FEDERAL COURT OF AUSTRALIA

SZQGT v Minister for Immigration and Border Protection [2014] FCAFC 13

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 17 September 2013 dismissing the application with costs be set aside.

3.    The matter be remitted to the Federal Circuit Court of Australia for that Court to deal with the application to amend to add grounds 10 and 11 and, if leave be granted, to hear and determine the substance of those grounds and to decide the final disposition of the matter.

4.    The first respondent pay the appellant’s costs of the appeal.

5.    The costs of the proceedings in the Federal Circuit Court of Australia abide the outcome of the proceedings in that Court, at the discretion of the judge of that Court.

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

REASONS FOR JUDGMENT

TRACEY J

1    I will ask Robertson J to deliver the first judgment.

ROBERTSON J

Introduction

2    This is an appeal from the judgment and orders of the Federal Circuit Court of Australia given on 17 September 2013 dismissing the application of the present appellant, with costs.

3    The appellant is a citizen of Afghanistan who seeks to be recognised as a refugee. He arrived by boat at Christmas Island on 23 February 2010. On 24 April 2010 he lodged an application for a Refugee Status Assessment. On 17 August 2010 he was assessed by a delegate of the Minister as not meeting the definition of a refugee. He sought a review of that decision and on 16 February 2011 an Independent Merits Reviewer (Reviewer) recommended that the appellant not be recognised as a person to whom Australia has protection obligations.

4    On 30 May 2011, the appellant applied “out of time” to what is now the Federal Circuit Court of Australia for judicial review of the Reviewer’s recommendation. He sought an extension of time to bring those proceedings. He filed an amended application on 22 September 2011.

5    That Court, by orders made on 7 October 2011, dismissed the appellant’s application for an extension of time and dismissed the application, with costs. The conclusion of the Court was that none of the matters alleged by the appellant in his substantive application disclosed error on the part of the Reviewer and thus the Court further concluded that the substantive application did not have reasonable prospects of success. In those circumstances, the primary judge found that it was not in the interests of the administration of justice that the time for the commencement of the proceedings be extended. Consequently, the application was dismissed.

6    The appellant then sought leave to appeal to this Court. Leave to appeal was granted, the appeal was allowed and the matter remitted to the then Federal Magistrates Court for determination: SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26; (2012) 200 FCR 207. The relevant order, made on 4 April 2012, was as follows:

The matter be remitted to the Federal Magistrates Court of Australia for determination of the relief sought in the Amended Application filed in the Federal Magistrate’s [sic] Court on 22 September 2011, having regard to the reasons for judgment in SZQDZ v Minister for Immigration and Citizenship [2012]’s FCAFC 26.

7    I note that of the five matters so remitted there have been two decisions of the Federal Court: SZQGV v Minister for Immigration and Citizenship [2013] FCA 112 (11 February 2013 per Griffiths J) and SZQFR v Minister for Immigration and Citizenship [2013] FCA 574 (13 June 2013 per Dowsett J and referred to more fully in the reasons which follow). There are also two other appeals being heard with the present appeal: SZQDZ v Minister for Immigration and Border Protection and SZQER v Minister for Immigration and Border Protection.

8    I also note that the appellant accepted before the present Full Court that in light of the decision of Rares J in SZQKC v Minister for Immigration and Citizenship [2012] FCA 249; (2012) 206 FCR 253 his original amended application was bound to fail.

9    On 23 August 2012 the Federal Magistrate directed that the parties make submissions to him on the following questions:

1.    Do the Full Court’s decision and orders permit amendments to the applicants’ applications?

2.    Is this Court required to reconsider those aspects of the applicants’ substantive applications which were considered previously?

3.    If the answer to 2 is yes, is it appropriate that I hear the matters?

10    On 13 September 2012 orders were made subsequent to reasons being given on 6 September 2012 concerning the nature of the remitted proceedings and whether the then Federal Magistrate should disqualify himself from hearing the proceedings further.

