FEDERAL COURT OF AUSTRALIA

AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951

ORDERS

THE COURT ORDERS THAT:

1.    The Administrative Appeals Tribunal be joined as the second respondent to this proceeding.

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

3.    The appeal be allowed.

4.    The orders made by the Federal Circuit Court in proceeding PEG 2 of 2017 on 16 May 2019 be set aside, including the orders as to costs.

5.    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 proceeding.

6.    There be no order as to costs.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction and summary

1    This is an appeal from orders made by the Federal Circuit Court on 16 May 2019, dismissing the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal and ordering the appellant to pay the first respondent’s costs in the amount of $7,467: see AAM17 v Minister for Immigration & Anor [2019] FCCA 1567.

2    As I explain in more detail below, although the Federal Circuit Court gave reasons at the time of pronouncing its orders, no version of the Court’s reasons was accessible to the appellant until 18 July 2019, being more than a month after the appellant filed his notice of appeal in this Court. It is the particular combination of circumstances involved in these events which has led to the appeal being allowed.

Relevant background

3    The appellant is a citizen of Pakistan, of Mohajir ethnicity, and a Sunni Muslim. His first language is Urdu.

4    The delegate’s reasons disclose that between February 2009 and December 2012 the appellant travelled to Australia on five occasions as a holder of a Business Short Stay subclass UC-456 visa. During the last visit, on 25 March 2013 the appellant applied for a Student (subclass TU-572) visa, which was refused by a delegate of the Minister on 2 April 2013. On 19 February 2014, the Migration Review Tribunal affirmed the delegate’s decision. On 11 March 2014 the appellant applied for judicial review of this decision, however, withdrew his application on 21 July 2014.

5    The appellant then applied for a Protection (Class XA) visa on 24 July 2014, and was interviewed by a delegate of the Minister on 20 February 2015. The appellant’s protection visa application was rejected in a decision made on 29 May 2015 and the appellant applied to the (then) Refugee Review Tribunal for a review of this decision on 2 June 2015. The appellant was assisted by a migration agent at the beginning of the process before the Tribunal, although on 14 September 2016 the migration agent notified the Tribunal that he had ceased acting for the appellant. The appellant was then unrepresented throughout the remainder of the Tribunal process and before the Federal Circuit Court.

6    On 12 December 2016 the Tribunal affirmed the decision of the delegate of the Minister not to grant the appellant a protection visa. The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision on 3 January 2017. On 16 May 2019, orders were made dismissing the application. The Federal Circuit Court gave oral and contemporaneous reasons on that day for the orders it made.

7    The appellant appealed to this Court by a notice of appeal filed on 12 June 2019.

8    There are two express grounds of appeal:

1.    The Honourable Judge did not adopt a fair process in making the decision.

2.    The Honourable judge did not rely on the evidence I put before the court in my appeal.

9    It appears in the circumstances that the appellant had some assistance in formulating these grounds. However, given the appellant is unrepresented, and was unrepresented before the Federal Circuit Court, I have considered the Federal Circuit Court’s reasons, and those of the Tribunal, at a level broader than the express grounds of appeal, in order to ensure there is no obvious jurisdictional error attending the Tribunal’s decision, and which the Federal Circuit Court failed to identify.

10    The Tribunal’s findings and reasoning are set out in the Federal Circuit Court decision, and I do not repeat them here. Where necessary for the resolution of the appeal, I refer to the nature of the appellant’s claims, the Tribunal decision and the Federal Circuit Court reasons below.

The conduct of the appeal hearing

11    At the hearing, having explained the process to be undertaken on the appeal, and the function of this Court, the Court invited the Minister’s lawyer to address the Court first, so that the Minister’s position could be interpreted for the appellant, and he could respond. Both the appellant and the Minister’s lawyer agreed to this process. The hearing proceeded with the helpful assistance of the Minister’s lawyer, in something of an iterative way, with the appellant being given a chance to respond to matters as the Minister’s lawyer raised them, and having had them interpreted to him.

12    The appellant was then invited to add anything further he wished to say about the Federal Circuit Court’s decision, or the Tribunal’s decision. The appellant focussed on what he described as an unfair process before the Federal Circuit Court. The appellant stated that the Federal Circuit Court Judge had only asked him two questions, to which he responded, but that after those questions the Judge dismissed the case. He said he had expected the Judge to ask for more details about the decision in the Tribunal but that did not happen. It became apparent that the appellant had thought the Federal Circuit Court Judge would wish to understand why the appellant contended he should be granted a protection visa. After explaining again to the appellant the different functions of the Tribunal, the Federal Circuit Court on judicial review, and this Court on appeal, my impression was that the appellant understood better why the Federal Circuit Court Judge may not have appeared to want to hear what he had to say about his protection claims.

