FEDERAL COURT OF AUSTRALIA

SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Circuit Court of Australia made on 26 February 2015 be set aside.

3.    The proceeding be remitted to the Federal Circuit Court of Australia differently constituted to be heard and determined according to law.

4.    The first respondent pay to the applicant costs of the application for leave to appeal and this appeal save that the Taxing Officer should allow one counsel fee for counsel fees for appearing on the two appeals heard today.

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

REASONS FOR JUDGMENT

1    Following a hearing on 3 June 2015 the Court made an order allowing the appeal and certain consequential orders. The Court announced that it would publish its reasons at a later date. These are those reasons.

2    The appellant is an ethnic Tamil from Sri Lanka. In 2012 he applied for a protection visa. In August 2013 his application was refused by a delegate of the Minister for Immigration and Border Protection (“the Minister”). He challenged the delegate’s decision in the Refugee Review Tribunal (“the Tribunal”). Following a hearing, in December 2014, the Tribunal determined, in January 2015, to affirm the delegate’s decision.

3    The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court (“the FCC”). The application, which had been prepared personally by the appellant, contained the following grounds:

“The RRT has failed to evaluate, consider and make a finding in respect of one of my central claims that I am at risk of harm due to my cousin and her husband being shot by the Army and the abduction of my Aunt and subsequent problems for me. This claim expresses and implies that I would be harmed by the Sri Lankan authorities.

The RRT has failed to assess and consider that the one of my central claims and the one of my central claims cumulatively with my race and as a failed Tamil asylum seeker on my arrival would place me at risk or not in respect of this claim in terms of s.32(2)(a) and (aa) in its decision.

Therefore the RRT has not made any finding as to whether I would be harmed in respect of this claim in terms of s.32(2)(a) and s.32 (2)(aa) in its decision.

Therefore the RRT declined its jurisdiction to me.”

4    The appellant’s application was listed for a ‘first court date’ on 26 February 2015 at 9:30 am. Immediately below this date and time the following notice appeared:

“All parties or 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.”

5    The hearing was called on at 10:10 am on the appointed day. The appellant was present in person. He had no legal representation but had the assistance of an interpreter. The Minister was represented by a solicitor.

6    After the interpreter had been sworn the following exchange occurred:

“HIS HONOUR:    SZWBH, the court has looked at the grounds in your application and having read the decision of the tribunal, it doesn’t appear to have a sufficient prospect of success to warrant a further hearing date and the court is minded to consider whether your application should be summarily dismissed now. To make clear the position, I have a concern that the grounds you’ve identified do not properly identify any jurisdictional error. Is there anything you wish to put to me as to why there is a jurisdictional error by the tribunal?

THE INTERPRETER:    Yes, I wish to put to the court certain things.

HIS HONOUR:        Now is your opportunity to do so.

THE INTERPRETER:    I described to the Department of Immigration that my younger brother, younger sister and her husband were killed. I also submitted that certificates relevant to those killings and I put forward a claim stating that because of those incidents the police will be targeting me as I was seen as being opposed to the police.

HIS HONOUR:        Yes.

THE INTERPRETER:    Therefore, I plead to this court that I have come here to seek refuge and protection, and therefore, I urge this court to grant me protection and allow me to stay in this country.

HIS HONOUR:        Is there anything else you want to say as to why there was a jurisdictional error?

THE INTERPRETER:    I have certain doubts whether the tribunal delved into an inquiry as to my younger brother was killed.

HIS HONOUR:        Yes.

THE INTERPRETER:    There are more – therefore, I ask your Honour to consider my claims and look into the decision and make a favourable decision.

HIS HONOUR:        Yes. I’m confined to jurisdictional error by the tribunal. Is there anything else you can put to me as to why there’s jurisdictional error?

THE INTERPRETER:    I do not have anything further to tell your Honour.

HIS HONOUR:        Thank you SZWBH.”