11    The orders made on 13 September 2012 were as follows:

1.    The applicant have leave to seek to re-open his case.

2.    The hearing of any application to re-open be listed on 7 November 2012 at 10.15am.

3.    The applicant file and serve any evidence, submissions and proposed further amended application on which he will seek to rely on or before 5 October 2012.

4.    The parties have liberty to apply on three days’ notice.

12    There was then some delay because of an appeal to this Court, the Federal Court of Australia, in the similar matter of SZQFR v Minister for Immigration and Citizenship [2012] FMCA 863. That appeal was heard on 18 February 2013 and was dismissed on 13 June 2013: SZQFR v Minister for Immigration and Citizenship [2013] FCA 574 per Dowsett J.

13    In the meantime, on 20 March 2013, judgment was given in the factually unrelated matter of Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 per Lander, Besanko, Gordon, Flick and Jagot JJ.

14    On 8 July 2013 orders were made in what had by then become the Federal Circuit Court that the present appellant have leave to file and serve an application in a case returnable on 13 August 2013. There was also an order that until further order no amendments to the application were to be filed and that the present appellant file and serve any evidence, submissions and proposed further amended application on or before 30 July 2013.

15    An application was served on 30 July 2013 seeking to amend to add grounds 10 and 11. However it appears to have been an application to amend “to add a different law and new claim based on a change in the law that has occurred whilst the proceedings are extant”.

16    After a hearing on 13 August 2013 judgment was given on 23 August 2013 and orders made on the same date dismissing the present appellant’s interlocutory application “made on 13 August 2013” for leave to amend his principal application. The matter was listed for directions on 2 September 2013.

17    On that date, 2 September 2013, there was some short argument, judgment was reserved and on 17 September 2013 the orders were made which I have referred to above, dismissing the application with costs.

The judgments below

18    The reasons of the Full Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26; (2012) 200 FCR 207 involved the conclusion, at [46], that the application by the present appellant required determination on its merits. The Full Court said, at [51], that the Federal Magistrates Court erred in dismissing, on a summary and not final basis, the substantive applications on the footing that they were out of time and therefore could not succeed.

19    These reasons were picked up by the terms of order 4 made on 4 April 2012 that the matter be remitted to the Federal Magistrates Court for determination of the relief sought in the Amended Application filed in that Court on 22 September 2011 having regard to the reasons for judgment in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26; (2012) 200 FCR 207.

20    In the reasons of the primary judge given on 6 September 2012, SZQDZ & Ors v Minister for Immigration & Anor [2012] FMCA 793, his Honour said that it was important to note that the basis on which he had found that an extension of time under s 477 of the Migration Act 1958 (Cth) was not in the interests of the administration of justice was that the appellant had not demonstrated error on the part of the Reviewer or that his substantive claims had reasonable prospects of success.

21    The primary judge said at [17] that it was not a necessary corollary of the fact that the Court had been directed to deal with the appellant’s substantive application that a further hearing was necessary or that further amendment to the application should be permitted.

22    The primary judge said at [26] that whether the appellant would be permitted to amend his application for a second time, and whether there would be further hearings other than for directions, had to be decided by reference to the order of the Federal Court which was to the effect that the Federal Magistrates Court determine the appellant’s claim for substantive relief free of the error of considering s 477 to have any relevance.

23    The primary judge continued as follows:

[28]    As in the CPSU case and in Commissioner of Taxation (Cth) v Pratt Holdings, the consequence of the Federal Court’s order is that there is an issue unresolved which must now be decided. In each case the issue which the Court must determine is whether the applicant in question is entitled to the declaratory and injunctive relief he seeks. The decision on that question turns on whether the respective applicants can demonstrate that the relevant independent merits review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].

[29]     As recorded in the primary decisions, in each of these cases I found that the various allegations of error on the part of the independent merits reviewers had not been made out. It was on the basis of those findings that I determined that it was not in the interests of the administration of justice that time to bring the proceedings be extended. Those findings were not discussed in the appeal decision. Put another way, they are findings which have not, at least at this point, been found to be affected by legal error. Consequently, subject to any re-opening of the applicants’ cases, there is no need or reason to reconsider them and no call to permit amendments, further hearings or further submissions in relation to them. The question which the Federal Court remitted to this Court in each case can, and absent a re-opening should, be determined in accordance with the findings made in the relevant primary decision.

