FEDERAL COURT OF AUSTRALIA

Shrestha v Migration Review Tribunal [2015] FCAFC 87

THE COURT ORDERS THAT:

1.    Leave to substitute Ground 3 of the Notice of Appeal filed on 14 May 2015 so that it reads:

“The Court below erred:

(a)    in fact and in law, by making findings that there was no arguable issue of fact or law in circumstances where the application before the Court and the submissions made as to that application highlighted issues of fact and law; and

(b)    in the exercise of its discretion by denying the Appellant an opportunity to file and serve evidence in support of the disputed matters of fact and law and then finding that the application was untenable and that the propositions advanced in respect of the alleged errors had no reasonable prospect of success and were not reasonably arguable”.

2.    The appeal be allowed.

3.    The orders of the Federal Circuit Court of Australia made on 6 February 2015 including as to costs are set aside.

4.    The application to the Federal Circuit Court of Australia be remitted to that court differently constituted for rehearing and determination according to law.

5.    The costs of the application for leave to appeal and the appeal to this Court be paid by the Minister for Immigration and Border Protection, the second respondent, to the appellant.

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

REASONS FOR JUDGMENT

THE COURT

INTRODUCTION

1    This appeal arises from the exercise by the primary judge, Judge Street, in the Federal Circuit Court of Australia (FCC) of the power summarily to dismiss an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal).

2    The primary judge summarily dismissed the application of his own motion, and despite the parties jointly asking the FCC to make agreed orders to have the application proceed to a hearing and for the exchange of evidentiary material and submissions.

3    For reasons which are set out below, we reached the view that the primary judge:

(1)    failed to accord procedural fairness to the appellant; and

(2)    wrongly exercised the power under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act)

in the circumstances.

4    We made orders at the completion of the submissions on the appeal that the appeal be allowed, and setting aside the orders of the primary judge. We also remitted the matter to the FCC, to be differently constituted, for rehearing according to law. We also addressed the costs of the appeal.

5    These are the reasons for those orders.

PROCEDURAL BACKGROUND

6    The appellant was until 13 June 2014 the holder of a Class TU Subclass 572 Vocational Education and Training Sector visa issued under the Migration Act 1958 (Cth) (the Act). On that date, a delegate of the Minister cancelled the visa, on the basis that he had not been enrolled in a registered course since 31 October 2013 as required by Condition 8202(2) of the visa.

7    The appellant sought review of the cancellation decision by the Tribunal. It conducted a hearing on 11 December 2014. Following that hearing, on 19 December 2014, the Tribunal affirmed the decision to cancel the appellant’s visa.

8    Condition 8202(2), in Sch 8 to the Migration Regulations 1994 (Cth) (the Regulations) required the appellant to be enrolled in a registered course, and condition 8202(3) required him to achieve satisfactory course attendance and to achieve satisfactory course progress. It was because neither the delegate nor the Tribunal was satisfied that the appellant met condition 8202(2) that the Minister, through his delegate cancelled the visa, and the Tribunal affirmed that decision. Each exercised the power pursuant to s 116(1)(b) of the Act. In short, it was found that the appellant had not been enrolled in a registered course of study at all since 31 October 2013 as required by Condition 8202(2).

9    The appellant then applied to the FCC to have the decision of the Tribunal set aside on the ground of jurisdictional error. The application to that Court was listed first on 5 February 2015 and on that occasion, was adjourned until the following day, as the lawyer or representative of the appellant did not attend (in the understandable circumstances set out below). On 6 February 2015, the FCC summarily dismissed the application, pursuant to the power to do so in s 17A of the FCCA Act. Although it is not explicitly stated by the primary judge that he was using that power, the transcript shows that he was using the formula of that section, and both the appellant and the Minister by their submissions accepted that his Honour did so. The Minister did not apply for that order, and did not support the making of it.

10    Subsequently, the appellant was given leave to appeal from that decision, it being of the character of an interlocutory order.