7    At this point the Minister’s solicitor sought to be heard. Whilst acknowledging the need for applications to be dealt with efficiently, she cautioned against the immediate summary dismissal of the proceeding given that the primary judge only had before him the appellant’s application, the Minister’s initial response and the Tribunal’s reasons for decision. The Minister’s solicitor submitted that:

“To the extent that the applicant raises with your Honour today that he has submitted various documents and/or claims which he feels may or may not have been dealt with, we have not yet had an opportunity to prepare a court book in the process of which we often undertake a forensic task of assessing those claims and your Honour would, of course, benefit from having those documents before you. So it may well be the case that simply with the decision in front of your Honour, there doesn’t appear, prima facie, to be an error. There can be errors constituted by failure to consider documents at all as opposed to a failure to attribute weight or a failure to look properly at the claim which don’t necessarily emanate until such time as we have prepared all the evidence before your Honour so that your Honour has the benefit of seeing what the tribunal did and didn’t have before it. I should also indicate to your Honour that this is a matter as is often the case with Sri Lankan applicants which may or may not be affected by the decision of North J in WZAVN with which your Honour will be familiar. And it may be the case that submissions can be made to your Honour that the matter is distinguishable from the decision of North J. But, again, it would be remiss of me on behalf of the Minister to not address those matters with your Honour and for them not to be fully ventilated before your Honour without the applicant having that full opportunity. So whilst I readily appreciate that your Honour may be disposed to deal with the matter this morning and, of course, that’s entirely your Honour’s prerogative, it is the case in these matters that they are not always what they seem and while the ultimate conclusion may be very well correct that there is no jurisdictional error, often times one does actually have to go through the working out, if you like, in order to still come to that conclusion. Given that, if the matter were the subject of an application for leave to appeal to the Federal Court, the Federal Court would order the Minister to put on that full complement of documents and the matter would then be reviewed with the benefit of those documents that your Honour didn’t have before him and that’s quite standard. So I raise those matters. I’m completely in your Honour’s hands but at least in relation to this applicant, that’s the Minister’s position.”

8    The primary judge then asked whether the Minister wished to amend his response to the application. The solicitor responded that the response said no more than that the appellant’s application did not, on its face, establish a jurisdictional error. She stressed, however, that this was “the initial response” which had been filed “as a holding defence until such time as the full complement of evidence can be put on.” She again raised the possibility that additional material may require a variation of the Minister’s initial position.

9    The Minister’s solicitor also reminded the Court “that in these matters where applicants are unrepresented, the duty to file … evidence before the court is one that the Minister undertakes and so it can’t be said to be the case that the applicant has as yet not put on that full complement of evidence because the Minister is uniquely placed as we have the department file and are also then provided with the file of the … Tribunal.”

10    Having heard these submissions the primary judge proceeded to deliver an ex tempore judgment. He ordered that the application be summarily dismissed with costs. The Minister’s solicitor enquired as to the legislative foundation for the order. His Honour responded that he was acting under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”) and Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

11    The hearing concluded at 10:40 am.

12    The primary judge’s ex tempore reasons were subsequently published: see SZWBH v Minister for Immigration & Anor [2015] FCCA 436. His Honour’s reasons commenced by setting out the appellant’s grounds of judicial review. He then summarised part of the short exchange which had occurred between him and the appellant and noted that the appellant had raised concerns that the Tribunal had not taken into account the death of his younger brother and that the Tribunal had not addressed his claims. Next his Honour set out some passages from the decision of the High Court in Spencer v The Commonwealth (2010) 241 CLR 118 in which that Court had (at 131-2 and 141) expounded principles which should guide the exercise of the power of summary dismissal, conferred on this Court by s 31A of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”). That section is in substantially the same terms as s 17A of the FCCA Act.

13    His Honour then summarised the Tribunal’s reasons for affirming the delegate’s decision and concluded (at [14]) that:

“It is clear, from the decision of the Tribunal, that it took into account the claims of the applicant and that the findings it made were open to the Tribunal and it is clear that the Tribunal assessed the claims in relation to being a failed asylum seeker and made findings in relation to the absence of significant harm in relation to the applicant being returned to Sri Lanka.”