[30]    This may seem an inappropriate conclusion given that, as noted earlier, in the primary decisions the relevant question was whether the [appellant’s] substantive cases had reasonable prospects of success, not whether they would succeed or fail. Those circumstances might suggest that [in his hearing the appellant] had not fully addressed the Court on the merits of their substantive applications and that any findings on such matters ought not be considered determinative of whether the review [s] were procedurally unfair or not conducted by reference to the correct legal principles correctly applied. However, that characterisation would not be correct.

[31]    On the first occasion SZQDZ’s matter was before the Court it was ordered that:

The matter is listed for final hearing and the hearing of the application for extension of time together at 10.15am on 15 August 2011 …

…

[35]     It is apparent from those orders that [the] matter was listed for a hearing which would include full argument on and consideration of the merits of [the appellant’s] substantive application for a declaration that the independent merits reviewer in question had erred and for consequential injunctive relief. That is what occurred.

[36]    At the hearing of SZQDZ’s matter, although the question of an extension of time under s.477 was addressed, it was not the principal topic of submissions. The merits of the substantive application were fully argued as an integral part of the s.477 issue. Indeed, the [appellant’s] written submissions dealt with nothing else …

…

[38]    Although at the original hearings the [appellant] only had to satisfy me that [his] substantive allegations had reasonable prospects of success, it is not apparent to me that the approach [he] took to the question of the legal correctness of the [Reviewer’s] review[s] was different from the one which [he] would have taken if s.477 had not been an issue. Moreover, it was not suggested in the submissions on the present questions that [the appellant’s] original arguments had been framed so as to only make out a case with reasonable prospects of success, rather than as a full argument on whether the relevant reviewer had erred. Unless and until such an allegation is made, I see no reason to conclude other than that at [he has] respective, original hearing [s] [the appellant] advanced his case of reviewer error as forcefully and as persuasively as he could and that if there had been no question of s.477’s application, as then advised, his arguments on the legal correctness of the relevant review would have been no different.

[39]    I conclude that observance of the Federal Court’s order requires me, subject to any re-opening of any of the cases, to determine the [appellant’s] substantive claims based on the cases as presented at the original hearing [s] and the findings expressed in the primary decisions: CPSU v Telstra Corporation Ltd (No 2); Commissioner for Taxation v Pratt Holdings Pty Ltd; DK (Serbia) v Secretary of State for the Home Department. The latter decision also gives guidance as to what circumstances might justify a re-opening of any of the cases should application to re-open be made.

24    The primary judge had earlier noted at [13] the submission by the Minister that the setting aside of the Court’s orders and the remittal of the matters by the Federal Court meant that the appellant would be entitled to a further hearing and to make further submissions. It was further submitted by the Minister, the primary judge noted, that if the appellant wished to raise a further ground then he was entitled to apply to do so, at which point a decision would be made on any such application in accordance with ordinary principles. The Minister submitted, the primary judge noted, that in cases of this sort, where an amendment could only prejudice the Minister in costs, the Court would entertain an application to amend and, subject to being satisfied that the proposed amendment was not vexatious, allow it to be made.

25    As I have said on 8 July 2013 orders were made in what had by then become the Federal Circuit Court of Australia that the present appellant have leave to file and serve an application in a case returnable on 13 August 2013.

26    At the hearing on 13 August 2013 counsel for the appellant sought to move “on the interlocutory application to … further amend” the application in the form that had been provided to the Court. His Honour the primary judge said that his orders had not been observed, there was no application in a case and most specifically there was no application to re-open the case which was a condition precedent to an amendment. Reference was made by counsel for the appellant to SZQFR v Minister for Immigration and Citizenship [2013] FCA 574 at [47], a related case, where Dowsett J had said, amongst other things: “No doubt it was open to the appellant to seek to lead further evidence, make further submissions, or amend the application, but he did not seek to do so.” Counsel submitted that the difference between that case and the present case was a preparedness to amend the application from what it was before it went to the Full Court.

