finally determined on 15 May 2015.

i)    Sixth, the third respondent denied the applicant an opportunity to amend his application per se, or in light of the Court Book.

j)    Seventh, the first or third respondent denied the applicant reasonable notice that the matter would be finally determined at the first court date.

k)    Eighth, the third respondent failed to properly assist the applicant by using complex and confusing legal language, nor did the primary judge adequately explain the requisite legal principles.

l)    Ninth, the third respondent dismissed the application on the first court date, extemporaneously and did not demonstrate that his Honour gave the matter proper, genuine or realistic consideration.

m)    In light of the foregoing, the applicant suffered prejudice, his case was disadvantaged and he was denied a fair hearing.

30    As to the claimed right to legal representation, the applicant asserted in the amended originating application that this right derived from one or other of:

(a)    the Constitution;

(b)    the common law of Australia; or

(c)    customary international law, which has been adopted or incorporated into the common law of Australia.

31    In the alternative, in respect to the claimed right to legal representation, the applicant claimed that the primary judge erred in failing to stay or adjourn the hearing until he was afforded legal representation.

32    Ground 2 of the amended application related to what was described as “the imposition of religious observance in violation of limb two of s 116 of the Constitution”.

33    Ground 3 of the amended application related to what was described as the “prohibition of the applicant’s free exercise of religion in violation of limb three of s 116 of the Constitution”.

34    Ground 4 related to what was described as the “violation of the free exercise of thought, conscience, religion or belief in violation of the principles of customary international law”.

35    The applicant provided notices under s 78B of the Judiciary Act to the various Attorneys-General of the States and Territories. The Court was informed by Mr Williams that no Attorney-General had indicated an intention to appear in the proceeding at this stage.

36    The written and oral submissions advanced by the parties are adequately summarised in the section below.

4    Consideration

4.1    The duty to ensure a fair trial in cases where a litigant is unrepresented

37    All judges have an overriding duty to ensure a fair trial for all parties who are involved in a proceeding (Dietrich v R [1992] HCA 57; 177 CLR 292 (Dietrich)). This duty is fundamental both to the administration of justice in the individual case and to the maintenance of public confidence in the judicial process more generally.

38    The discharge of this duty may involve different considerations and difficulties where one or more of the litigants is unrepresented, as the Full Court recently acknowledged in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 (SZRUR). In SZRUR, the issue was whether procedural fairness was denied by the FCCA to an unrepresented asylum seeker with no English language ability and no knowledge of the Australian legal system. The asylum seeker made an unsworn statement from the bar table claiming to be the victim of third party fraud in proceedings before the Tribunal. The primary judge did not inform the unrepresented asylum seeker about the need for sworn evidence or explain the kinds of issues he needed to address to make his allegation of fraud. The application for judicial review was dismissed by the FCCA without inviting the asylum seeker to give evidence under oath.

39    Justice Robertson (with whom Allsop CJ and Mortimer J agreed) cited with approval the principles and considerations identified by the New South Wales Court of Appeal in Hamod v New South Wales [2011] NSWCA 375 (Hamod) concerning the Courts’ duty to unrepresented litigants. These matters are to be found in the following extracts from Hamod:

Courts’ duty to unrepresented litigants

309    Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:

A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as ‘fair’.

310    However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].

311    Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54;; Pezos v Police (2005) 94 SASR 154.

312    Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v State of New South Wales (No 2) [2006] NSWSC 914.

313    The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:

But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant.

314    Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.

315    There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:

A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.

316    The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.

40    In SZRUR, Robertson J held that the appellant had been denied procedural fairness because the primary judge should have explained the relevant Court procedures to the appellant, having regard inter alia to the fact that he did not speak, read or write English, had no legal training nor any understanding of Court rules and procedures. His Honour stated at [40] that an explanation of Court procedure would not have risked the Court being seen to advise the appellant, but rather would have left it open to the appellant to choose whether or not to give evidence of his claims of fraud as opposed to simply speaking from the bar table. At [43] his Honour said:

In my opinion, in the circumstances, the failure to explain the procedure to the appellant was not fair and it could have affected the outcome. I take into account not only that the appellant was self-represented but also that he could not speak or read English. I also take into account the importance to the appellant of the subject matter of his application to the Federal Circuit Court. As I have noted, the primary judge did not apparently advert to the appellant's statement that he did not authorise the migration agent to sign any documents on his behalf.