14    His Honour acknowledged the submissions made by the Minister’s solicitor and then said (at [15]) that:

“Taking further steps in the proceedings will give rise to the incurring of further costs for the parties and occupy further hearing time of the Court. In circumstances where the Court is clearly satisfied that the proceedings are doomed to failure, it is not in the interests of the parties or in the interests of the administration of justice to adjourn for further hearing a matter that clearly appears on its face doomed to failure.”

15    His Honour declared himself satisfied that the proceedings had no reasonable prospect of success.

legislation

16    Section 17A of the FCCA Act relevantly provides that:

“17A Summary judgment

(1)    …

(2)    The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.”

17    Rule 13.10(a) of the Rules provide that:

“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

(a)    the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; ...”

THE APPEAL

18    The order made by the primary judge was interlocutory in nature: see Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055 at [16]. As a result it was necessary for the appellant to obtain leave to appeal to this Court: see s 24(1A) of the FCA Act. The Minister consented to the grant of leave and the Court made the necessary order.

19    The appellant has appealed to this Court on six grounds. The first ground alleged that the FCC had denied the appellant natural justice. The second and third grounds alleged that the FCC had misconstrued and misapplied s 17A of the FCCA Act and Rule 13.10 of the Rules. The remaining grounds (4, 5 and 6) related to the question of whether a factual basis existed for finding that the appellant was a member of a particular social group constituted by his own family. Counsel for the appellant advised the Court that these remaining grounds were not relied on for the purpose of the appeal other than as providing particulars of matters which might have been relied upon by the appellant had the judicial review application proceeded to trial.

20    It will be convenient to turn immediately to ground 3. It alleges that the FCC “erred in law by making a finding that the application was doomed to failure in circumstances where that finding was not open because there was no evidence formally before the Court and the Court had not afforded the [appellant] an opportunity to file evidence in support of the application.”

21    The Minister conceded that this ground should be upheld. He accepted that, when questioned by his Honour, the appellant said sufficient to indicate that he had made claims which had not been considered by the Tribunal and that, as the Minister’s solicitor had submitted, one could not rule out the possibility that this assertion was correct without first considering the material which was before the Tribunal but not the primary judge. The Minister accepted that the primary judge should not have dealt with the matter summarily and should have given the appellant the opportunity to develop his argument and, if he could, lead evidence to make good his claim.

22    The Minister’s concession is properly made and the appeal should be allowed.

23    The principal order from which the appeal is brought appears, in terms, to be made under Rule 13.10(a). It may, however, be accepted that the primary judge purported also to act under s 17A of the FCCA Act. Both provisions empower the Court summarily to dismiss an application pending before it.

24    It may readily be accepted that the criterion for the exercise of the power is less onerous than that which previously obtained at common law: see for example Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 at [26] (Mansfield J). That said, the power must be exercised cautiously: cf Spencer at 131. The Court should not act to prevent an applicant prosecuting his or her case in the normal way unless the need for summary judgment is clear: see Hicks v Ruddock (2007) 156 FCR 574 at 582 (Tamberlin J). It will, ordinarily, not be appropriate to grant summary judgment in a case in which there is a real dispute between the parties as to issues of fact: see Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 at [10] (Besanko J).

25    The grounds on which the appellant made his application to the FCC did not clearly allege jurisdictional error on the part of the Tribunal. This is, perhaps, not surprising given that the appellant was acting without legal assistance and had an imperfect understanding of the English language. So much may be inferred from the terms of the application and the fact that the services of an interpreter were required at the hearing. It is also relevant to note, as the Tribunal had done, that the appellant had been a cleaner in Sri Lanka and had only been educated to year 11 standard.

26    The appellant had been given no notice that he would be required to deal with a summary judgment application on the “first court date”. No application had been made by the Minister for summary judgment and the appellant had not been given notice that the Court might be minded to make such an order of its own motion. In these circumstances it may be accepted that the appellant was ill-equipped to respond adequately to the primary judge’s request that he identify jurisdictional errors made by the Tribunal and defend his position against the summary disposition of his application.

27    Despite acting under these disabilities, the appellant did, in our view, say sufficient, in response to the primary judge’s questions, to take his application outside the realm of summary judgment.