27    The proposed amendment was to include the following grounds:

10.    The Respondent cannot lawfully act on the basis of the ITOA (International Treaties Obligations Assessment) because it was made by a process that denied the Applicant procedural fairness in that he was not given any opportunity to:

a.    be notified that the process was being undertaken; and/or

b.    be heard on the questions relevant to the Assessment; and/or

c.    respond to the substance and source of information that the Assessor relied upon as being credible, relevant and significant in making the Assessment; and/or

d.    be provided with the reasons for the decision.

11.    The Respondent cannot lawfully act on the basis of the ITOA Assessment because the assessor did not apply the correct test under s 36(2)(aa) of the Migration Act 1958.

28    Mr Markus, appearing for the Minister, said that the amendment was opposed. He said that counsel for the appellant was correct to state that he had indicated previously that it was the intention of the appellant to seek to re-open the case and to seek to file amended applications. As to the order that the appellant have leave to file and serve an application in a case, Mr Markus said such an application had not been filed but he did not make much of that because his client was on notice by the filing of the other documents that that was the intention. Mr Markus added that if counsel for the appellant wished to make that application orally he did not oppose that happening although that application had not been made to that stage. Counsel for the appellant said that he [had] made the application and the primary judge said “I inferred that from your earlier submissions.” He also referred to the affidavit that had been filed in support of the application, which had now been made orally, but which did not explain at all why it would be appropriate to now grant leave to amend.

29    Mr Markus said that the Minister did not propose to rely on the international treaties obligation assessment which was the subject of the application to amend.

30    Mr Markus concluded by submitting that even if there was no need for leave to re-open the appellant ought to explain why these issues could not be raised earlier and why it was appropriate that they be allowed to be raised then and the appellant had not attempted to do so.

31    Counsel for the appellant made submissions in response. The primary judge reserved his decision and, as I have said, gave reasons on 23 August 2013 and made orders dismissing the appellant’s interlocutory application for leave to amend: SZQDZ & Ors v Minister for Immigration & Anor [2013] FCCA 1119. His Honour found at [23] that it was not necessary to consider the submissions about the proposed amendments. In any event, his Honour said, before making a decision on that aspect of the matter he would need to hear further from the appellant as to why his proposed amendments concerning the proceedings before the Reviewer would have reasonable prospects of success.

32    His Honour’s overall conclusion at [24] was that in circumstances where the appellant did not seek to re-open his case his interlocutory application to amend his principal application was misconceived. Consequently, the interlocutory application would be dismissed.

33    The primary judge said the history of the matter relevant to the present issues had been set out in his reasons in SZQDZ & Ors v Minister for Immigration & Anor [2012] FMCA 793. The primary judge said that in reality the present appellant’s original hearing proceeded as a final hearing and that the appellant made and closed his case on the Reviewer’s alleged errors at that point. His Honour continued:

[21]    Consequently, before the amendments presently sought may be addressed, the applicants must first demonstrate that they should be permitted to re-open their cases. Contrary to the applicants’ submissions, such a finding is not contrary to Dowsett J’s holding in SZQFR.

[22].    The applicants expressly eschewed any applications to re-open. That being so, no orders of that sort will be made.

34    On 2 September 2013 at a short hearing it appeared to be common ground between the parties that in the absence of leave to amend the Court could proceed to make final orders.

35    As I have said, reasons were given on 17 September 2013 and orders made dismissing the substantive application. His Honour referred back to his earlier conclusion that subject to any re-opening of the appellant’s case there was no need or reason to reconsider the appellant’s case and no call to permit amendments, further hearings or further submissions in relation to them. His Honour continued:

[5]     … I found that the question which the Federal Court remitted to this Court… could, and absent a re-opening should, be determined in accordance with the findings made in the primary decision applicable to each of those applicants: SZQDZ v Minister for Immigration & Citizenship [2012] FMCA 793 at [29].