41    In his brief reasons for judgment agreeing with Robertson J’s reasons, Allsop CJ emphasised that the FCCA was a Court established under Ch III of the Constitution and was exercising the judicial power of the Commonwealth. The Chief Justice made the following pertinent observations at [53]-[55]:

53.    The appellant was not put into the witness box. He was not told that to make out a case of fraud he had to deal with fundamentally important issues displayed in SZFDE and SZLIX including the possibility of obtaining the presence of any migration agent for evidence in the court. With respect, it was not appropriate to simply hear him from the bar table and dismiss his case. Dealing with litigants in person is difficult. SZLIX reveals the difficulty of the type of case that this litigant in person had. Procedural fairness required at least that this appellant be given the opportunity of going into the witness box to give evidence, with knowledge of the issues that he had to address, including the exploration of the role of the migration agent. He was not afforded that fairness.

54    He should have been sworn and possibly, at the end of that evidence, he may have been required to be told of the inadequacy of the matters thus far, and of the issues that he had to address. He may not have been able to do so, but that is not the point. These are difficult cases. Nevertheless, that difficulty does not mean that they should be dealt with other than with due procedural care and, where necessary, important formality.

55    The appellant is entitled, and was entitled, to a hearing reflecting the indicia of the exercise of the judicial power of the Commonwealth. He may well have lost his case, but he is entitled to lose his case after a hearing which has afforded him procedural fairness as an incident of the exercise of the judicial power of the Commonwealth.

42    Justice Mortimer agreed with the reasons given by both the Chief Justice and Robertson J in SZRUR.

4.2    Constraints imposed by procedural fairness upon the power summarily to dismiss a matter at the first Court date

43    The Full Court has considered in two recent matters the scope and application of the power of the FCCA summarily to dismiss a matter at the first Court date, as well as the principles of procedural fairness which arise. Those matters are Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301 (Shrestha) and SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88; 229 FCR 317 (SZWBH). In contrast to those matters, where the proceedings were dismissed pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act), the power exercised by the FCCA here is that conferred upon it under r 44.12 of the FCCA Rules. However, the Full Court’s observations and findings regarding the principles of procedural fairness are also apposite here, including the importance of paying close attention not only to the regulatory framework presented by both legislation and the FCCA Rules, but also to the individual circumstances of the particular case.

44    The main relevant principles which were identified and applied by the Full Court in those two matters may be summarised as follows:

(a)    The power of the FCCA summarily to dismiss an application under s 17A of the FCCA Act is subject to the obligation to provide procedural fairness, which includes the provision of a reasonable opportunity for the appellant to present evidence and to make submissions (Shrestha at [38]-[39]).

(b)    This obligation lies at the heart of the judicial function. As Gageler J observed in Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 (Pompano) at [194] (footnotes omitted):

There should be no doubt and no room for misunderstanding. Procedural fairness is an immutable characteristic of a court. No court in Australia can be required by statute to adopt an unfair procedure. If a procedure cannot be adopted without unfairness, then it cannot be required of a court. ‘[A]brogation of natural justice’, to adopt the language of the explanatory notes to the Bill for the COA, is anathema to Ch III of the Constitution.

(Shrestha at [47]).

(c)    In assessing whether a process meets the necessary standards of procedural fairness it is always necessary to examine the particular circumstances in which that process occurs, including (but not limited to) the legislative setting, the characteristics of the parties involved, what is at stake for them, the nature of the decision to be made, and steps already taken in the process (Shrestha at [49]).

