FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170

THE COURT ORDERS THAT:

The application to vacate the orders in Patel v Minister for Immigration and Citizenship [2012] FCA 958, Patel v Minister for Immigration and Citizenship (No 2) [2012] FCA 1020 and Patel v Minister for Immigration and Citizenship (No 3) [2012] FCA 1021 is dismissed.

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

REASONS FOR JUDGMENT

1    This judgment arises from a sequence of unfortunate events in the conduct of litigation. In many ways, in light of the manner of electronic communication between parties and the Courts, it is surprising that an issue of this nature has not previously been (to my knowledge) the subject of judicial comment and decision.

2    In summary, in respect of an interlocutory application (to be decided on the papers) to reopen argument in an appeal, submissions were emailed on behalf of the appellant to a Deputy Registrar of this Court and forwarded to my then Associate, but for reasons of which I am unaware were neither brought to my attention nor placed on any part of the Court file before dispositive orders were made. At the same time, the submissions were not lodged by the appellant in accordance with the Federal Court Rules 2011 (Cth) (“Federal Court Rules”). I dismissed both the interlocutory application and the substantive appeal, and ordered costs against the appellant.

3    It is clear that events relating to the communication of the submissions (or, more correctly, the failure of such communication) were not personally the fault of either Mr Patel or the Minister. To that extent, it is not in dispute that the appellant has not been heard in respect of his interlocutory application.

4    The appellant has submitted that, in light of these events, all orders associated with these proceedings be vacated and the entire appeal be reheard by this Court.

5    These events raise issues including the nature of the Court file in this Court, the power of the Court under the Federal Court Rules to deal with a judgment which has been decided on an incorrect premise but has been entered, and the power of the Court to reopen argument after an appeal has been heard and judgment reserved. Before turning to these issues it is useful to set out the background facts.

Background

6    In Patel v Minister for Immigration and Citizenship [2012] FCA 958, exercising the appellate jurisdiction of this Court in accordance with s 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”), I dismissed an appeal from a decision of a Federal Magistrate in which the Federal Magistrate had affirmed the decision of the Migration Review Tribunal that the appellant’s visa had been validly cancelled. In a separate order in Patel v Minister for Immigration and Citizenship (No 2) [2012] FCA 1020 I dismissed a separate interlocutory application filed by the appellant after the hearing of the appeal, in which the appellant had sought leave to reopen the argument in the appeal limited to the relevance of the High Court decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 to issues before the Court. That interlocutory application was filed on 4 November 2011.

7    As I explained in Patel v Minister for Immigration and Citizenship (No 2):

    The time and date for hearing, and the place of hearing of the application, were described on the application as “On the papers, in Chambers”.

    On 9 November 2011 the Deputy District Registrar wrote to the parties. In that letter the Deputy District Registrar said, inter alia:

As indicated in my letter of 8 November 2011, her Honour proposes to determine the interlocutory application in chambers based on brief written submissions provided by the parties. To this end the parties are directed to submit within 1 week from today, brief written submissions (limited to 3 pages) supporting their position in this regard. I would be grateful if the parties could provide an electronic version of their submissions directly to her Honour’s associate.

    On 16 November 2011 written submissions were filed on behalf of the Minister opposing any order granting leave to the appellant to reopen argument in respect of issues arising pursuant to the decision of the High Court in Plaintiff M70/2011.

8    I note that no objection was made by any party to the proceedings to the Court determining, on the papers, the question of leave to reopen argument.

9    As I further explained in Patel v Minister for Immigration and Citizenship (No 2), my reasons for dismissal of the appellant’s interlocutory application were that:

    as I understood – no submissions had been received by the Court in support of the interlocutory application;

    no very exceptional circumstances had been demonstrated by the appellant to support the application for the Court to reopen argument; and

    no grounds were substantiated demonstrating the relevance to the appellant’s appeal of the decision of the High Court in Plaintiff M70/2011.

10    The decision in Patel v Minister for Immigration and Citizenship (No 2) was delivered on 17 September 2012.

11    On 9 October 2012 it was brought to my attention that, in fact, submissions on behalf of the appellant, and signed by the appellant’s Counsel Mr Boccabella, had been emailed to a Deputy Registrar of this Court on 16 November 2011 at 5.09 pm by Ms Libby Collins. These submissions were not filed at any time, notwithstanding that above the letterhead of the appellant’s solicitors in the body of the submissions they have typed the statement “Filed on behalf of: the Appellant”.

12    It appears that the Deputy Registrar forwarded (again by email) Ms Collins’ email and the attached submissions to my then Associate on 16 November 2011 at 5.18 pm. For reasons of which I am not aware, this correspondence was not brought to my attention in any way, nor printed, nor put on any part of the Court file, including the relevant correspondence folder or Judge’s materials folder. As a result, the submissions of the appellant in relation to his interlocutory application were never put to me in any form. I note that had the appellant’s submissions in relation to his interlocutory application been brought to my attention, the appropriate direction would have been that they be placed on the Court file (for example, this approach was noted in Director of Public Prosecutions v Selway (Ruling No 20) [2007] VSC 250 at [1] and Morais v Mills (No 1) [2010] QDC 252 at [3]).

13    From the copy of Ms Collins’ email of 16 November 2011 which has now been brought to my attention, it is apparent that the submissions emailed by her to the Deputy Registrar were also provided to the solicitors for the Minister.

14    On learning of these events following a recent inquiry by Ms Collins of the Deputy Registrar, and an email by the Deputy Registrar to my current Associate (which email was brought to my attention), I directed the parties to appear in Court as soon as possible. Both parties, represented by Counsel, appeared last Monday 22 October 2012. Counsel made oral submission, and handed up written submissions in Court (which I directed to be filed in Court).