[6]    The applicant in this proceeding has not sought subsequently to re-open his case although he did seek unsuccessfully to amend his application for a second time: SZQDZ v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1119.

36    His Honour restated his earlier conclusions of 2011 and said that those findings had not been disturbed and did not need to be reconsidered for the purposes of the present, 17 September 2013, decision. The primary judge said:

[11]    By reason of the conclusions reached in the primary decision concerning the applicant’s substantive application, I find that he has not demonstrated that the Reviewer’s review was procedurally unfair or not conducted by reference to the correct legal principles correctly applied.

[12]    Consequently, the application will be dismissed with costs of $6,646 in accordance with the present fixed scale.

Grounds of appeal

37    By notice of appeal filed on 8 October 2013 the appellant seeks orders that the appeal be allowed, the orders made on 17 September 2013 be set aside, a declaration made that the recommendation of the Reviewer was not made in accordance with law and an injunction restraining the Minister from relying upon the recommendation of the Reviewer. Costs orders are also sought.

38    The grounds are as follows:

1.    The Federal Circuit Judge erred by failing to act in accordance with s 42 of the Federal Circuit Court of Australia Act 1999 (Cth) by refusing to allow amendments sought by the applicant to allege further grounds of error on [sic] the Second Respondent’s recommendation arising from the decision of this Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 and refusing to hear and determine the grounds raised in those proposed amendments: [2013] FCCA 1318 at [5]-[6].

2.    The Federal Circuit Court Judge erred by finding that the decision of the Full Court of this Honourable Court in SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207, left “undisturbed” conclusions made by his Honour in the earlier decision which was subject to that appeal; and that his Honour could, on the basis of those conclusions, dismiss the application: [2013] FCCA 1318 [10]-[11].

3.    The Federal Circuit Court Judge erred by refusing to provide the applicant with a hearing: [2013] FCCA 1318 [5].

4.    The Federal Circuit Court Judge erred by refusing to accede to an application that he recuse himself as having prejudged the outcome of the proceedings: [2013] FCCA 1318 [5].

5.    The Federal Circuit Court Judge erred by finding that the Reviewer’s review was not procedurally unfair and/or not conducted by reference to correct legal principles: [2013] FCCA 1318 at [11].

6.    The Federal Circuit Court Judge erred by not granting the relief in the application all the proposed amendments to the application.

39    Section 42 of the Federal Circuit Court of Australia Act 1999 (Cth) provides:

In proceedings before it, the Federal Circuit Court of Australia must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.

Submissions

40    The appellant submitted that by his Honour’s decision of 23 August 2013 the primary judge erred by making the assumption that the appellant had closed his case and in refusing the application to amend on the basis that no application to re-open had been made, when an application to re-open was in fact made orally at the interlocutory hearing on 13 August 2013. The appellant submitted there was no doubt that an application to re-open was made, albeit in the appellant’s view such an application was not necessary. The solicitors for the respondent Minister indicated that they did not oppose that application being made orally.

41    The appellant submitted that it was integral to the primary judge’s dismissal of the appellant’s application for leave to amend the Application that the primary judge found at [22] that the appellant had expressly eschewed any application to re-open and, that being so, no order of that sort would be made. In turn that finding led the primary judge to find that, because the appellant had not sought leave to re-open his case, his interlocutory application to amend was misconceived.

42    The appellant submitted that the application to re-open, at the very least, required consideration of the proposed merits of the proposed amendments, a consideration that the primary judge refused to undertake.

43    The appellant submitted that as at the directions hearing on 13 September 2012 an application for leave to re-open was made. The appellant’s position was that he did not need to re-open as there were new grounds which had not been considered and which, in the interests of justice, ought to be considered that really turned on the amended application. Further, at the adjourned hearing on 13 August 2013 there was an exchange which was consistent with the position of the appellant that notwithstanding his primary position that leave to re-open was not necessary, he made such an application in the alternative.

