FEDERAL COURT OF AUSTRALIA

Haque v Minister for Immigration & Citizenship (No 2) [2010] FCA 529

FEDERAL COURT OF AUSTRALIA

Haque v Minister for Immigration & Citizenship (No 2) [2010] FCA 529

CORRIGENDUM

1                     This judgment was originally published with the medium neutral citation ‘Haque v Minister for Immigration & Citizenship [2010] FCA 529’.  This has been amended to include ‘(No 2)’: Haque v Minister for Immigration & Citizenship (No 2) [2010] FCA 529.

Associate:

Date:    23 July 2010

THE COURT ORDERS THAT:

1.                  The orders made on 13 April 2010 be set aside.

2.                  The appeal be listed for hearing on 18 June 2010 at 9.00am (Perth time).

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The first respondent, the Minister For Immigration and Citizenship, by a motion dated 21 April 2010, seeks orders, pursuant to order 35, rule 7(1) of the Federal Court Rules, to set aside the orders of the Court made on 13 April 2010 pursuant to judgment in Haque v Minister for Immigration and Citizenship [2010] FCA 346.  Orders pursuant to that judgment have not yet been entered.  The matter originally came before the Court on appeal from a judgment of Lucev FM of 20 July 2009. 

2                     The parties filed extensive written submissions on the appeal.  At the appeal, in the course of lengthy argument, it was thought appropriate to deal with two threshold issues namely, whether the appellant required leave to introduce new grounds of appeal and if so, whether such leave would be granted in whole or in part.  In the course of nearly a half-day of argument, the merits of the case, insofar as they were relevant to the prospects of success on the point of leave, were canvassed. 

This included argument upon the applicability of section 66(2)(d)(iv) of the Migration Act 1958 (Cth) (the Act).  In due course, I delivered judgment on 13 April 2010 in which I held that leave was required.  Leave was granted in only one respect, namely, the ground concerning section 66(2)(d)(iv) of the Act.  However, I then proceeded in the reasons for judgment to dispose of the substantive appeal on that ground.  That, it seems to me, was an error on my part. The question now is what can and should be done, if anything, to correct that error.

3                     The first respondent submits that full oral argument did not occur on the merits and that, if it had, further detailed oral argument would have been put on the question, particularly, of the evidentiary and persuasive burden of establishing whether the requirement under section 66(2)(d)(iv) was or was not discharged.  The first respondent submits that he would, amongst other things, have put detailed argument on authorities such as Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424, a recent judgment of Jagot J in this court.  I accept this submission.  That the first respondent was deprived of this opportunity resulted, in my view, in a significant denial of procedural fairness: Re Refugee Review Tribunal: Ex Parte Aala (2000) 204 CLR 82 at [35] – [42] per Gaudron and Gummow JJ.

4                     The first respondent submits, in my view correctly, that Stead v State Government Insurance Commission (1986) 161 CLR 141, which is relied upon by the appellant, is distinguishable from this case.  Stead involved an appeal to the High Court from a judgment where there had been a trial involving a denial of procedural fairness.  Questions arose as to whether or not a properly conducted trial could have produced a different result and whether, in the circumstances, a new trial ought be ordered.

5                     It seems to me that the situation in Stead was quite different from that confronting the court here.  The motion before me is not by way of appeal.  The motion is brought pursuant to order 35, rule 7(1), which provides relevantly that where a judgment or order has not been entered, it may be varied or set aside.  I do not think it is satisfactory for the Court to hear argument on the legal question going to the evidentiary or persuasive onus, which has been raised by the first respondent, so as to determine whether it could or could not have resulted in a different judgment, and, if answered in the positive, to then set aside the judgment and orders and then re-hear the same argument in the appeal.  The appropriate course is to set aside the judgment and the orders made on 13 April 2010.  The appeal may then be set down for hearing in the normal way, in respect to the ground inwhich leave was granted.  To do otherwise, in my opinion, would leave the first respondent with a real sense of grievance.  That, of course, is inimical to the administration of justice. 

6                     For these reasons, I would grant the motion and make orders in terms of the motion.

Associate:

Dated:         1 June 2010