Resolution of the appeal

The express grounds of appeal

13    There is no basis for the second express ground of appeal: it is apparent from the transcript of the Federal Circuit Court hearing that the Federal Circuit Court admitted the appellant’s affidavit into evidence, as well as the Court Book containing all the evidence relevant to the Tribunal’s decision.

14    As to the first express ground of appeal, more needs to be said. A combination of factors has led to the conclusion that there was unfairness in the process adopted by the Federal Circuit Court.

15    The transcript of the Federal Circuit Court hearing reveals that the appellant was invited to address the Federal Circuit Court on the Tribunal decision:

HIS HONOUR: Do you want to put any submissions, oral submissions, as to why you think the tribunal’s decision was unlawful or unfair or in further support of your grounds in your application?

THE INTERPRETER: Yes, your Honour.

HIS HONOUR: What do you want to say?

THE INTERPRETER: Yes, your Honour, so everything – all – everything that was in my submission to the tribunal, I believe that it was not read properly, all the material. Everything was – that I mentioned in the – in my defence, that was all the truth. I believe the tribunal did not consider every – and read all – all my submissions properly.

HIS HONOUR: Yes. I will have the – just pause. I’m going to have the document which includes the annexure to the affidavit of Mr Corbould collectively marked exhibit B.

…

HIS HONOUR: What else do you wish to say, Mr Applicant, as to why the tribunal’s decision is unlawful or unfair?

THE INTERPRETER: So, your Honour, I believe all the points that was mentioned in my application to the tribunal, I believe that all those points were not considered and – and they were not read properly. And because of that, they should not have – they should have understood my situation and they should not have rejected my visa application.

HIS HONOUR: Is there anything else you want to add?

AAM17: No.

THE INTERPRETER: No, your Honour.

HIS HONOUR: Very well. Thank you, Mr Applicant.

AAM17: Thank you.

16    The appellant was also asked what he wished to say in reply to the Minister’s submissions:

HIS HONOUR: Yes. Mr Applicant, what do you wish to say in reply?

THE INTERPRETER: Your Honour, I wish to say that what I had experienced and the events that had happened to me in my claims, they were all the things that I mentioned to the tribunal and none of – none of it was made up and I should not have been rejected.

HIS HONOUR: Is there anything else you wish to say?

THE INTERPRETER: And all important documents that were in relation to my claims, like, the court documents for my – in Pakistan, I had actually submitted those and – because they were important and they are – they are things that I had experienced and everything that happened was the truth and it was complete and, besides that, I should not have been rejected.

HIS HONOUR: Is there anything else you want to say?

AAM17: No, thank you.

HIS HONOUR: Thank you, Mr Applicant.

17    The Federal Circuit Court then delivered its oral and contemporaneous reasons for judgment. The contents of those reasons were not before this Court on the appeal.

18    The transcript then records the appellant saying to the Federal Circuit Court Judge, in response to a question about whether there was any reason the Court should not make a costs order against the appellant:

THE INTERPRETER: Your Honour, my case has not even been reviewed properly and then now the decision has been made that it has been dismissed.

19    The Federal Circuit Court Judge stated that this was “not a responsive submission”, and made the costs order.

20    At the hearing of the appeal, this Court raised with the Minister’s lawyer, and with the appellant, questions about the process undertaken by the Federal Circuit Court. In the end, through a combination of very proper concessions made by the Minister’s lawyer, and a review of the transcript of the Federal Circuit Court hearing, the Federal Circuit Court’s formal reasons and the notice of appeal to this Court, the following facts may be found:

(a)    The appellant relied on an interpreter for his participation in the hearing before the Federal Circuit Court, and he was – as I have noted – not represented by a lawyer.

(b)    The Federal Circuit Court delivered contemporaneous reasons for the orders it pronounced.

(c)    The Federal Circuit Court hearing lasted for one hour, including the delivery of contemporaneous reasons.

(d)    The orders were interpreted to the appellant. At the hearing the appellant called the orders the “formal letter”, but I am satisfied this is what he meant.

(e)    The appellant did not receive a copy of the transcript of the contemporaneous reasons.

(f)    The appellant had to prepare and file his notice of appeal without having received any written version of the Federal Circuit Court’s reasons for the orders it made.

(g)    The Federal Circuit Court’s reasons for judgment, as they were published, were not published until 18 July 2019, more than a month after the appellant filed his notice of appeal in this Court, and well outside the period in which a notice of appeal was required to be filed.

(h)    There is no way that the Court can compare what was said by the Federal Circuit Court in its contemporaneous reasons with what were the published reasons of the Federal Circuit Court for its orders, including the extent of any similarity between the two sets of reasons.

21    At the hearing of the appeal, the following exchange occurred between the Court and the appellant, after the Minister’s lawyer indicated she had no objection to the appellant being asked about this matter:

HER HONOUR: AAM17, can I ask you this. When the judge, the Federal Circuit Court judge gave his decision in court that day, did the interpreter interpret the decision for you?