44    As to whether leave to re-open was necessary, the appellant submitted that the primary judge incorrectly viewed Community and Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324 as standing for the proposition that on remittal the case was simply a continuation of the case run before the appeal and as that case was closed any further step required leave to re-open the case. The appellant submitted that that case concerned an attempt by one party to depart from a conscious election at the first hearing (not to cross-examine a witness). The present case involved no analogous departure from such a forensic election. Rather, the appellant submitted, the present case involved an application to amend the pleadings to reflect a new issue of law that had arisen from a Full Court decision handed down after the first hearing and before the rehearing. Contrary to the emphasis placed by the primary judge on the closing of the case and the first hearing, Community and Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324 at [16] cited with approval the approach in Marks v GIO Australia Holdings Ltd [1999] FCA 1010 which characterised the effect of the remittal as meaning the trial was incomplete and unfinished. The appellant referred also to Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at [8] describing a remitted matter as being a continuation of the first trial.

45    The appellant submitted that DK (Serbia) v Secretary of State for the Home Department [2006] EWCA Civ 1747; [2007] 2 All ER 483; [2008] 1 WLR 1246 supported the proposition that new evidence or material could be received and was not analogous to the present case. The legislative regime there under consideration stood in stark contrast, it was submitted, to the provisions of s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) pursuant to which the present remitter was made.

46    As to the decision on 17 September 2013, the appellant submitted the primary judge erred by refusing to provide the appellant with a final hearing and in finding that the decision of the Full Court of this Court in SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207 left “undisturbed” conclusions made by the primary judge in the earlier decision which were subject to that appeal and that the primary judge could, on the basis of those conclusions, dismiss the application.

47    The appellant submitted that the proposed amendments arising from Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 were not considered below. The Reviewer’s error was the failure to put to the appellant the substance of matters that the Reviewer knew of and considered might bear upon whether to accept the appellant’s claims. The Reviewer’s failure to alert the appellant to the determinative weight which would be given to the protection offered by the faction denied him an opportunity to call evidence concerning that question which amounted to a denial of procedural fairness. The appellant submitted the Reviewer also erred by not raising in the natural justice letter the question of the appellant’s safe conduct to the Jaghori district were he to return to Afghanistan or matters concerning the safety of Kabul. The appellant submitted the primary judge made the same error.

48    The appellant submitted that the erroneous view on the part of the primary judge that it was permissible to approach the matter by adoption of earlier findings he had made and with a predisposition to make those findings had the consequence that the primary judge erred in failing to recuse himself. It was submitted that the approach by the primary judge, not authorised by DK (Serbia) and others v Secretary of State for the Home Department [2006] EWCA Civ 1747; [2007] 2 All ER 483; [2008] 1 WLR 1246, expressing a concluded view on the application would lead to fair minded people reasonably apprehending or suspecting that the Court had pre-judged the case. Reference was made to Johnson v Johnson (2000) 201 CLR 488 at 493 and Michael Williams & Partners Ltd v Nicholls (2011) 244 CLR 427 at [31].

49    It was submitted that the decision of Dowsett J in SZQFR v Minister for Immigration and Citizenship [2013] FCA 574 at [50] could be distinguished from the present appeal because at that stage it appeared to Dowsett J that the then Federal Magistrate would entertain an application to amend or the leading of further evidence.

50    The appellant submitted the present proceedings demonstrated that the primary judge had a predisposition to “only one possible outcome” regardless of the caveat that Dowsett J properly identified as ameliorating what must otherwise be pre-judgment if only one outcome of the remitted proceedings was truly possible.

51    Notwithstanding the relief sought in the notice of appeal, the appellant submitted that the appeal should be allowed, the orders of the Federal Circuit Court judge be set aside and in lieu thereof the appellant should be granted leave to re-open and/or amend the Amended Application in the form set out in the appeal book.

