FEDERAL COURT OF AUSTRALIA

CQX18 v Minister for Home Affairs [2019] FCAFC 142

ORDERS

THE COURT ORDERS THAT:

In the matter of NSD 558 of 2019:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The case management hearing listed before the Court for 9:30am on 21 August 2019 be vacated.

3.    The appeal be dismissed with no order as to costs.

In the proceedings to be commenced:

4.    Grant leave to the appellant to file and serve a Notice of Appeal in the form attached to these orders and marked "A", on or by 23 August 2019 and extend the time for filing that Notice of Appeal.

5.    Dispense with the filing fee in respect of the annexed Notice of Appeal.

6.    The appeal commenced by the filing of the annexed Notice of Appeal be allowed.

7.    The orders made by the Federal Circuit Court in proceedings No SYG1435/2018 on 19 July 2018 be set aside.

8.    The proceeding be remitted to the Federal Circuit Court of Australia, to be heard and determined according to law by a judge other than the Judge who previously heard the proceedings.

9.    There be no order as to costs of the appeal.

10.    The case management hearing listed before the Court for 9:30am on 21 August 2019, be vacated.

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

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    Following the adjournment of the hearing on 20 August 2019 in circumstances which we later explain, the Full Court was asked to make orders by consent under s 25(2B) of the Federal Court of Australia Act 1976 (Cth) disposing of the appeal from the decision of the Federal Circuit Court of Australia (the FCC) in CQX18 v Minister for Home Affairs [2018] FCCA 2015. By that decision, the FCC dismissed an application for judicial review of a decision by the Immigration Assessment Authority (the IAA) under Part 7AA of the Migration Act 1958 (Cth) to affirm a decision of the delegate of the Minister for Home Affairs (the Minister) not to grant the appellant a Safe Haven Enterprise visa.

2    The circumstances in which the consent orders are sought are unusual and warrant an explanation.

3    The appellant initially sought judicial review of the FCC decision in the Federal Court on the ground that the FCC had acted outside jurisdiction. At the heart of that application was the complaint that, having dismissed the application for judicial review of the IAA decision and given oral reasons at the time, the FCC did not produce a written version of those reasons for a substantial period of time after the expiry of the time within which to appeal the FCC decision. Justice Perram dismissed the application on the ground that, even assuming (which his Honour doubted) that the delay in producing written reasons could constitute a jurisdictional error, relief would be declined in the exercise of discretion given the availability of appellate remedies to the appellant which he had not (yet) pursued: CQX18 v Minister for Home Affairs [2019] FCA 386 at [27].

4    This matter originally came before the Full Court of the Federal Court on an appeal from the decision of Perram J (the first appeal). A copy of the transcript of the hearing before the FCC was included in the appeal book even though it had not been included in the material before Perram J.

5    At the hearing of the first appeal on 20 August 2019, the Full Court raised a number of concerns with Senior Counsel for the Minister arising from the FCC transcript as to whether the FCC judge had failed to accord procedural fairness to the appellant. After a short adjournment, Senior Counsel for the Minister very appropriately indicated that, while the Minister did not accept that Perram J erred in the manner in which he disposed of the application for judicial review, the Minister accepted that the FCC hearing had failed to proceed in accordance with the requirements of procedural fairness. In the circumstances, the Minister submitted that it would be appropriate for the issues to be dealt with in the following manner:

(1)    the first appeal should be discontinued or dismissed with no order as to costs;

(2)    the appellant should bring an application for extension of time within which to appeal from the FCC decision on the ground of a failure to accord procedural fairness at the FCC hearing; and

(3)    the Minister would consent to the extension of time and to the appeal against the FCC decision (the second appeal) with no order as to costs.

6    The matter was adjourned overnight in order to allow the appellant’s legal representatives to obtain instructions.

2.    THE CONSENT ORDERS

7    In line with the approach suggested by the Minister’s counsel, the parties propose consent orders in the first appeal from the decision of Perram J in the following terms:

1. The appeal be dismissed.

2. The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

3. Each party bear their own costs of the proceedings.

4. The case management hearing listed before the Court for 9:30am on 21 August 2019, be vacated.

8    The parties also propose consent orders in the second appeal against the FCC decision in the following terms:

5. Grant leave to the appellant to file and serve a Notice of Appeal in the form attached to these orders and marked "A", on or by 23 August 2019 and extend the time for filing that Notice of Appeal.

6. Dispense with the filing fee in respect of the annexed Notice of Appeal.

7. The appeal commenced by the filing of the annexed Notice of Appeal be allowed.

8. The orders made by the Federal Circuit Court in proceedings No SYG1435/2018 on 19 July 2018 be set aside.

9. The proceeding be remitted to the Federal Circuit Court of Australia, to be heard and determined according to law.

10. There be no order as to costs of the appeal.

11. The case management hearing listed before the Court for 9:30am on 21 August 2019, be vacated.

9    In this regard, as the Full Court held in Bradken Limited v Norcast S.AR.L [2013] FCAFC 123; (2013) 219 FCR 101 at [2]:

… the exercise of the power to allow an appeal by consent is dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision below.

10    We are satisfied that it is appropriate (subject to appropriate changes) for the proposed consent orders in the second appeal to be made on the basis that the FCC judge failed to afford the appellant procedural fairness at the hearing in the exercise of Commonwealth judicial power in all of the circumstances. These circumstances include the following.

(1)    The appellant did not have legal representation in the Federal Circuit Court.