The events

15    As the Full Court of this Court reiterated recently, the Federal Court of Australia, by reason of s 5(2) of the Federal Court Act, is a superior court of record: Davis v Insolvency and Trustee Service Australia (No 2) (2011) 190 FCR 437 at [4]. It is axiomatic that a court of record is a court that is required to keep a record of its own proceedings (Black’s Law Dictionary (8th ed, 2004)). However, as was recently pointed out by Elias CJ, Blanchard and McGrath JJ in the Supreme Court of New Zealand in Mafart v Television New Zealand Ltd [2006] 3 NZLR 18 at [19], to a substantial extent the content of “the record” is not prescribed by enactments and is a matter of the practice of the court. As their Honours continued in Mafart:

[21]    There is a difference between the entries in the books and registers and documents maintained by a court which are formal steps in proceedings and other material received by it during the course of the proceedings and held on the court file. Such records are conclusive as to essential court processes and the outcome of the proceedings. They constitute the formal record. The file will also include documents, exhibits (which may remain the property of the parties), and other material which constitute an archive generated by the proceedings, but which are not the formal record of the court.

(Footnotes omitted.)

16    Submissions of the parties form an integral part of the decision-making process of the Court. In my view they form part of “the record” of decisions in this Court. It is critical that they are brought to the attention of the trial judge, particularly in a case which is decided on the papers.

17    It is regrettable that material emailed to Chambers was not printed nor put on the correspondence folder associated with these proceedings. Mr Boccabella submitted that, in fact, the appellant’s legal representatives performed the task they were directed to perform, and that indeed:

- - - in the 21st century, electronic communications is a standard method of operating in this court and in other courts. Whether there was a 101 per cent compliance of all the rules about electronic filing, of course, is another issue but we are in the 21st century, electronic communication is the method of communication by 99 per cent of transactions that occur, both in this court and out of it.

(Transcript 22 October 2012 p 5 l 46 – p 6 l 4.)

18    I do not dispute the use and convenience of electronic communication between the Court and litigants (and/or their legal representatives), and indeed sometimes between Chambers and litigants (and/or their legal representatives). Indeed, the Federal Court Rules contemplate electronic lodgement of material in defined circumstances, which I discuss later in this judgment.

19    Inadvertence and missteps do occur in the course of litigation, as they do in daily life. However I also consider that the events I have just described demonstrate an unfortunate lack of formality in dealing with the Court on the part of the appellant’s legal representatives.

20    First, given that the Deputy Registrar had informed the parties that I would decide the matter of whether leave ought be granted “on the papers” and directed them as to when submissions should be filed, it was clearly important that any “papers” be provided to the Court in a manner in which they would, unequivocally, become part of the Court record. One obvious method of doing so would have been to lodge the submissions for filing, filing being (as Hill J observed in Kasirye v Minister for Immigration & Multicultural Affairs [2001] FCA 920) an act of the Court. The legal advisers for the Minister certainly took this approach, and electronically lodged their submissions with the Court in accordance with the Federal Court Rules.

21    Second, the approach of the Court in deciding the interlocutory application on the papers was formally recorded on the interlocutory application itself, which was on the Court file. In this way, the Court file formally records this step taken in the proceedings. An informal email from the Chambers of Counsel for the appellant, attaching submissions, cannot be said to formally – or, as has transpired in these unfortunate circumstances, with any degree of certainty – record the case of the appellant in respect of the interlocutory application before the Court.

22    Third, the Deputy Registrar had, in a letter dated 9 November 2011 to the solicitors for the parties, directed the parties “to submit within 1 week from today, brief written submissions (limited to 3 pages) supporting their position in this regard”. The Deputy Registrar had also written “I would be grateful if the parties could provide an electronic version of their submissions directly to her Honour’s associate”. In an email of 9 November 2011 to which the Deputy Registrar’s letter of the same date was attached, both of which are on the Court file, the Deputy Registrar wrote:

Dear Practitioner,

Please find enclosed a copy of my letter of today’s date requesting brief written submissions (limited to 3 pages) to be filed within 1 week, setting out each party’s position in relation to the interlocutory application.

Her Honour proposes to determine the application in chambers based on those written submissions.

(Emphasis added.)

23    In the covering email, the Deputy Registrar specifically requested the parties “file” their submissions. Mr Boccabella’s submissions invite the inference that the Deputy Registrar, in his correspondence, required the parties only to email their submissions to my Associate. However I do not accept that this is the case. This is evident by the distinction in the Deputy Registrar’s letter between the parties “submitting” their submissions, and then requesting the parties to provide an electronic version of their submissions to the Associate. It was clear from this correspondence that the Court required more than an informal email to the Deputy Registrar with submissions attached. Again, I note that the Minister’s legal representatives appeared to see no ambiguity in the Deputy Registrar’s direction.

24    Finally, and in any event, r 2.21 of the Federal Court Rules allows a document to be lodged with the Court in one of only four ways:

(a)    being presented to a Registry when the Registry is open for business; or

(b)    being posted to a Registry with a written request for the action required in relation to the document; or

(c)    being faxed to a Registry in accordance with rule 2.22; or

(d)    being sent by electronic communication to a registry, in accordance with rule 2.23.

25    Rule 2.23 contemplates electronic lodgement, using the Court’s website, in an electronic format approved by the Registrar for the Registry. The email of the appellant’s submissions clearly did not satisfy these requirements.

26    A key reason for each proceeding in a Court of Record having a “file” is that material properly brought before the Court is formally recorded for consideration by the Court at particular times during the course of the proceedings up until judgment is delivered. Failure to properly bring material before the Court is inherently risky, as has transpired in this case. It is unfortunate that the email with attached submissions of the appellant was neither brought to my attention at the time it was sent to the Deputy Registrar, nor put on the file, and to that extent there has also been a breakdown in communication within the Court. However it is not for the Judge in any proceedings to be required to follow up the parties at a later date to ascertain whether, in fact, they have provided submissions in compliance with directions, when on the face of the file it appears that no submissions have been made. These events are a stark reminder of the importance of documentation being properly lodged with the Court, in accordance with the Rules of this Court.