GROUNDS OF APPEAL

11    There are four grounds of appeal, namely:

(1)    that the FCC did not give the appellant a reasonable opportunity to appear and present his case on appeal, and was therefore denied procedural fairness;

(2)    that FCC erred by exercising its power summarily to dismiss an application under s 17A of the FCC Act and r 13.10 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) in circumstances where the Court did not have a pleading before it and had not satisfied itself that each party had filed and served the evidence relevant to the application;

(3)    that the FCC erred:

(a)    by making findings that there was no arguable issue of fact or law in circumstances where the submissions made highlighted issues of fact and law; and

(b)    in exercising its discretion by denying the appellant an opportunity to file and serve evidence in support of the disputed matters of fact and law, and then finding that the application was untenable and that the propositions advanced in respect of the alleged errors had no reasonable prospect of success and were not reasonably arguable; and

(4)    that the FCC erred by making a finding that s 359AA of the Act had been complied with by the Tribunal, when there was no evidence before the Court as to how the particulars required by s 359A of the Act were given during the course of the Tribunal hearing.

12    It is obvious that it is necessary to consider the course of the proceedings before the FCC to address those grounds of appeal.

PROCEEDINGS BEFORE THE FCC

13    It is appropriate to record, before referring to the detail of those proceedings that the Minister through his representatives at all times acted responsibly and appropriately, and has helpfully provided information both to the appellant and his representatives and to the Court as to the course of those proceedings. The Minister has also provided helpful and appropriately expressed submissions in relation to the grounds of appeal.

14    The grounds in the application before the FCC were as follows:

1.    The Second Respondent made jurisdictional error by failing to comply with the requirements of sections 359A and 359AA of the Migration Act 1958.

Particulars

a)    Full particulars will be provided on receipt of the transcripts.

2.    The Second Respondent made jurisdictional error by denying the Applicant procedure fairness regarding the critical issues for review in relation to the exercise of discretion under section 116 of the Migration Act 1958.

Particulars

a)    Full particulars will be provided on receipt of the transcripts.

3.    The Second Respondent made jurisdictional error by failing to have regard to a relevant or relevant consideration namely the guidelines contained in PAM–3.

4.    The Second Respondent made jurisdictional error by having regard to irrelevant considerations:

a)    The fact that the Applicant had become unlawful in Australia.

b)    The grounds for cancellation.

5.    By adopting a test that the Applicant was required to show that discretionary considerations “outweigh” the period of non-enrolment, the Second Respondent made error of law.

15    The application was lodged electronically and the first Court date given was 5 February 2015 at 9.30 am.

16    The application was supported by an affidavit of the appellant’s solicitor, simply annexing a copy of the Tribunal’s reasons.

17    Prior to 5 February 2015, solicitors for the Minister and for the appellant had agreed upon a timetable for the filing of evidence and submissions, and for the listing of the matter for final hearing sometime after 10 April 2015. The proposed orders were to vacate the “First Court Date” on 5 February 2015 and set a timetable for the Minister to provide a Court Book, the appellant to file and serve any affidavit containing additional evidence relied upon, including a transcript of the hearing before the Tribunal, and to file and serve any amended application properly particularised. They also set a timetable for the Minister to file and serve any evidence in reply, for the exchange of submissions, and for the fixing of a final hearing.

18    Early in the morning of 5 February 2015, the consent orders, duly signed, were forwarded to the Associate of the primary judge.

19    Counsel for the Minister attended at the first hearing date on 5 February 2015, and announced an appearance on behalf of himself and on behalf of the solicitor for the appellant. The appellant’s solicitor did not in fact attend that hearing, presumably (as the Minister’s submissions proffer) because he had assumed that orders would be made in accordance with the agreed proposed minutes of order. The primary judge however said that he did not see any “arguable ground” and that he was of the view that the matter should be dealt with summarily on that day, notwithstanding the proposed consent minutes and the timetable suggested.

20    In the absence of a representative of the appellant, he directed that the matter be heard on 6 February 2015 at 10:15 am. The solicitor for the Minister notified the solicitor for the appellant of what had transpired on 5 February 2015, so that initially a solicitor at 10:15 am, and then counsel when available at 11:30 am did attend on that hearing on behalf of the appellant. The primary judge at the earlier hearing on that day said to the solicitor then appearing for the appellant that he did not think that the application identified jurisdictional error, and in particular that it appeared to be a “pro forma notice of appeal”, so that “ordinarily [he] would take the course of dealing with it summarily”.