28    At the very least the appellant raised the possibility, in his oral submissions, that the Tribunal had failed to consider claims made to the Department relating to the killing of the appellant’s younger brother, younger sister and her husband. He referred to certificates relating to those killings. The Tribunal had identified a number of documents which it had considered but which were not available to the FCC. These documents included the appellant’s entry interview, his application for a protection visa (attached to which was a statutory declaration), the delegate’s decision and written submissions which included a statement made by the appellant: see Tribunal reasons at [11]. The appellant’s claims relating to the killing of his three relatives may well have been referred to in one or more of these documents. It is also possible that the claims had been made during the hearing conducted by the Tribunal. Whether or not that had happened could only be confirmed by reference to the transcript of the hearing.

29    What is important, for present purposes, is that all of this material was, as the Minister’s solicitor had advised the Court, available and could have been incorporated in a court book which the Minister was willing to prepare. The primary judge chose to dismiss the proceeding summarily without awaiting the collection of this material.

30    At the time the impugned orders were made there may well have been scope, as commonly occurs, for grounds of review to be refined with the assistance of a pro bono lawyer.

31    The submissions made by the Minister’s solicitor were prescient. It may well have been that, once all of the relevant material had been collected and placed before the FCC, no support for the appellant’s claims would have been forthcoming. Unless and until, however, that material was before the Court and considered by it, the possibility remained that a factual basis for establishing jurisdictional error existed. In such circumstances, it was not open to the FCC to conclude that the application before it was “clearly … on its face doomed to failure” and, as a result, had no reasonable prospect of success. Nor was it open to the FCC to find that the Tribunal had taken into account all the claims made by the appellant.

PROCEDURAL FAIRNESS

32    Serious issues relating to the procedural fairness of proceedings must arise in circumstances such as the present in which an unrepresented applicant whose primary language is not English and who may be assumed to be unfamiliar with curial processes is called on, without notice, to mount arguments resisting the summary dismissal of his application.

33    There was some debate between the parties to this appeal about whether the course adopted by the FCC involved a denial of procedural fairness to the appellant.

34    To consider the respective contentions about procedural fairness, it is necessary to return to the Rules, consider some matters of general principle and then to apply them in the present circumstances.

The Federal Circuit Court Rules

35    Rule 10.01 of the Rules, dealing with the “first court date” for a proceeding in the FCC, 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.”

36    Rule 10.03 of the 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.”

37    Part 44 of the Rules, which deals specifically with migration proceedings, and in particular applications in the FCC’s original jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Migration Act”), contemplates modifications to the general process set out in Part 10.

38    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.”

39    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 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.”

40    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 Rules expressly contemplate, and empower, an FCC judge to exercise the powers set out in r 44.12 at the first court date. As we note in the example we give below at [58], 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.

General Principles

41    Although we propose to allow the appeal on the basis of error in the approach of the Federal Circuit Court to s 17A of the FCC Act, we consider it is appropriate to deal in some detail with this aspect of the appeal, lest it be thought we were otherwise acquiescing in the process adopted by the Federal Circuit Court in each of these proceedings.

42    We have set out the applicable general principles of procedural fairness, their centrality to the exercise of judicial power under Ch III of the Constitution, and their application in the context of the exercise of jurisdiction by the Federal Circuit Court under s 476 of the Migration Act in Shrestha v Migration Review Tribunal [2015] FCAFC 87 at [41] to [56]. We adopt those observations in these reasons.

43    We do consider however it is worth extracting again and repeating the observations of Gageler J in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 107:

“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.”

44    These observations by his Honour are particularly apposite in the current 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.

The Federal Circuit Court Forms

45    The primary judge, and the Minister, referred to a cautionary statement which appears on the form prescribed by the Rules for the commencement of proceedings under s 476 of the Migration Act and which has been set out above at [4]. 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 Rules is taken to be part of the originating application.

46    The primary judge relied on the cautionary statement as a basis for rendering it appropriate to summarily dismiss the application at the first court date. He said that:

“The Court identified to the applicant that it was minded to deal with the matter summarily in light of the notification that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings.”

47    The Minister submitted that the appellant “having signed and filed the form must be taken to have read it himself or had some assistance in reading it”, and he was therefore “on notice that he might need to argue his case at the first court date”.