The current position

27    Orders were made in both Patel v Minister for Immigration and Citizenship and Patel v Minister for Immigration and Citizenship (No 2) on the assumption that the appellant had made no submissions concerning the question whether the Court should reopen argument in relation to the decision of the High Court in Plaintiff M70/2011. Putting to one side now the issues I have canvassed in relation to the manner in which the appellant’s submissions were communicated to the Court, it is clear that submissions were nonetheless prepared by Counsel for the appellant, and intended to be the subject of reliance by the appellant in relation to his interlocutory application. An important principle of law is that expressed in the maxim audi alteram partem, requiring a person to be heard before a decision is made. In this case, the Court was not able to take into account the appellant’s submissions concerning whether the Court should entertain further arguments concerning the decision in Plaintiff M70/2011.

28    A very real question, however, is whether the Court has power to address the situation which has now arisen.

29    Rule 39.04 of the Federal Court Rules provides as follows:

The Court may vary or set aside a judgment or order before it has been entered.

30    It is not in dispute in this case that all relevant orders have been entered. Accordingly, r 39.04 is of no assistance in these proceedings.

31    Once an order has been entered, r 39.05 becomes relevant. This rule provides:

Varying or setting aside judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party; or

(b)    it was obtained by fraud; or

(c)    it is interlocutory; or

(d)    it is an injunction or for the appointment of a receiver; or

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in a judgment or order; or

(h)    there is an error arising in a judgment or order from an accidental slip or omission.

32    Both parties have provided submissions in relation to the powers of the Court in the current circumstances.

33    Materially, the Minister does not oppose a variation of the judgment if the Court takes the view that there is a proper legal basis for taking such a step. In his submissions, however, the Minister also notes that an application for special leave to appeal to the High Court of Australia against the decision in Patel v Minister for Immigration and Citizenship was filed on 2 October 2012, and that it is arguable that the High Court is now seized of the matter. Nonetheless Mr Bickford for the Minister also directed my attention to the decision of the High Court in Collins v The Queen (1975) 133 CLR 120, and in particular to comments of Barwick CJ, Stephen, Mason and Jacobs JJ at 122 where their Honours said:

But an application for leave or special leave to appeal is not in the ordinary course of litigation. The practice of this Court in granting or refusing leave or special leave makes this clear. First, until the grant of leave or special leave, there are no proceedings inter partes before the Court. This is so even in a case in which the application for leave or special leave is opposed …

(Emphasis added.)

34    To that extent I consider the preferable view is that, notwithstanding the lodgement of the application for special leave to appeal to the High Court by the appellant, this Court continues to have power in relation to these proceedings.

35    The appellant however appears to take a different view. In summary, the appellant submits:

    Natural justice cannot be given after the event.

    The appellant formally opposes any order to re-list the application to reopen argument prior to judgment being vacated (I understand that the appellant means judgment in the substantive appeal).

    If I were to determine this matter again, the objective test of a reasonable apprehension of bias would be breached.

    The Court does, however, have power to vacate all orders in these proceedings. All orders ought to be vacated and the matter determined again by a differently constituted Federal Court in its appellate jurisdiction.

36    The appellant has not brought a formal application in this matter. I understand, however, from the written and oral submissions of Counsel for the appellant, that the appellant seeks a vacation of orders made in Patel v Minister for Immigration and Citizenship, Patel v Minister for Immigration and Citizenship (No 2), and Patel v Minister for Immigration and Citizenship (No 3) [2012] FCA 1021 (which deals with the award of costs in relation to the previous decisions). To that extent, there is an interlocutory application before the Court to vacate all orders.

37    The Minister opposes vacation of any orders made in these proceedings.

38    In the recent decision in United Group Resources Pty Ltd v Calabro (No 6) [2012] FCA 431 McKerracher J made the following observations:

[12]    In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, Mason CJ held (at 303) that an order may be reviewed where the Court has good reason to consider that its earlier judgment has proceeded under a misapprehension as to the facts or to the law and that the misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.

[13]    Similarly, in De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207, the High Court (Toohey, Gaudron, McHugh, Gummow and Kirby JJ) held in a joint judgment in respect of an application to reopen final orders before the entry of such orders (at 215) (footnotes omitted) that:

The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded “on a misapprehension as to the facts or the law”, where “there is some matter calling for review” or where “the interests of justice so require”. It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required “without fault on his part”, ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case.

39    I further note the following observations of Mason and Wilson JJ in State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38:

Counsel for the Authority referred the Court to many cases to establish the jurisdiction of the Court to entertain the present application. We have no doubt that such a jurisdiction exists: Rajunder Narain Rae v. Bijai Govind Sing. See also Vienkata Narasimha Appa Row v. Court of Wards; In re Harrison s Share Under a Settlement. Nevertheless, it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. In Rae’s Case, Lord Brougham said, in words

which the Authority claims are apposite to the present case:

It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of the last resort, where by some accident, without any blame, the party has not been heard, and an Order has been inadvertently made as if the party had been heard.

In Venkata’s Case (38), Lord Watson, delivering the opinion of the Judicial Committee of the Privy Council, referred to Lord Brougham's words in Rae’s Case and continued:

Even before report, whilst the decision of the Board is not yet res judicata great caution has been observed in permitting the rehearing of appeals. In the last case to which we were referred, that of Hebbert v. Purchas, where a litigant alleged, before report and approval, that he had been disabled by want of means from appearing and maintaining his case, the Lord Chancellor said: -

Having carefully weighed the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finalty “[sic)” of the decisions of the Judicial Committee, their Lordships are of opinion that expediency requires that the prayer of the petitions should not be acceded to, and that they should be refused.

There is a salutary maxim which ought to be observed by all Courts of last resort - Interest reipublicae ut sit finis litium. Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this.