21    By counsel, the appellant abandoned ground 4 of his application but pressed the remaining grounds. There was, of course, no evidence of the character anticipated by the proposed consent orders and in particular no transcript of what transpired before the Tribunal available at that time.

22    Having regard to the terms of the grounds of appeal, and the proposed consent orders accommodating the provision of further information including the transcript, it is hard to understand why the primary judge did not accept the joint procedural proposal of the appellant and the Minister.

23    When counsel for the appellant appeared, the primary judge repeated that he did not see that any of the grounds had a sufficient prospect of success, and they appeared to be a “holding pattern”.

24    Counsel for the appellant in response made the following points or observations:

(1)    the application was specific to the appellant’s circumstances, and was not a pro forma document;

(2)    the Tribunal’s references to the Policy Advice Manual (PAM-3) was merely a “box-ticking exercise” and did not demonstrate careful consideration of the matters it required;

(3)    as to ground 1 of the application which asserted non-compliance with ss 359A and 359AA of the Act by the Tribunal;

(a)    the Tribunal’s reasons at [13] and [14] indicated that the PRISMS Database suggested the appellant had not seriously pursued any studies since December 2011, and had not been enrolled in any course of study for more than a year and that he had remained in Australia for reasons other than study;

(b)    the Tribunal recorded that the appellant had elected to respond to its concerns immediately, although the Tribunal reminded him of his right to seek more time to do so;

(c)    the appellant’s instruction was that he had not been offered the opportunity to take further time to respond, and the use of “reminded” by the Tribunal suggests the Tribunal did not clearly advise the appellant that he could seek more time to respond;

(d)    if the appellant’s instruction was correct, his assertions would be supported and demonstrated by the transcript of the hearing before the Tribunal; and

(e)    there were reasons, based on the notice of the PRISMS records, why the appellant could not reasonably have been expected to respond, or to have responded to, the asserted content of those records on the spot, or alternatively the Tribunal’s obligation under s 359AA to provide orally clear particulars of those detailed contents and their significance could only be assessed by reference to the transcript, and it was in dispute that the Tribunal had properly complied with ss 359A and 359AA.

25    The primary judge asserted that he understood those submissions. The submissions continued, dealing with grounds 3 and 5. As noted, ground 4 was not pressed.

26    The primary judge then indicated he did not need to hear from counsel for the Minister. The judgment was given, and orders made, including costs of the application (on the Minister’s application) to be paid to the Minister.

27    The primary judge also declined to make orders, on the application of the appellant through counsel:

(1)    to extend the time to apply for leave to appeal from his orders;

(2)    to permit the filing in the FCC of an affidavit exhibiting the transcript of the hearing before the Tribunal.

THE REASONS OF THE PRIMARY JUDGE

28    Section 359A(1) requires the Tribunal to put to the appellant in writing, so as to facilitate a response, clear particulars of the information the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. Section 359AA then provides a mechanism by which the Tribunal can put such adverse information to the appellant orally at the hearing provided that procedure is properly complied with.

29    Clearly a breach of s 359A reflects jurisdictional error on the part of the Tribunal: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [83]-[85]. There was no information to indicate that the Tribunal had provided a written notice under s 359A, and so it was necessary to address whether it had complied with s 359AA, in particular in relation to the information in the PRISMS Database about the appellant’s enrolment in courses of study.

30    What the Tribunal had said in the course of the hearing was clearly critically relevant to whether it had complied with the requirements of s 359AA.

31    The primary judge set out at [5] what the Tribunal said in its reasons at [12]-[14], and which read as follows:

12.    The decision record makes it clear that the evidence to which the notice related came from the PRISMS system. The Department’s file contains, at folio 16, details of the applicant’s various enrolments in registered courses in Australia. Those enrolments were in 3 different fields, namely IT, computer science and accounting. The courses were at several levels, namely diploma, graduate diploma, advanced diploma, bachelor and master levels. At the hearing, the applicant said that he had successfully completed a Diploma of Information Technology (Multimedia) course in June 2010. He later submitted a copy of this diploma.