(d)    The well-established requirement that a power of summary dismissal must be exercised with caution and is “not to be exercised lightly” (see, for example, Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 (Spencer) at [24] per French CJ and Gummow J, and at [60] per Hayne, Crennan, Kiefel and Bell JJ), reinforces the proposition that procedural fairness in the exercise of judicial power is usually afforded by a party having access to the ordinary and full range of processes available within the jurisdiction which that party has invoked (Shrestha at [50]).

(e)    Recognition must be given to the pressure of high volume decision-making, such as in the FCCA’s migration jurisdiction and the tools which are available to manage such a high volume of cases, which includes the show cause process in Pt 44 of the FCCA Rules. However, these 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 (Shrestha at [53]).

(f)    In a high volume jurisdiction such as that conferred upon the FCCA under the Migration Act where there is also much at stake for an individual litigant in terms of fundamental rights, including the consequences of the mandatory detention regime in Australia, and removal from Australia, the high volume of cases “should if anything give rise to extra caution to ensure no injustices are being done because of judicial workload pressures” (Shrestha at [54]).

(g)    The relevant circumstances which bear upon the requirements of procedural fairness in a particular case include that there is an unrepresented applicant whose primary language is not English and who may be assumed to be unfamiliar with court processes and that person is called upon, without notice, to mount arguments resisting the summary dismissal of the applicant’s application (SZWBH at [32]). In our respectful view, those observations are equally applicable to a situation where inadequate notice is given to the applicant.

(h)    Merely because an applicant has been provided with pro forma information on the relevant form applicable to proceedings under s 476 of the Migration Act (which includes a statement that, at the first Court date, the FCCA “may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding”) is relevant but not determinative as to whether procedural fairness obligations have been discharged. That is because:

… There can reasonably be no such presumption, in relation to unrepresented parties, unfamiliar with the Australian legal system and in particular without knowledge about the nature, purpose and processes of judicial review, most of whom have little or no adequate command of the English language and certainly no command of English as used by and in the courts. In any event, the terms of the statement on this form, expressed as they are in the alternative and without any advertence to the permanency of the consequences of final dismissal, lack sufficient clarity to be used in the way the primary judge has purported to use them.

    (SZWBH at [48]).

(i)    A statement on such a form does not relieve individual judges of their obligation to exercise summary dismissal powers reasonably and conformably with procedural fairness requirements (SZWBH at [49]).

(j)    At the very least, prior notice of the risk of an application being summarily dismissed at the first Court date must be given and, although there is no rigid rule in this regard, some indication of the amount of notice is indicated in the requirement identified in r 6.19(a) of the FCCA Rules that three days’ notice be given by a respondent who seeks summary dismissal:

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.

    (SZWBH at [57]).

4.3    Was the applicant denied procedural fairness?

45    In opposing the applicant’s claim that he was denied procedural fairness, the Minister sought to distinguish the case here from those in Shrestha and SZWBH. Ms Mitchelmore, who appeared for the Minister, submitted that the material differences between this case and those other two matters are:

(a)    In both Shrestha and SZWBH, the FCCA moved of its own motion summarily to dismiss the applications and the Minister either did not actively support summary dismissal or counselled against it, whereas here, as in Kumar v Minister for Immigration and Border Protection [2015] FCA 898 (Kumar), the Minister’s filed Response which was provided to the applicant approximately two weeks before the first Court date notified him of the Minister’s intention to have his application dismissed at the first Court date.

(b)    In both Shrestha and SZWBH, the appellants had said enough to identify a reasonably arguable point which, if made out, would amount to jurisdictional error, whereas here the applicant’s two grounds of judicial review did not suggest any need for him to adduce further evidence and nothing was suggested by him to the contrary.

(c)    The grounds advanced by the applicant in his judicial review application in the FCCA were “without merit” and it is difficult to identify any reasonable argument that would be available to him.

(d)    In this case, the primary judge expanded upon what the term “jurisdictional error” required the applicant to establish.