(Footnotes omitted.)

40    In this case, taking these principles into consideration, I make the following observations.

41    First, this appeal has been the subject of dispositive orders in Patel v Minister for Immigration and Citizenship. However the decision expressed in that judgment was in light of a decision not to grant leave to the appellant to reopen argument in relation to the decision of the High Court in Plaintiff M70/2011, for which I published separate reasons in Patel v Minister for Immigration and Citizenship (No 2).

42    Second, the decision in Patel v Minister for Immigration and Citizenship (No 2) was an interlocutory decision. To that extent, the Court has power pursuant to r 39.05(c) to set aside that decision notwithstanding that it has been entered.

43    Third, alternatively, given the circumstances of this case it may be open to the Court to find that all three decisions contained an error arising from an accidental slip or omission, as contemplated by r 39.05(h).

44    Fourth, it appears from the decisions of the High Court in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 and Codelfa that the Court has inherent jurisdiction to recall a judgment given in these circumstances, notwithstanding that it has been entered, however in doing so the Court must weigh injustice against the public interest in maintaining the finality of litigation.

45    Although all three decisions are related, it is the decision in Patel v Minister for Immigration and Citizenship (No 2) which requires immediate reconsideration, because it is in respect of the appellant’s interlocutory application to reopen argument that a decision was made on an incorrect basis. Although the orders in Patel v Minister for Immigration and Citizenship (No 2) have been entered, the Court has power to, and should, reopen that decision and have regard to the submissions prepared on behalf of the appellant as well as those filed by the Minister. In my view this is the first step the Court should take in addressing the circumstances arising from the events I have outlined, notwithstanding that the appellant appears to oppose this approach.

46    Following proper consideration of the appellant’s case for the reopening of argument in relation to the decision of the High Court in Plaintiff M70/2011, the next step would be to consider the impact (if any) on the decisions already given in Patel v Minister for Immigration and Citizenship and Patel v Minister for Immigration and Citizenship (No 3).

47    Accordingly, I now turn to consideration of the appellant’s submissions in relation to Patel v Minister for Immigration and Citizenship (No 2).

Interlocutory application filed by the appellant on 4 November 2011: appellant’s submissions

48    In summary, the appellant submits that there are a number of very analogous points determined in Plaintiff M70/2011, which are particularly relevant to matters under consideration in this proceeding. Specifically, the appellant submits:

    Both this proceeding and Plaintiff M70/2011 concerned the validity of a declaration and a certificate made under the Migration Act 1958 (Cth) (“Migration Act”) or Migration Regulations 1994 (Cth) (“Migration Regulations”).

    Plaintiff M70/2011 was decided after the hearing of the appeal, and it would be remiss of both parties not to offer their assistance to the Court by way of submissions in relation to that case.

    In Plaintiff M70/2011 the relevant declaration and certificate provisions were found in s 198A(3) of the Migration Act which provided:

The Minister may:

(a)    declare in writing that a specified country:

(i)    provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii)    provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii)    provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv)    meets relevant human rights standards in providing that protection; and

(b)    in writing, revoke a declaration made under paragraph (a).

    In the appeal by Mr Patel the relevant declaration and certificate provision was condition 8202(3) of Sch 8 of the Migration Regulations, which provides:

(a)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

(i)    section 19 of the Education Services for Overseas Students Act 2000; and

(ii)    standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

    In relation to the “declaration”, French CJ in Plaintiff M70/2011 said as follows:

[57]    The term “jurisdictional fact” applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements”. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact. The primary submission on the part of the plaintiffs, however, looked to the existence of the matters set out in s 198A(3)(a) as conditioning the Minister’s power to make a declaration.

[58]    The question is one of statutory construction. The considerations advanced by the plaintiffs cannot overcome the language of s 198A(3). Moreover, clear language would be needed to support the primary characterisation for which they contend. The Minister is empowered under s 198A(3) to make a declaration, the content of which is defined by that subsection. Putting to one side the nature and scope of the “protection” referred to in each of sub-pars (i) to (iv), their language indicates the need for ministerial evaluative judgment. As explained below, consideration of the domestic law of the proposed receiving country and its binding commitments and obligations under international law is mandated. That consideration will necessarily be an evaluative task. The words “provide”, “access”, “effective procedures” and “meets relevant human rights standards” all point in that direction. The function conferred upon the Minister is an executive function to be carried out according to law. Absent clear words, the subsection should not be construed as conferring upon courts the power to substitute their judgment for that of the Minister by characterising the matters in sub-pars (i) to (iv) as jurisdictional facts.

[59]    On the other hand, the mere fact that it is the Minister who makes the declaration is not enough to secure its validity. The Solicitor-General was correct when he submitted that the Minister is required to form, in good faith, an evaluative judgment based upon the matters set out in s 198A(3)(a), properly construed. That the Minister properly construe them is a necessary condition of the validity of his declaration. Properly construed, they define the content of the declaration which the Parliament has authorised. If the Minister were to proceed to make a declaration on the basis of a misconstrued criterion, he would be making a declaration not authorised by the Parliament. The misconstruction of the criterion would be a jurisdictional error. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf:

identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.

A declaration under s 198A(3) affected by jurisdictional error is invalid. Another way of approaching the scope of the ministerial power under s 198A(3) is to treat it as being, by necessary implication, conditioned upon the formation of an opinion or belief that each of the matters set out in s 193A(a)(i)-(iv) is true. The requisite opinion or belief is a jurisdictional fact. If based upon a misconstruction of one or more of the matters, the opinion or belief is not that which the subsection requires in order that the power be enlivened.

(Footnotes omitted.)

    Ultimately six members of the High Court found that the necessary jurisdictional facts did not exist to allow the Minister to make a valid declaration. The existence of a signed declaration and the Minister’s good faith were insufficient to ground a valid declaration.