52    The respondent Minister submitted that on 30 July 2013 the appellant filed and served submissions attaching a proposed further amended application, along with an affidavit annexing the International Treaties Obligations Assessment. No application in a case was filed in the proceedings. The submissions which were filed and served made no mention of, or reference to, any application to re-open. The Minister submitted that during the hearing on 13 August 2013 counsel for the appellant made an oral application for interlocutory orders. The nature of that application, the Minister submitted, appeared to be in dispute.

53    The Minister accepted that on 13 September 2012 counsel for the appellant, with some apparent reluctance, indicated to the Court that he was proposing to apply for leave to re-open. The primary judge made orders giving the appellant leave to make such an application. The point however, according to the Minister, was that the appellant never made such an application, at least not one in writing. No written application in a case had ever been filed by on behalf of the appellant, despite leave having been granted to do so, including on 13 September 2012 and 8 July 2013.

54    The Minister accepted that an application in a case was made orally on 13 August 2013. His Honour considered that the application that was made was one seeking leave to amend the application, not one to re-open the case. The Minister therefore submitted that the relevant question was whether his Honour erred in so finding and the Minister submitted that he did not so err. Even if it was not clear what the nature of the application made orally on behalf of the appellant was, the Minister submitted, the finding made by his Honour was clearly open and could not be said to be wrong. Insofar as there was any ambiguity about the nature of the interlocutory application it was caused by the appellant’s failure to make an application in writing.

55    The Minister submitted that even if this Court concluded that the appellant made an oral application to re-open, ground 1 ought not to be upheld. This was because the appellant relied on SZQRB not to add an additional ground or additional grounds but to add a new cause of action challenging a different assessment performed by a different person at a different time. The Minister had stated on transcript that he did not intend to rely on the International Treaties Obligations Assessment and, further, there was nothing to prevent the appellant from challenging that Assessment in further separate proceedings.

56    As to ground 2, whether the judgment of the Full Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26; (2012) 200 FCR 207 left “undisturbed” conclusions of the Federal Circuit Court in the earlier judgment, the Minister submitted that no error was demonstrated and that view was consistent with the conclusions of Dowsett J in SZQFR as follows:

[47]    The appellant places considerable emphasis upon the Full Court’s statement at [46] that the applications “require determination on the merits”. The expression “determination on the merits” might describe the process of hearing and deciding a case. However it might equally appropriately describe the process of making an order based on existing findings and reasoning. In this case, the Full Court indicated at [48] that the proceedings should be remitted to the Federal Magistrates Court “to make final orders consistent with these reasons”, suggesting that no further hearing was contemplated. The orders made by Rares J provided for remitter for the purpose of “determination of the relief sought in the amended application …”. In other words, any “determination” was to be as to the relief sought. The appellant’s submissions tacitly assume that the remitter necessitated reconsideration of the merits of the case. Neither the Full Court nor Rares J indicated any such thing. Plainly, the Full Court had in mind the final disposition of the matter by reference to his Honour’s earlier reasons. No doubt it was open to the appellant to seek to lead further evidence, make further submissions, or amend the application, but he did not seek to do so.

57    As to ground 3, the Minister again relied on the judgment of Dowsett J in SZQFR at [47].

58    As to ground 4, bias, the Minister again relied on the judgment of Dowsett J in SZQFR:

[50]    The appellant correctly states the test as being whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question which he or she is required to decide. See Michael Williams & Partners Ltd v Nicholls (2011) 244 CLR 427 at [31]. There is, however, no suggestion of apprehended bias in connection with the Federal Magistrate’s initial conclusions that the appellant’s case had no prospects of success on the merits. The fair-minded lay observer would know of the contents of the Full Court’s reasons, and would be aware of the terms of the order made by Rares J. In particular, he or she would understand that the Federal Magistrate was obliged to give effect to the conclusions which he had previously reached, having regard to the reasons of the Full Court. The fair-minded lay observer would also understand that only one order was possible in the circumstances. There was simply no basis for any reasonable apprehension of bias or, as the Federal Magistrate put it, the question did not arise.