(e)    The Court Book had been served in the present case and, although this occurred only the day before the hearing, this did not prevent the applicant from raising aspects of the Tribunal’s processes that he contended were unfair (referring to the applicant’s complaint that his representative was unfairly precluded from making oral submissions to the Tribunal but he also accepted that his representative was given an opportunity to provide subsequent written submissions).

46    In our view, while it is not irrelevant to have regard to the particular circumstances which presented themselves in Shrestha and SZWBH, the primary approach should be to identify the relevant principles relating to procedural fairness and to apply them to the particular circumstances here. It is unhelpful to approach the issue of procedural unfairness in the particular circumstances here by regarding Shrestha and SZWBH as creating a checklist which governs the question whether there has been procedural unfairness in summarily dismissing a judicial review application. The following observations of the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [42], although directed at the approach to be taken in considering whether there has been an unreasonable exercise of discretionary power in the legal sense, are also applicable to the determination of whether a power has been exercised in circumstances involving procedural unfairness:

It would be wrong to see Li as creating some kind of factual checklist to be followed and applied in determining whether there has been a legally unreasonable exercise of a discretionary power. Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence. Ultimately, however, the outcome will depend on the application of the principles which emerge from Li, and the earlier authorities discussed in it, rather than on mere factual similarities or differences.

47    The circumstances which indicate that the applicant was denied procedural fairness, including the general matters set out above concerning the process and approach expected of a Court exercising the judicial power of the Commonwealth and the importance of maintaining public confidence in the judicial process, are as follows:

(a)    Although the applicant was given 14 days’ notice of the Minister’s intention to have his application summarily dismissed at the first Court date, the primary judge made no attempt to ascertain the applicant’s understanding of that procedure, including that he carried the onus of persuading the Court that his application raised an arguable case for the relief claimed. Instead his Honour used rather confusing and technical legal language (such as “jurisdictional error”, “show cause”, “not a court of appeal”, “review the merits” and “excess of jurisdiction”). In [9] of his affidavit dated 2 May 2016, the applicant stated that he did not understand the letter which accompanied the Minister’s Response (see [19] above). In [11] of that affidavit, the applicant also stated that he did not understand the questions asked of him by the primary judge and, perhaps unsurprisingly, that he did not know what jurisdictional error meant. This evidence was not challenged before us.

(b)    The primary judge made no attempt to ascertain the level of the applicant’s understanding of what was happening on 14 May 2015. That understanding may have been confused by the terms of the letter dated 29 April 2015, under cover of which the applicant was served with the Minister’s Response. The applicant was informed in that letter that the Minister “may ask the Court to hold an immediate show cause hearing” and that at such a hearing the Minister “will ask the Court to dismiss your application”. This language suggested that there was only a possibility that the Minister would request an immediate show cause hearing. It was not until the applicant appeared at the first Court date that it was confirmed to him that the Minister would in fact apply for an immediate show cause hearing. The letter, which appears to be a pro forma, also contained information which had no application to the applicant’s case, including its reference to an extension of time.

(c)    At no point did the primary judge seek to explain to the applicant in a meaningful way the Court’s processes, including the applicant’s right to seek an adjournment notwithstanding that the applicant told his Honour that: “This is a very difficult situation for me” in the context of him not having obtained legal aid. There was no inquiry as to whether that initial request for legal aid was further pursued. Nor did the primary judge provide the applicant with any meaningful explanation of the complex legal concepts which were used by his Honour such as those referred at subparagraph (a) above.

(d)    To the primary judge’s knowledge, the applicant neither spoke nor read English and he required an interpreter.

(e)    The applicant received a copy of the Court Book, which was 318 pages long (most of it in English), only the day before the hearing. The Court Book was provided by the Minister even though it appears that no direction to do so had been made at that time. Many of the documents in the Court Book were documents which had been provided by the applicant or his migration agent. The applicant stated in [10] of his affidavit dated 2 May 2016 before us, that he did not have enough time to look at the Court Book before the hearing. This evidence was unchallenged. The applicant confirmed to the primary judge that he had “seen” the Court Book, but no attempt was made by the primary judge to establish whether the applicant had had sufficient time to have it interpreted and/or to review it for the hearing on 14 May 2015 (even though the primary judge was told that it had been filed as recently as 12 May 2015).