    In this appeal the existence of a relevant “certificate” under condition 8202 is a jurisdictional fact necessary to found the power to cancel Mr Patel’s visa under s 116(b) of the Migration Act.

    The “certificate” under condition 8202 provides the basis for the exercise of the power. As Plaintiff M70 determines by analogy, in order to exercise the power of visa cancellation there must be a valid certificate. The Federal Magistrates Court determined that the certificate was purportedly issued by a person who did not have the delegation. It was therefore not a valid certificate sufficient to find a jurisdictional fact to enliven the power of visa cancellation.

49    In relation to whether the Court should grant leave to allow the appellant to reopen argument in the appeal, confined to the relevance of the decision in Plaintiff M70, the Minister submits (in summary):

    Absent very exceptional circumstances, leave will not normally be granted once a case has been fully argued and the decision reserved.

    The appellant has not endeavoured to demonstrate exceptional circumstances, let alone very exceptional circumstances, in this case.

    The appellant simply refers to a recent decision of the High Court on the basis that it has some relevance to this appeal.

    The Minister submits that the decision in Plaintiff M70 has little or no relevance to the determination of the issues in this appeal.

    The Court is, in any event, entitled to have regard to Plaintiff M70.

Leave to reopen argument – general principles

50    As was explained in McHugh J in Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 at 330:

Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.

51    Similarly in Re Application by the Chief Commissioner of Police (Victoria) (2005) 214 ALR 422 at 427, Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ referred with approval to the decision of the Court of Appeal of Victoria in R v Theophanous [2003] VSCA 78, where the Court of Appeal:

had pointed out (not for the first time) that, in an appeal, once argument has been presented at the hearing, leave is necessary before further submissions may be made, and that leave to do so will be granted only in very exceptional circumstances.

52    More recently the Court of Appeal of Victoria in Frugtniet v Law Institute of Victoria Ltd [2012] VSCA 178 at [46] said:

Certainly, if a new point arises at the hearing of an appeal, the court may give leave to the parties to file further written submissions within a short period of the hearing. But parties to an appeal must understand that they have no legal right to continue putting in submissions to the court after the hearing of an appeal; and ordinarily, once a hearing has concluded, the workload of the court and the delay in the court’s business that would be associated with a fresh round of submissions make it impossible for the court to give leave to file further submissions.

53    I note that in this proceeding the Minister opposed the grant of leave to the appellant to reopen argument (confined to Plaintiff M70).

Case of the appellant in the appeal

54    For the purposes of this appeal, prior to the hearing of argument in the appeal the appellant filed detailed written submissions in relation to the question of “jurisdictional facts”. In particular, the appellant quoted extensively from the judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, and submitted that this decision reaffirmed that it is the function of the Court to determine as a question of fact whether a jurisdictional fact exists or not. Further, the appellant pointed to:

    Comments of the plurality in Enfield as to the meaning of the term “jurisdictional facts”, in particular at 148 as follows:

The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.

    Discussion at 151 and 155-156 by the plurality of the decision below, and in particular the necessity for the trial judge to determine the “jurisdictional fact” issue upon the evidence before the Court.

    Comments by Gaudron J at 157 and 158 to the effect that Courts ought not be reticent in providing available and appropriate remedies to ensure that executive and administrative powers are exercised properly.

55    Accordingly, it appeared that, while the primary submission of the appellant concerned whether, as a matter of law, the Griffith University certification was invalid, nonetheless the relevance of Enfield was that it was authority for the proposition that it is the function of the Court to determine if the Tribunal wrongly gave itself jurisdiction to affirm the cancellation of the student visa by finding there was a valid certification by Griffith University.

56    At the hearing of the appeal before me, the appellant’s enthusiasm for argument pressing the relevance of the concept of “jurisdictional facts” appeared to have waned. Indeed I note the following excerpt from pages 15-16 of the transcript of the hearing of the appeal:

MR BOCCABELLA: … Now, your Honour, it seems to me – I refer to page 16 and 17 [of the appellant’s written submissions] – that the jurisdictional fact issue perhaps has faded away in this sense that the Federal Magistrate did enquire into the whole process, and there doesn’t seem to be an objection to the fact that he did that, so what that seems, and I may be wrong here, what that seems to me is that this appeal doesn’t intern (sic) on whether his Honour, Burnett FM, did in fact enquire into the delegation or not or whether he had power to do so.

HER HONOUR: So are you not pressing issues, grounds of appeal in relation to jurisdictional fact are you?

MR BOCCABELLA: Well, in the sense, only in this sense, if it’s maintained that Burnett FM didn’t – erred in finding that the delegation was incorrect then I press the jurisdictional fact issue.

HER HONOUR: Look I will just ask Mr Lloyd if he wants to respond to that at this point.

MR LLOYD: As I understand it in the court below the position that was taken was that the tribunal need not have looked at inter alia the delegations, because it’s having something that on its face appears to be a certificate, is enough. That being so, I think it was put in the court below that his Honour need not have gone into the whole jurisdictional fact question because it just doesn’t arise. We understand that what his Honour did was to make findings of jurisdictional fact. He accepted our submissions but because he obviously thought that this case was going to go further, and in order to assist any court on appeal, he made findings in relation to what was said to be jurisdictional facts. We don’t contest the finding – sorry we don’t contest his finding in relation to Ms Issa’s delegation, but we do say it’s not a jurisdictional fact

HER HONOUR: All right, I’m not sure exactly where that leaves me here then, Mr Boccabella.

MR BOCCABELLA: Well, for the sake of completeness I should make the argument.

57    The transcript reveals shortly thereafter the following exchange (p 16):

HER HONOUR: Yes, but sorry could we just get back to the issue of where this leaves me in relation to the grounds of appeal. Are you continuing to press it?