48    We do not accept these submissions. 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.

49    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 348-350; 362-3; 370-1 and in accordance with principles of procedural fairness: see Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at 56-7 per Gleeson CJ.

50    Although statements such as those on these forms might be seen as one manifestation of the obligations now contained in s 37M of the FCA Act, as Callinan J pointed out in Jarratt at 89 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.

51    We consider the position is not materially different where a party is legally represented. 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 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.

52    Aside from the submission about the nature and content of the form signed by the appellant, and what he should be taken to know because of it, the Minister otherwise relied on the fact that the appellant did not say to the primary judge that he needed more time to deal with the judge's own proposition that the applicant’s proceeding should immediately and summarily be dismissed, or suggest he had been taken by surprise.

53    This submission is unpersuasive.

54    As we have said where a party is legally represented, for a judge to proceed of his or her own motion and without notice, to dismiss a judicial review proceeding summarily at the first return date, is likely to be an unfair process and inconsistent with the proper exercise of judicial power.

55    For a judge to proceed in that manner against a party who is an unrepresented Tamil asylum seeker is, to use the language of Gageler J in Pompano, “anathema to Ch III of the Constitution”.

56    Although one must take care to allow for exceptional or unusual circumstances where the power in r 44.11(a) of the Rules may appropriately be exercised, it is difficult to conceive of circumstances where a court would be justified in summarily dismissing a judicial review proceeding at a first court date, of its own motion and without prior notice, where both parties have appeared.

57    At the very least, notice in advance of some kind should be given. The notice contemplated by the Rules for a respondent to seek summary dismissal (see r 6.19(a) and the requirement for three days' notice) gives some indication. 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.

58    The matter might be tested by supposing the Court had announced at the first court date and without possession of a court book or any material other than the application for review and the Tribunal decision, that it proposed to exercise the power conferred by r 44.12(c) of the Rules in favour of the appellant, inviting the Minister to say anything he wished as to why that should not occur and then proceeding to make orders setting aside the Tribunal’s decision. It cannot be imagined that such a process would be characterized as procedurally fair, notwithstanding the internal state of certainty in a judicial mind that the Tribunal’s decision was unlawful.

59    There is no basis in principle to see that circumstance as any different: it merely reverses the identity of the party whose rights and interests are affected. Posing the example does, however, reveal the extremity of what has occurred in the current appeal.

60    Contrary to the Minister's submissions, the appellant may not have been in a position to know that he should, with good reason, have been “surprised” by what was occurring in his case, let alone protest against it. The evidence does not reveal he had been to the FCC, or any other court in Australia, before. He was in that sense entirely in the hands, and at the mercy, of the Court.

61    In any event, there is no basis in the evidence for the Court to infer that a protest would have made any difference to the course the primary judge had decided to take. It made no difference when counsel in Shrestha protested, and we can see no reason to infer that anything said by an unrepresented Tamil asylum seeker would have been capable of diverting the primary judge from the course he appeared determined to take in this proceeding. We are confirmed in that view because the appellant did, in fact and in clear terms, put forward an explanation of the ground for his challenge to the Tribunal decision (a failure to deal with a claim), which his Honour proceeded to ignore.

62    This ground should be upheld.

COSTS

63    The appellant sought an order that the Minister pay his costs of the appeal.

64    The Minister opposed this application because he had not resisted the making of an order allowing the appeal.

65    The Minister’s concession was only conveyed to the appellant a few days before the hearing when his written submissions were filed. It was, therefore, necessary for counsel for the appellant to prepare written submissions and otherwise ready himself for the hearing. This was the second of two appeals which were heard sequentially on 3 June 2015 and in which the same counsel appeared for the appellant and the Minister. The other was Shrestha.

66    In these circumstances we consider that the appropriate order is that the appellant should have his costs of the appeal but only one fee should be allowed for counsel’s appearance on 3 June 2015.

CONCLUSION

67    The Court is particularly grateful to counsel who appeared pro bono for the appellant in this Court. His submissions were of considerable assistance.

Associate:

Dated:    19 June 2015