59    As to grounds 5 and 6, the Minister submitted there was no substance in these grounds.

Consideration

60    These proceedings have had an unduly protracted and complicated history. It appears that procedure has taken priority over substance. The appeal, in my opinion, may be disposed of shortly.

61    It is apparent that the grounds the subject of the proposed amendment have not been considered on their merits because the application to amend was dismissed. It was dismissed on the misunderstanding that the procedural application to re-open, which the primary judge required to be made, had not been made. In fact, in my view, such an application had been made, albeit orally. But for that error, the primary judge would not have dismissed the application to amend on the basis that an application to re-open had not been made, and may have allowed it. His Honour did not consider that application on its merits. Similarly, the substantive proceeding was dismissed on the misunderstanding that the procedural application to re-open had not been made when in fact it had been made.

62    I should also add that it is not clear to me why such importance was placed either on the concept of re-opening or on the question of whether a formal interlocutory application or application in the case had been filed. I do not see why, on the matter being remitted, the simple question was whether or not either party wished to put on additional evidence, or make further submissions, or apply to amend in accordance with ordinary principles. This is consistent with the approach of Kenny J in Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266, to which the Full Court was taken. It does not appear that any of these courses would have caused prejudice to either party or would have been opposed. Of course it had to be remembered that the proceedings were for judicial review and the scope for evidence correspondingly limited.

63    As to ground 2, it does not seem to me to be helpful to consider whether the original findings were “undisturbed” as they could have been subject to further submissions. Absent submissions or a successful application to amend or, possibly, further evidence then there was no reason why the primary judge could not rely on his earlier findings. I do not find it necessary to consider this ground further.

64    By ground 3, the appellant contends that the primary judge erred by refusing to provide him with a further hearing. In my opinion this ground has no content additional to grounds 1 and 2 and does not require separate consideration.

65    Ground 4, that the primary judge erred by refusing to accede to an application that he recuse himself, has no substance. It seems to me to be clear that the primary judge took the course which he did because, rightly or wrongly, he considered that that course was required by the law and by the procedural events which had happened. I agree with the reasons of Dowsett J in SZQFR at [50], set out above, on this issue.

66    In my opinion grounds 5 and 6 do not add to the other grounds of appeal and do not require separate consideration.

67    The question then arises as to how this Court should dispose of the appeal.

68    In my view, in light of the appellant’s acceptance that he would suffer no prejudice if only the question of the proposed amendments were remitted, the merits of the original amended application should not be remitted.

69    Further, it is inappropriate for this Court, in this case, to deal with the merits of the proposed amendments to add grounds 10 and 11 as that would be to consider that matter for the first time. I note that similar arguments to those now put on behalf of the Minister as to the merits of the application to amend to add grounds 10 and 11 were made before the primary judge but his Honour did not deal with them because he refused the application to amend on the basis that no written application in the case to re-open had been filed.

70    Nothing I have said should be taken to indicate a view one way or the other on the application to amend.

71    In my opinion the appropriate orders are that the appeal be allowed, the orders of the Federal Circuit Court of Australia made on 17 September 2013 dismissing the application with costs be set aside and the matter be remitted to the Federal Circuit Court of Australia to deal with the application to amend to add grounds 10 and 11 and, if leave be granted, to hear and determine the substance of those grounds and to decide the final disposition of the matter.

72    As to costs, my view is that the first respondent should pay the appellant’s costs of the appeal since he resisted the appeal and did so unsuccessfully, but the costs of the proceedings below should abide the outcome of the proceedings in that Court, at the discretion of the judge of that Court.

Associate:

Dated:    28 February 2014

REASONS FOR JUDGMENT

TRACEY J

73    I agree with the orders proposed by Robertson J and the reasons therefor.

Associate:

Dated:    28 February 2014

REASONS FOR JUDGMENT

FLICK J

74    Concurrence is expressed with the reasons of Robertson J and the orders proposed.

Associate:

Dated:    28 February 2014