MR BOCCABELLA: Yes, well, in light of what my learned friend has said, yes, in this sense that the tribunal or a decision-maker has to enquire as to whether they have jurisdiction when the issue is raised before them. In other words, for the tribunal or a decision-maker to cancel the visa they have to be satisfied that there is a valid certificate. Without the issue of a valid certificate there’s no jurisdiction to cancel the visa.

58    Mr Boccabella then explained that the issue of jurisdictional fact was relevant to Ground 4 of the Notice of Appeal, which read:

The learned Federal Magistrate erred in characterising the appellant’s case as being that the MRT was reviewing the educational provider’s decision. The appellant’s case was and is that the Minister’s delegate could not validly exercise the power to cancel a student visa unless the education provider issued a valid certificate. Characterising the appellant’s case as requiring the MRT to have power to review the decision of the education provider was a distraction which lead the learned Federal Magistrate into error.

59    At page 17 of the transcript, the following exchange then took place:

MR BOCCABELLA: So, your Honour, if it be the case – what is – it really meets the argument by the respondent as one has to obviously be prepared to meet what the respondent says. If the respondent say that it’s not a jurisdictional fact, in other words, there need be no enquiry as to the certification whatsoever, well my submission is as the High Court has amply demonstrated in the City of Enfield that it indeed is the function of the decision-maker whether it be a court or a tribunal or a decision-maker at first instance to determine the necessary facts as to whether they have jurisdiction or not.

HER HONOUR: All right.

MR BOCCABELLA: And that meets that argument.

HER HONOUR: Thank you.

60    With these written and oral submissions in mind, it is useful if I examine the discussion of the High Court in Plaintiff M70/2011 of principles relevant to “jurisdictional facts” before turning to the question whether the appellant has demonstrated very exceptional circumstances warranting the grant of leave to reopen argument in relation to the decision in Plaintiff M70/2011.

Plaintiff M70/2011

61    As French CJ explained at [1] in Plaintiff M70/2011, those proceedings:

involve legal issues which arise in a strongly contested area of public policy. The public policy contest relates to the way in which Australia deals with non-citizens who enter its territory by sea without visas and invoke Australia’s protection obligations under the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (“the Refugee Convention”).

62    The plaintiffs claimed to be Shi’a Muslim, and further claimed refugee status under the Migration Act. They were detained at Christmas Island pursuant to s 189(3) of that Act. The plaintiffs were further subject to a new administrative regime for the transfer to Malaysia, without prior assessment of their protection claims, of asylum seekers irregularly arriving in Australia by sea after 25 July 2011. The removal of the plaintiffs to Malaysia was to be carried out in purported reliance upon powers conferred by s 198(2) and s 198A(1) of the Migration Act. As French CJ said:

[9]    Section 198(2) imposes on an officer a duty to remove from Australia as soon as reasonably possible an unlawful non-citizen who is in detention under s 189(3). As pointed out in Plaintiff M61/2010E v The Commonwealth, s 198(2) permits a person to be detained while steps are taken to determine whether the person should be allowed to make an application for a visa. Section 198(2) does not in terms condition the power of removal upon identification of the specific country to which the person is to be removed.

[10]    Section 198A, which was introduced into the Migration Act by the 2001 Excision Consequential Provisions Act, provides for offshore entry persons to be taken to specified countries. Section 198A(1) provides that:

An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).

Pursuant to s 198A(2) the power to “take” under s 198A(1) includes the power, within or outside Australia, to place and restrain a person on a vehicle or vessel, to remove a person from a vehicle or vessel and to use such force as is necessary and reasonable. As this Court observed in Plaintiff M61, the changes to the Migration Act effected by the enactment of ss 46A and 198A reflect “a legislative intention to adhere to that understanding of Australia’s obligations under the Refugees Convention and the Refugees Protocol that informed other provisions made by the Act”.

[11]    On 25 July 2011 a declaration with respect to Malaysia was made by the Minister purportedly acting under s 198A(3) of the Migration Act. That subsection, which is at the centre of these proceedings, provides:

The Minister may:

(a)    declare in writing that a specified country:

(i)    provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii)    provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii)    provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv)    meets relevant human rights standards in providing that protection; and

(b)    in writing, revoke a declaration made under paragraph (a).

(Footnotes omitted.)

63    As explained by French CJ at [16] the plaintiffs in that case submitted:

1.    The only source of power to take them from Australia to Malaysia is s 198A of the Migration Act.

2.    That power is conditioned upon the Minister making a valid declaration under s 198A(3) of the Migration Act.

3.    The declaration made on 25 July 2011 was not validly made because:

(i)    the four criteria set out in s 198A(3)(i)-(iv) are jurisdictional facts which did not exist; or

(ii)    alternatively, they are facts of which the Minister had to be satisfied before making a declaration and he was not so satisfied because he misconstrued the criteria.

4.    The exercise of the discretionary power conferred by s 198A(1) miscarried in relation to M70 and, unless restrained, will miscarry with respect to M106 because:

(i)    it was or would be unlawfully fettered by ministerial direction dated 25 July 2011 to all officers exercising that power; and

(ii)    the decision-maker failed or would have failed to consider the individual circumstances of M70 in relation to his liability for prosecution in Malaysia for an offence against Malaysian immigration law.

64    Section 198A had previously been considered in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319, where at [34] the High Court said (in summary) that the changes to the Migration Act following the insertion of s 198A reflected a legislative intention to adhere to a particular understanding of Australia’s obligations under the Refugees Convention and the Refugees Protocol which in turn informed other provisions of the Act.

65    French CJ considered the competing submissions of the parties as to the declaration to be made by the Minister under s 198A(3)(a), in particular whether it was enough that the Minister properly understood the matters set out in subparas (i)-(iv) of s 198A(3)(a) and therefore whether he asked the correct question in forming the judgment required under s 198A(3), or alternatively whether the matters which are the subject of the declaration under s 198A(3) were jurisdictional facts. His Honour continued:

[57]    The term “jurisdictional fact” applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements”. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact. The primary submission on the part of the plaintiffs, however, looked to the existence of the matters set out in s 198A(3)(a) as conditioning the Minister’s power to make a declaration.