13.    The Tribunal gave the applicant’s particulars of information in the PRISMS records showing the nature of his various enrolments in courses of study, and the reasons why 8 of these enrolments were cancelled. The Tribunal pointed out that the information was relevant to its consideration of his case because it suggested that he had not seriously pursued any studies since December 2011 and had not been enrolled in any course of study for more than a year. The Tribunal said that, this information could therefore lead it to conclude that he had remained in Australia for reasons other than study.

14.    When invited to respond to this information and reminded of his right to seek more time in which to do so, he elected to respond immediately. He indicated that, having successfully completed his first course of study, he had enrolled in a Graduate Diploma of Computer Science course in 2011. Although PRISMS records show that he “finished” this first enrolment in that course, he confirmed that the fact that he had 2 further enrolments in the same course meant that he had not gained the qualification.

[Emphasis of primary judge.]

32    The primary judge at [6] of his reasons noted:

Mr Young sought to advance that it would be necessary to go to the transcript in order to try and support the Grounds of error that he identified on the face of the decision.

33    However, despite that, the primary judge said that the Tribunal had clearly complied with the requirements of s 359AA and had given the appellant the necessary clear particulars required. His Honour also said that it was apparent that the appellant did respond and was aware of how that information could provide a basis to affirm the decision below. He also said it is not reasonably open to argue, given the process identified in the decision, that the appellant was not given advice as to the right to seek an adjournment. In short, despite the submission about the need to acquire and refer to the transcript of the Tribunal’s hearing, the primary judge rejected this contention by accepting the Tribunal’s description of its process.

34    Consequently, the primary judge concluded that that ground had no sufficient prospect of success.

35    It is not necessary to address the primary judge’s reasons for rejecting summarily grounds 2, 3 and 5 of the application.

CONSIDERATION

36    The primary judge plainly erred in his decision summarily to dismiss the application.

37    It is axiomatic that the primary judge was obliged to accord procedural fairness to the appellant: Taylor v Taylor (1979) 143 CLR 1; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 350 per Mason J; Allesch v Maunz (2000) 203 CLR 172 at 184-185 per Kirby J. Counsel for the Minister did not, of course, gainsay that proposition.

38    It is equally axiomatic that the requirements of procedural fairness include the provision of a reasonable opportunity for the appellant to present evidence and to make submissions: Cameron v Cole (1944) 68 CLR 571 at 589 per Rich J; Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-396 per Dixon and Webb JJ.

39    The power of the FCC summarily to dismiss an application under s 17A of the FCCA Act and r 13.10 of the FCC Rules is subject to that obligation: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 as there is no indication of a legislative intention to qualify or abrogate it.

40    It is desirable to expand upon those propositions.

41    At the level of general principle, it is as true now as it was in 1944 that:

It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.

(Cameron v Cole (1944) 68 CLR 571 at 589 per Rich J)

42    In Re JRL; Ex parte CJL (1986) 161 CLR 342 at 350 Mason J said:

A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed.

43    There are many more recent restatements of similar principles.

44    In International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at [54] French CJ, stated:

Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary.

45    The High Court’s decision in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 (Pompano) concerned the performance of functions and the exercise of powers by State Courts under the Criminal Organisation Act 2009 (Qld), and the compatibility of those functions and powers with Ch III of the Constitution. It was, in that sense, a very different case to the present. Nonetheless, the observations by various members of the Court in that case about the role of procedural fairness in the exercise of judicial power were unequivocal. At [156], the plurality said (omitting footnotes):

The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision-making but in terms which have more general and immediate application, “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.” To observe that procedural fairness is an essential attribute of a court’s procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them.

46    The reference to the observations of Gleeson CJ is of course a reference to what the Chief Justice said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam) at [37].

47    In Pompano, Gageler J expanded on the centrality of procedural fairness to the judicial function, and to the exercise of judicial power. At [194] his Honour said:

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.

48    The context of his Honour's observations was a statutory regime contended to require an essentially unfair process. Here, we are concerned with the exercise of discretionary powers which compel no particular outcome in their exercise. The underlying proposition inherent in his Honour's observations is all the stronger in those circumstances. While Pompano includes State Supreme Courts in these constitutional principles, there is no doubt whatsoever that a court constituted in accordance with Ch III of the Constitution, such as the Federal Circuit Court, is not empowered to exercise its powers, or perform its judicial functions, unfairly.