(f)    At no time did the primary judge draw the applicant’s attention to the requirement in r 44.05(2)(b) that his application must be supported by an affidavit which included any document or other evidence he sought to rely on, nor did his Honour ask the applicant whether he had had an adequate opportunity to review the Court Book to ascertain whether he wished to rely upon anything contained therein.

(g)    At no point during the hearing did the primary judge ask the applicant what his view was concerning the Court moving immediately to hear the Minister’s application or whether he wished to apply for an adjournment and why.

(h)    Shortly after the hearing resumed at 12.16 pm, the Minister’s solicitor took the primary judge to selected paragraphs in the Tribunal’s statement of decision and reasons for the purpose of persuading the Court that it should not be satisfied that the application raised an arguable case for the relief claimed but there was no reference by either the Minister or the Court to such other material as may have supported a contrary conclusion.

(i)    When, during the course of the brief hearing, the applicant said several times words to the effect that the Tribunal had not correctly applied the “rules and laws” to his case, the primary judge made no attempt to ask him to explain what he meant or to identify the relevant “rules and laws”.

(j)    The rather peremptory manner in which the applicant was dealt with is reflected in the fact that, when the Minister’s solicitor handed up a copy of Heerey J’s decision in Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301; 34 ALD 347 (Selvadurai), which he submitted was relevant, the primary judge asked that a copy be given to the applicant but then almost immediately thereafter the applicant was asked by his Honour to respond to the Minister’s application, giving the applicant no meaningful opportunity to have the judgment or any specific part on which the Minister relied interpreted to him so that he could make submissions on it.

48    It should be further noted that as a matter of substance no reasons were provided by the primary judge as to why he proceeded to dismiss the application. As earlier mentioned, the primary judge accepted the Minister’s submissions without more and concluded that, “The application is dismissed under rule 44.12” as he was clearly satisfied (without explanation) that the application failed to disclose any arguable jurisdictional error. Depending upon the facts of any given case, it may be that such reasons as are required to be given may be commendably brief. It may be that little more may be required than a statement as to the need to exercise caution before executing the power conferred by r 44.12 and a brief reference to the facts and the grounds of review relied upon. But some explanation, however brief, is required which exposes an awareness on the part of the judge exercising the power as to the manner in which legal principles have been applied to the facts of a given case. In the absence of reasons which comply with these minimum standards, this Court is severely hampered in discharging its appellate function. In the absence of explanation by the FCCA, the task of providing an applicant with an explanation as to why his judicial review case has been dismissed is impermissibly shifted from the FCCA to this Court. But it is not for this Court on appeal to discharge the functions which should be performed by the FCCA and which have been entrusted by the legislature to that Court.

49    As noted above, in defending the primary judge’s decision, the Minister relied upon various differences between the facts and circumstances in Shrestha and SZWBH and those here, which included the failure of the applicant either below or before us to identify any arguable basis for the relief he sought, including by reference to the contents of the Court Book. We accept that this is relevant, but it attracts limited weight for the following reasons. First, it was procedurally unfair to expect the applicant to develop the terms of his application at the hearing on 14 May 2015 in the circumstances of the present case where he was given little time to respond to the Court Book he received the day before and no time to address the decision in Selvadurai. Further, he was unrepresented and understood little or no English.

50    Secondly, as to the Minister’s contention that, even though the applicant is now legally represented, no arguable basis for the relief sought has been demonstrated, several grounds are now identified in the amended application for judicial review (see [28] to [34] above), including additional particulars to support the procedural unfairness ground, and the Minister did not oppose leave being granted for the applicant to raise these grounds. It may be assumed that the Minister considered that the various grounds are at least arguable and not an abuse of the Court’s process.