[58]    The question is one of statutory construction. The considerations advanced by the plaintiffs cannot overcome the language of s 198A(3). Moreover, clear language would be needed to support the primary characterisation for which they contend. The Minister is empowered under s 198A(3) to make a declaration, the content of which is defined by that subsection. Putting to one side the nature and scope of the “protection” referred to in each of sub-pars (i) to (iv), their language indicates the need for ministerial evaluative judgment. As explained below, consideration of the domestic law of the proposed receiving country and its binding commitments and obligations under international law is mandated. That consideration will necessarily be an evaluative task. The words “provide”, “access”, “effective procedures” and “meets relevant human rights standards” all point in that direction. The function conferred upon the Minister is an executive function to be carried out according to law. Absent clear words, the subsection should not be construed as conferring upon courts the power to substitute their judgment for that of the Minister by characterising the matters in sub-pars (i) to (iv) as jurisdictional facts.

[59]    On the other hand, the mere fact that it is the Minister who makes the declaration is not enough to secure its validity. The Solicitor-General was correct when he submitted that the Minister is required to form, in good faith, an evaluative judgment based upon the matters set out in s 198A(3)(a), properly construed. That the Minister properly construed them is a necessary condition of the validity of his declaration. Properly construed, they define the content of the declaration which the Parliament has authorised. If the Minister were to proceed to make a declaration on the basis of a misconstrued criterion, he would be making a declaration not authorised by the Parliament. The misconstruction of the criterion would be a jurisdictional error. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf:

identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.

A declaration under s 198A(3) affected by jurisdictional error is invalid. Another way of approaching the scope of the ministerial power under s 198A(3) is to treat it as being, by necessary implication, conditioned upon the formation of an opinion or belief that each of the matters set out in s 193A(a)(i)-(iv) is true. The requisite opinion or belief is a jurisdictional fact. If based upon a misconstruction of one or more of the matters, the opinion or belief is not that which the subsection requires in order that the power be enlivened.

66    I have omitted the footnotes from these paragraphs of his Honour’s judgment, but note that his Honour referred as authorities to Enfield; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303-304; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651-654 [130]-[137] per Gummow J; and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 609 per Gummow and Hayne JJ.

67    The majority judgment in Plaintiff M70/2011 was given by Gummow, Hayne, Crennan and Bell JJ. At [106] after reciting the elements of s 198A(3)(a) their Honours observed as follows:

Section 198A(3)(a) does not refer to the Minister being satisfied of the existence of those criteria or provide that the Minister’s forming of an opinion about those matters is a condition for the exercise of the discretion to make a declaration. Rather, the Minister is given a discretion, and thus has power, to declare that a specified country has the relevant characteristics. On its face, it is not a power to declare that the Minister thinks or believes or is satisfied that the country has those characteristics.

68    At [107] their Honours noted the recognition given to “jurisdictional facts” in Enfield, however rejected the submissions on behalf of the Minister and the Commonwealth that subparas (i) to (iv) of s 198A(3)(a) were not jurisdictional facts because (at [109]):

    to read s 198A(3)(a) in that way would read it as validly engaged whenever the Minister bona fide thought or believed that the relevant criteria were met; and

    to read the provision in that way would pay insufficient regard to its text, context and evident purpose.

69    After considering the content of the criteria stated in subparas (i) to (iv) of s 198A(3)(a), their Honours ultimately found (so far as material in these circumstances):

[135]    As already explained, the references in s 198A(3)(a) to a country that provides access and provides protection are to be construed as references to provision of access or protection in accordance with an obligation to do so. Where, as in the present case, it is agreed that Malaysia: first, does not recognise the status of refugee in its domestic law and does not undertake any activities related to the reception, registration, documentation and status determination of asylum seekers and refugees; second, is not party to the Refugees Convention or the Refugees Protocol; and, third, has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments; it was not open to the Minister to conclude that Malaysia provides the access or protections referred to in s 198A(3)(a)(i) to (iii). The Minister’s conclusions that persons seeking asylum have access to UNHCR procedures for assessing their need for protection and that neither persons seeking asylum nor persons who are given refugee status are ill-treated pending determination of their refugee status or repatriation or resettlement did not form a sufficient basis for making the declaration. The jurisdictional facts necessary to making a valid declaration under s 198A(3)(a) were not and could not be established.

[136]    The Minister’s declaration was made beyond power. It follows that s 198A(1) cannot be engaged to take either plaintiff from Australia to Malaysia. And as earlier demonstrated, s 198 does not supply any power to remove either plaintiff from Australia to Malaysia.

Should the Court grant leave to the appellant to reopen argument concerning Plaintiff M70/2011?

70    I am not persuaded by the appellant’s submissions that the Court ought grant leave to the appellant to reopen argument limited to the relevance of the decision of the High Court in Plaintiff M70/2011. I am not persuaded that the “very exceptional circumstances” required by such authorities as Eastman, Re Application by the Chief Commissioner of Police (Victoria) and Frugtniet have been demonstrated by the appellant. I form this view in light of the summary of submissions and the decisions of their Honours in Plaintiff M70/2011, for the following reasons.

71    First, while contentions relevant to jurisdictional fact were the subject of written submissions, as became clear from the oral submissions of Mr Boccabella at the hearing of the appeal they were of minor import in the context of the appellant’s case and were pressed to only a limited extent. In my view this is a factor to be taken into consideration by the Court in deciding whether the leave sought by the appellant ought be granted.