(2)    He appeared at the hearing of the application for judicial review via video-link from immigration detention without an interpreter present. The interpreter was located in the courtroom in Sydney.

(3)    The transcript of the hearing before the primary judge demonstrates difficulties with the video-link transmission of the hearing.

(4)    The appellant raised the question of unfairness at the hearing as he had to make his submissions “all on my own” (i.e. from a remote location).

(5)    There was real doubt as to whether the appellant received the Minister’s written submissions or the court book. While the Minister’s counsel offered to assist the Court about service of the court book on the appellant, the primary judge considered it sufficient to have explained the contents of the court book to the appellant before admitting it into evidence. As such, no steps were taken to clarify one way or the other whether these had been served.

(6)    The appellant explained to the primary judge in any event that he could not read the Minister’s submissions without the assistance of a translator. The Minister’s counsel acknowledged in his submissions before the primary judge that it was not evident that his written submissions had been translated and that “it may be that the applicant, given the need for interpreting, may not have had the opportunity to consider those submissions fully.”

(7)    The appellant explained that there were inaccuracies in the translation of his affidavit which he wanted to correct and he sought a short adjournment of half an hour to an hour to do so with the assistance of the interpreter. However, his application for an adjournment was not dealt with by the primary judge and his affidavit was taken as read without the appellant being afforded the opportunity to correct it by evidence.

11    We also wish to express our concern that:

(1)    the primary judge delivered an ex tempore judgment which was not translated by reason of an instruction by the primary judge to the interpreter not to do so in circumstances where there was no apparent effort thereafter by the primary judge to have his reasons reduced to writing timeously until they were requested;

(2)    no orders were made having the legal or practical effect of deferring the commencement of the period within which an appeal must be instituted (see CQX18 v Minister for Home Affairs [2019] FCA 386 at [14] (Perram J); Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26] (the Court)); and

(3)    written reasons were not published until 75 days after delivery of the ex tempore judgment and 54 days after the expiry of the time within which an appeal could be instituted as of right.

12    We also note in this regard that Perram J found at [7] that the applicant does not speak good English and that “I do not hesitate to find as a fact for the purposes of the present proceeding that the Applicant would not have been able either to understand what [the primary judge] was saying or to have been able to reduce what he was saying to writing.” His Honour’s findings in this regard are amply borne out by a reading of the transcript of proceedings before the FCC which was before this Court.

13    We would, however, emphasise that nothing we have said should be understood as discouraging the proper, efficient and fair use of ex tempore judgments in appropriate cases.

14    We would also emphasise that nothing we have said is intended to imply any criticism of counsel or solicitors for the Minister before the FCC, before Perram J, or before this Court.

Associate:

Dated:    21 August 2019

"A"

Form 121

Rule 36.01(1)(a)

Notice of appeal from the Federal Circuit Court of Australia

No.          of 20     

Federal Court of Australia

District Registry: New South Wales

Division: General

On appeal from the Federal Circuit Court of Australia

CQX18

Appellant

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another

Respondents

To the Respondent

Time and date for hearing:

Place:

Date:

The Appellant appeals from the whole of the judgment of the Federal Circuit Court of Australia given on 19 July 2018 at Sydney in matter SYG 1435 of 2018.

Ground of appeal

In conducting the hearing, the Primary Judge denied the Appellant procedural fairness and thus fell into jurisdictional error.

Particulars:

(i)    The Appellant was unrepresented and appeared by video-link, with an interpreter appearing separately by telephone link.

(ii)    The Appellant said that he had not been provided with the Court Book. Nonetheless the Primary Judge did nothing to ensure the Appellant received the Court Book, nor that he had time to peruse it, but rather just allowed it to be admitted into evidence.

(iii)    The Appellant sought an adjournment on the basis that the only copy of his own affidavit was in English and he could not understand it. However, this was denied by the Primary Judge.

(iv)    At one point in the hearing the Appellant said that he couldn’t hear because the video-link was frozen, and the interpreter couldn’t keep up with the interpretation. However, the Primary Judge did not seek to have the missing parts re-interpreted.

(v)    The Appellant said that he was not sure whether he had received the Respondent’s submissions. Nonetheless the Primary Judge did nothing to ensure that they had been received, nor did he allow an adjournment to enable the Appellant to view and consider the submissions. He simply asked counsel for the Respondent to summarise them.

(vi)    At one point the Appellant indicated that he was having trouble with the interpretation (what he called ‘the translation’). However, the Primary Judge did nothing to remedy that.

(vii)     At one point counsel for the Respondent indicated to the Primary Judge that the Appellant had indicated that there were translating errors in his affidavit. However, the Primary Judge did nothing to investigate or remedy that, by, for example, allowing the Appellant to correct the errors.

(viii)    The Primary Judge ordered the interpreter not to interpret his ex tempore reasons for decision.

(ix)     The Appellant did not understand the nature of the orders against him, but the Primary Judge refused to explain them to him.

Orders sought

1.    The Appellant be granted an extension of time to file and serve this Notice of Appeal to 23 August 2019.

2.    The Appeal be allowed.

3.    The matter be remitted to the Federal Circuit Court of Australia to be heard according to law.

Appellant’s address

The Appellant’s address for service is: c/- Frederick Jordan Chambers, 53 Martin Place, Sydney, NSW 2000

Email: victor@victorkline.com

Service on the Respondent It is intended to serve this application on all Respondents.

Date: 20 August 2019

Schedule

No.          of 20     

Federal Court of Australia

District Registry: New South Wales

Division: General

Respondents

Second Respondent:     The Federal Circuit Court of Australia