49    It is always necessary, as Gleeson CJ emphasized in Lam, to assess whether a process meets the necessary standards of fairness by examining the particular circumstances in which that process occurs, including (but not limited to) the statutory 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.

50    As to the statutory content here, the appellant correctly submitted that the Federal Circuit Court’s obligation to act fairly is not abrogated by s 17A of the FCC Act, nor by its counterpart, s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). Nor, given the authorities to which we have referred, could it be. The observations of French CJ and Gummow J in Spencer v Commonwealth of Australia (2010) 241 CLR 118 (Spencer) at [24] about the caution which attends the exercise of a power of summary dismissal 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 that party has invoked. In Spencer at [24], their Honours endorsed what was said in Agar v Hyde (2000) 201 CLR 552 at [57] (Agar):

Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

51    The “certainty” of which the Court speaks in Agar is a certainty based on proper and sufficient material, having listened with a mind capable of persuasion to what the parties have had to say, rather than a certainty simply borne of some inner judicial conviction.

52    Neither is there a basis to infer from the terms of Part 44 of the FCC Rules (to which we refer below) that there was an intention to abrogate the Court’s obligation to act fairly in considering, and exercising, the range of powers at its disposal under them.

53    The pressure of high volume decision making, such as that undertaken by the FCC in the migration jurisdiction, should be recognised. Essential tools in managing high volumes of cases include the show cause process in Part 44 of the FCC Rules, and the power outside that process, in s 17A of the FCC Act, summarily to dismiss a judicial review application. The existence and utilisation of those 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 Part 44 do not remove the obligation to give parties, whether represented or unrepresented, some reasonable time to regularise their materials and present their arguments.

54    It is no fault of an individual litigant in a migration judicial review that there are thousands of other migration cases, nor that there are insufficient resources to provide all impecunious applicants with legal representation. Much is at stake for an individual litigant in the migration jurisdiction in the sense of fundamental rights, including her or his liberty in Australia by reason of the mandatory detention regime in the Act. High volumes of cases should if anything give rise to extra caution to ensure no injustices are being done because of judicial workload pressures.

55    At [186] of Pompano Gageler J said:

Justifications for procedural fairness are both instrumental and intrinsic. To deny a court the ability to act fairly is not only to risk unsound conclusions and to generate justified feelings of resentment in those to whom fairness is denied. The effects go further. Unfairness in the procedure of a court saps confidence in the judicial process and undermines the integrity of the court as an institution that exists for the administration of justice.

56    These observations by his Honour are particularly apposite to this appeal. Processes such as those adopted by the primary judge in this matter tend to have the undesirable effects of which Gageler J wrote. These circumstances, or ones similar to them, should not occur again.

57    In this matter, the primary judge did not accord the appellant procedural fairness because no reasonable opportunity was given to present the transcript of the hearing before the Tribunal and to make submissions based upon it.

58    We have reached that view, in the particular circumstances, having regard to:

(1)    the application with the pro forma description did not expressly indicate that s 17A might be invoked by the Court;

(2)    the appellant, by his grounds of review, identified the need to procure and present that transcript to the FCC;

(3)    it was accepted, as evidenced by the proposed consent orders, that it was appropriate to procure that transcript (and other documents) for the fair presentation by the appellant of his application to quash the Tribunal decision;

(4)    the common position of the parties that a reasonable time to do that was not 24 hours from the first mentioned date, again as reflected in the proposed consent orders (no doubt recognising that it is not uncommon for the transcript to take some time to be procured);

(5)    the period of 24 hours between the first mention date and the following date was not reasonable without some understanding of the time required to procure that transcript;

(6)    the refusal of the primary judge to delay the “show cause” hearing to allow for the transcript to be produced.

(7)    the period of 24 hours did not afford the appellant’s legal representatives (including counsel) a fair opportunity to make submissions in relation to the proposed summary dismissal. For example, although counsel made what we consider to be reasoned and defensible submissions on the grounds before the FCC, critically, counsel was unable to address the legal principles applicable to an exercise of power under s 17A of the FCCA Act, or, for that matter, the principles that should attend the exercise of the power under r 44.11(a) of the FCC Rules. It is these powers which we have found miscarried. Had the Federal Circuit Court Judge given the parties (including the Minister) a reasonable opportunity to prepare for the proposed summary dismissal hearing, it is likely, in our opinion, that both parties would have come prepared with the relevant authorities on s 17A and r 44.11(a), which could and should have persuaded his Honour the course he proposed was not open to him.