72    Second, I note that the appellant relies in particular on the judgment of French CJ in Plaintiff M70/2011. In that light I have set out in detail the reasons of his Honour, as well as the majority’s discussion of principles concerning jurisdictional facts in that case. However although Plaintiff M70/2011 is a decision of a Full Bench of the High Court, and of importance, there is no suggestion by the appellant – at least in relation to legal principles pertaining to jurisdictional facts – that their Honours were developing new law in this area. For example, their Honours made clear reference to Enfield as a leading authority, which case was already before this Court and the subject of argument by the parties, and cited additional authorities including Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Australian Heritage Commission v Mount Isa Mines Ltd; Eshetu and Graham Barclay Oysters Pty Ltd. In my view while Plaintiff M70/2011 is a decision of the High Court, post-dating the hearing of the appeal before me, in which principles of law concerning jurisdictional facts were discussed and applied, the fact of its delivery and the confirmation of existing principles by the High Court in that case does not of itself constitute very exceptional circumstances warranting the grant of leave to reopen argument.

73    Third, as pointed out by the Minister, the decision of the High Court in Plaintiff M70/2011 has been in the public arena since approximately 31 August 2011, and able to be considered by this Court without the need for further submissions by the parties.

74    Fourth, I note that the Minister in his filed submissions took the position that the Court ought refuse the leave sought by the appellant to make further submissions. Whilst not determinative, nonetheless the position taken by the other party as to the relevance of Plaintiff M70/2011 and whether the Court ought grant leave is a relevant factor for the Court to take into account. Agreement of the parties that the Court could benefit from further submissions in relation to that decision would be, in my view, a fact supportive of a finding of very exceptional circumstances.

75    Finally, I am not persuaded of the existence of “very analogous” points to which the appellant refers in his written submissions. The facts and legislative framework the subject of this appeal are very different from those in Plaintiff M70/2011. In Plaintiff M70/2011 the Minister was required to make an evaluative judgment of the satisfaction of criteria in s 198A(3)(a); in this case the satisfaction of the Minister is referable to certification of conduct of a student, which certification is provided by relevant education providers under the Migration Act and the Migration Regulations. I am not satisfied that anything of substance could be added to the appellant’s case by the Court granting leave to permit further submissions concerning Plaintiff M70/2011.

Bias

76    Finally, Mr Boccabella submitted that, as I have already made dispositive orders in this case and have determined the substantive case against the appellant, I am subject to a reasonable apprehension of bias although there is no suggestion that I am actually biased. In this way I understand Mr Boccabella to refer to the test articulated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

77    I do not accept the submission that I ought disqualify myself for reasonable apprehension of bias, for the following reasons.

78    First, the principal issue I am deciding in this judgment is whether leave ought be granted to the appellant to reopen argument concerning the High Court’s decision in Plaintiff M70/2011. This is a very limited and technical issue. No facts require decision, nor issues of credit.

79    Second, at the heart of my decision in Patel v Minister for Immigration and Citizenship (No 2) was my understanding that the appellant did not seek to prosecute his interlocutory application, because of the apparent failure to provide submissions in support thereof. In the absence of such submissions I considered that the appellant had not demonstrated the very exceptional circumstances required before the Court will be prepared to grant leave. Since that judgment was delivered, I became aware that the appellant had, in fact, prepared submissions, and to that extent the reasoning in Patel v Minister for Immigration and Citizenship (No 2) was based on an incorrect assumption. Mr Boccabella submits that, because in the dispositive orders I found that issues concerning jurisdictional fact were irrelevant, it is not possible for me to bring an impartial mind to consideration of the appellant’s interlocutory application. I do not accept this submission – the approach by the Court in relation to considering the interlocutory application, in circumstances where submissions of both parties are before the Court, raises different issues to the determination of the substantive appeal. In my view it is appropriate and in the interests of justice that I now have regard to the appellant’s submissions in relation to a particular High Court case to identify whether the appellant has substantiated a case warranting the exercise of the Court’s discretion to grant leave to reopen argument.

80    Third, a Judge should not be quick to disqualify himself or herself from hearing a case for a reasonable apprehension of bias. As observed by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352:

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established” (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

(Emphasis added.)

81    As Besanko J similarly noted in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2009) 174 FCR 175 at [121]:

It has also been said that a conclusion of a reasonable apprehension of bias is not to be drawn lightly: Vakauta v Kelly (1989) 167 CLR 568 at 584-585 per Toohey J. The fair-minded lay observer “is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality”; at the same time, he is “not presumed to reject the possibility of prejudgment or bias”: Livesey v The New South Wales Bar Association (1983) 151 CLR 288 (“Livesey”) at 299.

82    Finally, the fact that I have previously given thought to the appellant’s interlocutory application, and indeed formed the view that the appeal ought be dismissed, does not in my view require me to recuse myself from considering an application for leave to reopen argument with the benefit of the appellant’s submissions (cf comments of the Court in R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553).

83    Consideration of the appellant’s submissions in relation to whether the appellant has demonstrated very exceptional circumstances to warrant the grant of leave to reopen argument does not, in the circumstances of this case, require any assessment of my earlier reasoning in relation to the interlocutory application (cf Logan J in Edwards v Santos Limited (No 3) [2011] FCA 886 at [56]).

Conclusion

84    In my view, the order made in Patel v Minister for Immigration and Citizenship (No 2) should stand, although for reasons different to those expressed in that judgment. The submissions of the appellant do not demonstrate very exceptional circumstances warranting the reopening of argument limited to the decision of the High Court in Plaintiff M70/2011. It follows that the orders made in Patel v Minister for Immigration and Citizenship and Patel v Minister for Immigration and Citizenship (No 3) should also stand.

85    At the hearing on 22 October 2012 Mr Boccabella invited me to issue a corrigendum to the judgment in Patel v Minister for Immigration and Citizenship (No 2). In my view the proper approach is to issue a corrigendum to that decision to the effect that those reasons for decision should be read with the reasons in this judgment.

Associate:

Dated:    25 October 2012