51    For reasons which will shortly emerge, it is unnecessary for us to determine those other grounds of judicial review other than to state that we do not accept the applicant’s contentions that he had a right to publicly funded legal representation as an aspect of the requirements of procedural fairness or, alternatively, was entitled to have the proceeding stayed. Mr Williams was unable to point to any authority to support these contentions. The contentions are inconsistent with High Court authority, including Dietrich at 297-298, per Mason CJ and McHugh J, at 317 per Brennan J, at 330 per Deane J, at 343 per Dawson J, at 356 per Toohey J and at 364-365 per Gaudron J; The State of New South Wales v Canellis [1994] HCA 51; 181 CLR 309 at 328-331 per Mason CJ, Dawson, Toohey and McHugh JJ and see also Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [111] per Gummow and Crennan JJ.

52    The fact that the applicant was unrepresented is a factor which may be taken into account, along with others, in determining whether there has been a denial of procedural fairness but we doubt that this factor alone would ever warrant a finding of procedural unfairness in a hearing of the present kind.

53    For the reasons above, the applicant’s procedural unfairness ground should be upheld. It is both unnecessary and inappropriate to determine the other grounds raised in the amended judicial review application, which relate to matters which are said to arise under the Constitution (see Re Patterson; ex parte Taylor [2001] HCA 51; 207 CLR 391 at [248]-[252] per Gummow and Hayne JJ and Babbington v Commonwealth of Australia [2016] FCAFC 45 at [47] per Kenny, Perram, Robertson, Griffiths and Perry JJ).

5    Conclusion

54    Leave should be granted to the applicant to amend his application for relief under s 39B of the Judiciary Act in accordance with the form of that application dated 26 April 2016. The orders made on 14 May 2015 by the FCCA should be set aside. The applicant’s application dated 16 April 2016 under s 476 of the Migration Act should be remitted for determination according to law. Having regard to the basis for our finding that the applicant was denied procedural fairness, this redetermination should be conducted by a judge of the FCCA other than the primary judge.

55    On the matter of costs, there is no reason why the Minister should not bear the applicant’s costs below (which are in any event likely to be very small given that the applicant represented himself and was indigent).

56    On 16 December 2015, Perry J made orders, which included granting the applicant leave to file and serve an amended judicial review application by 20 January 2016. This did not occur. When the matter came again before Perry J on 16 February 2016, Mr Williams informed her Honour that the applicant proposed to amend his judicial review application and to also file an application for an extension of time and leave to appeal from the primary judge’s orders. He told her Honour that he hoped this would occur within a week thereof. This did not happen. The Minister’s solicitors wrote to Mr Williams twice on this subject (11 March 2016 and 5 April 2016). On 7 April 2016, Mr Williams responded and stated that the applicant did not propose to amend the judicial review application and that he was still in the process of seeking advice from unnamed senior counsel as to whether he should file an application for an extension of time for leave to appeal in addition to or replacing the judicial review application.

57    As noted above, on 26 April 2016, the applicant lodged electronically a proposed amended application for judicial review as well as an application for an extension of time for leave to appeal. The covering email from Mr Williams to the Minister’s solicitors claimed that there were “no changes to the substantive arguments – just better and further particulars”. We disagree. In the originating judicial review application as lodged in this Court on 22 October 2015, ground 1 asserted a denial of natural justice or procedural fairness, in that the applicant was denied “a fair hearing, access to legal representation or equality of arms”. However, the particulars in support of that ground were substantially different from the particulars provided in the proposed amended application dated 26 April 2016. It was only then that the applicant informed the Minister of the detailed particulars in support of his claim that he had been denied a fair hearing, which particulars are set out in [29] above. For these reasons, we consider that the appropriate order is that the Minister pay the applicant’s costs of the proceeding from 26 April 2016, as agreed or assessed, and not before.

58    Orders will be made accordingly.

Associate:

Dated:    20 May 2016