59    The primary judge commenced his refusal to allow the opportunity to present the transcript of the Tribunal hearing with the remark set out at [32] above. The use of the words “error that he identified on the face of the decision” also demonstrates a misconception by his Honour. The argument was precisely the opposite: despite the face of the decision, the transcript would demonstrate the error. However, we have primarily based our conclusion on the failure to accord procedural fairness because the primary judge said in the course of the hearing that he understood that the appellant was asking for the opportunity to present the transcript and to make submissions based upon it, and the primary judge in the way he proceeded did not afford him that opportunity.

60    It is also desirable to make some observations about the proper application of the FCC Rules and the FCC forms. Rule 10.01 dealing with the “First court date” for a proceeding in the Federal Circuit Court, provides:

(1)    At the first court date, the Court or a Registrar is to give orders or directions for the conduct of the proceeding.

(2)    Without limiting subrule (1), the Court or a Registrar may hear and determine all or part of the proceedings.

(3)    The Court or a Registrar may make orders or directions in relation to the following:

(a)    the manner and sufficiency of service;

(b)    the amendment of documents;

(c)    defining of issues;

(d)    the filing of affidavits;

(e)    cross-claims;

(f)    the joinder of parties;

(g)    primary dispute resolution;

(h)    the admissibility of affidavits;

(i)    discovery and inspection of documents;

(j)    interrogatories;

(k)    inspections of real or personal property;

(l)    admissions of fact or of documents;

(m)    the giving of particulars;

(n)    the giving of evidence at hearing (including the use of statements of evidence and the taking of evidence by video link or telephone or other means);

(o)    expert evidence and court experts;

(p)    transfer of proceedings;

(q)    costs;

(r)    hearing date;

(s)    any other matter that the Court or Registrar considers appropriate.

61    Rule 10.03 of the FCC Rules contemplates the first court date will not be used finally to determine a proceeding. It provides:

At the first court date the Court or a Registrar may:

(a)    fix a date for final hearing; or

(b)    direct the parties to arrange with the Registrar a date for final hearing; or

(c)    fix a date after which either party may request a date for final hearing; or

(d)    remove the matter from the list.

62    Part 44 of the FCC Rules, which deals specifically with migration proceedings, and in particular applications in the FCC’s original jurisdiction under s 476 of the Act, contemplates modifications to the general process set out in Part 10.

63    Rule 44.11 provides:

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.

64    Rule 44.12 provides:

(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 proceedings 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.

65    In r 44.11(a), the term “immediate hearing” is used in contrast to the term “future hearing” in r 44.11(b) and accordingly, it can be accepted that the FCC Rules expressly contemplate, and empower, a Federal Circuit Court judge to exercise the powers set out in r 44.12 at the first Court date. This includes a power to give judgment in favour of an applicant immediately, as well as against an applicant. That the power exists however, says nothing about the legal constraints on its exercise.

66    The Federal Circuit Court Judge, and the Minister, relied on some words which appear on the form prescribed by the FCC Rules for the commencement of proceedings under s 476 of the Migration Act. That form provides for dates and times to be inserted reflecting the first court date allocated to a new proceeding. If an originating application is filed electronically, the details of the first court date will not be completed by hand in the Registry, and will instead appear on a cover sheet to the originating application which by r 2.07B(2) of the FCC Rules is taken to be part of the originating application. Whether the spaces for the first court date details are filled in or not, below those spaces appear the following words:

All parties and their legal representatives should attend this hearing. Default orders may be made if any party fails to attend. The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

67    Again, that text in the form cannot affect the legal constraints upon the exercise of the powers of the primary judge.

68    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 warrant their use to support the exercise of power in this instance by the primary judge.

69    More importantly, this statement is simply a summary of the powers available to the Court. Its inclusion on the form does not relieve individual judges of their obligations to exercise those powers reasonably, and in accordance with the requirements of procedural fairness. The powers to which the statement refers are all statutory powers. They are conditioned with the requirement that they be exercised reasonably (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [23]-[26]; [64]-[66]; [88]-[92]) and in accordance with principles of procedural fairness: see Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 (Jarratt) at [26] per Gleeson CJ. As Callinan J pointed out in Jarratt at [141]-[142], affording procedural fairness is not incompatible with statutory duties requiring decision makers to act effectively, efficiently and economically; indeed it is an aspect of such duties.

70    The statement on the form provides no immunity from the obligation on a judge to exercise her or his judicial powers reasonably and in a procedurally fair way. Legal representatives who are familiar with court processes, and commence to follow them in a regular way (as the appellant’s representatives in this appeal did) rightly will not expect that a judge would, without notice and of her or his own motion, deprive parties to a proceeding of any further time to regularise, refine and complete the case and contentions they wish to advance and instead summarily determine a claim at the first court date, especially where the Minister had accepted that was an appropriate course to follow.

71    We also consider that this was not an appropriate case for the exercise of the Court’s power, on the material and in the light of the submissions, to exercise the power summarily to dismiss the application under s 17A of the FCCA Act.

72    As noted at [50] above, s 17A is effectively in the same terms as s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The proper application of s 31A is explained in Spencer.

73    As counsel for the Minister pointed out, the plurality (Hayne, Crennan, Kiefel and Bell JJ) at [55]-[56] emphasised that s 31A of the FCA Act does not require the Court to consider whether a proceeding is “bound to fail” or “cannot possibly succeed” and that “it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases” such as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Their Honours added at [60] that, in determining whether the summary dismissal power should be exercised, full weight should be given to the expression “no reasonable prospect” and the Court may exercise power under s 31A “if, and only if, satisfied that there is ‘no reasonable prospect of success’”.

74    The Minister accepted that, if an applicant contends that his or her allegations of jurisdictional error could be made good with evidence (and those allegations would establish jurisdictional error if made out), the applicant should generally be permitted to file such evidence and the matter should proceed to a final hearing. Regrettably, that is not what happened here.

75    As noted above, the oral submissions on behalf of the appellant on 6 February 2015 made the contentions that the Tribunal had not complied with ss 359A and 359AA because it had not given the appellant particulars of the information tending to show that he had not enrolled for a particular time, because it had not in fact told the appellant that he could seek additional time to respond to the information provided by the Tribunal, and because it had not given the appellant proper particulars of the PRISMS data.

76    The primary judge, in the particular circumstances, could not have been satisfied to the level required by s 17A of the FCAA Act that the appellant had no reasonable prospect of success on those matters simply by reference to the Tribunal’s reasons. It was necessary to have recourse to the transcript specifically to address them, and in the absence of the appellant having a reasonable opportunity to present that transcript, the Tribunal was not in a position to decide that he had no reasonable prospect of showing that.

77    In this matter, the Minister had agreed with the appellant that he should be allowed time to present the transcript and so to have that opportunity. The affidavit of the appellant in support of his application to the FCC did not exhibit that transcript, but in conjunction with the specified grounds of appeal, and the submissions, it was clear that its presentation was to be critical to his application. That, too, was the effect of the jointly proposed procedural orders.

78    As the appellant’s counsel submitted, the primary judge erred in concluding at [18] of his reasons that there was no arguable issue of fact or law, and that the application was not tenable. In the light of the material referred to, it is difficult to understand how that conclusion could have been reached. It is sufficient, however, to say that it was clearly wrong.

CONCLUSION

79    For those reasons, the Court ordered that the appeal be allowed, that the orders of the FCC including as to costs be set aside, and that the matter be remitted to the FCC for rehearing according to law. We directed that the matter be reheard before a different judge because we do not see, in the particular circumstances, that the appellant or the Minister could be confident that the primary judge, having expressed such firm views, could bring an open mind to its reconsideration.

80    In this matter, we also ordered that the Minister pay the appellant’s costs of the application for leave to appeal, and of the appeal, because the Minister – as we have said, acting properly – nevertheless chose not to acknowledge error on the part of the primary judge at an early point or at all and, in our view, presented submissions which were directed to pointing out to the Court reasons why it might not allow the appeal in any event. It was, therefore, necessary for the appellant to prepare written submissions and appear to speak to those submissions on the appeal.

Associate:

Dated:    19 June 2015