THE INTERPRETER: I wasn’t informed at that time. When I was provided with a letter, that’s when I was told that the case had been dismissed.

HER HONOUR: So as the judge delivered his decision, setting out what his decision was, that was not interpreted to you?

THE INTERPRETER: I was only asked about a case. Initial explanation, I was told that the – the hearing ..... but after the two questions were asked, I was not given an opportunity to submit anything. It’s only then a paper with the decision typed on it was provided to me that the decision was actually explained to me.

HER HONOUR: Yes. I – the transcript of the hearing suggests that you received a copy of the orders the court – the judge made. Is – is that right?

THE INTERPRETER: Yes. I was given a copy of the decision. I was given a copy of the decision and that’s when I was told, “your case is dismissed”.

HER HONOUR: Yes. And the transcript records you saying this:

Your Honour, my case has not even been reviewed properly, and then now the decision has been made that it has been dismissed.

Do you remember saying that?

THE INTERPRETER: Yes, I did.

HER HONOUR: Yes. All right. But when the judge was explaining his reasons for the decision, that was not interpreted to you. Is that right?

THE INTERPRETER: I was told by the judge that they will be reviewing my case and giving me the opportunity, and they will be asking me the questions relating to the case. After that, the judge was speaking for some time, and then the formal letter was given to me and I was told what had been asked of me and that my case had been dismissed.

22    Since she had not appeared at the Federal Circuit Court, I gave the Minister’s lawyer an opportunity to seek instructions whether the Minister contended the Federal Circuit Court’s contemporaneous reasons had been interpreted to the appellant. After the hearing and by email, the Minister’s legal representatives confirmed they were not able to say whether this had occurred.

23    Based on what the appellant said, what is and is not in the Federal Circuit Court transcript and the matters I refer to at [20] above (including the duration of the hearing), I am satisfied the Federal Circuit Court’s oral and contemporaneous reasons were not interpreted to the appellant. As I have noted above, that meant although he had the orders (which, I find, is what he called “the letter”), he had no explanation at all, which was intelligible to him, of how or why the Court had made those orders. He did not receive any explanation until he received the formal written reasons of the Court, at some time after 18 July 2019.

24    Relevant to the effect of these factual findings is the Full Court’s decision in CQX18 v Minister for Home Affairs [2019] FCAFC 142; 372 ALR 137, to which the Minister properly referred the Court. In that case, a ground of appeal was that (set out at [3] of the Full Court’s decision):

… 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.

25    In CQX18, the argument was not put precisely as a denial of procedural fairness by the Federal Circuit Court, but ultimately (and without rehearsing the detail, which is not relevant for present purposes) that was the basis on which the matter came to be considered by the Full Court. The Minister conceded there had been a denial of procedural fairness, and consented to the Federal Circuit Court’s orders being set aside. The Full Court’s reasons explain why it was satisfied the consent orders were appropriate.

26    The features of the Federal Circuit Court hearing which the Full Court emphasised were set out at [10] of its reasons:

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.

(Original emphasis.)

27    Plainly, not all of those features were applicable to the hearing experienced by the present appellant before the Federal Circuit Court, although on the present appeal there was no evidence one way or the other whether the Minister’s written submissions had been interpreted for the appellant. It is also clear from the transcript that the appellant had not received the Minister’s affidavit about the s 438 notification. Those matters form part of the context, but the real issue here relates to the inaccessibility of the Court’s reasons to the appellant. Therefore, the facts of this case raise a different, but related, issue to those raised in CQX18, as I explain below.

28    Further, and critically for this appeal, at [11], the Full Court in CQX18 said:

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.

29    In the present case, the Federal Circuit Court made no orders deferring or staying the operation of the Court’s orders until its reasons for judgment were published. Indeed, one available inference on the chronology is that a practice may have developed, at least amongst some Federal Circuit Court judges, of not preparing any formal, publicly available reasons for the Court’s orders, and only doing so as a reaction to the filing of a notice of appeal. If that is correct, if he had not filed an appeal, this appellant would never have had access to an explanation from the Court, intelligible to him, about the reasons for the orders it made.

30    So far as I have been able to ascertain, there is no practice direction nor any other published policy of the Federal Circuit Court which indicates that it will adopt a practice of giving oral and contemporaneous reasons which will not be reduced to writing and published unless a notice of appeal is filed. It is not a matter that an unrepresented, non-English speaking asylum seeker in the position of the appellant could be expected to know about, even if it has somehow developed into a common practice. Further, there is no evidence that persons in the position of the appellant are informed they can obtain a copy of the transcript of the contemporaneous reasons, or, if they cannot afford one, inspect it at the Federal Circuit Court Registry. Indeed, it is unclear whether the Minister had access to the transcript of the Federal Circuit Court’s contemporaneous reasons.

31    In any event, a practice of producing formal reasons after a notice of appeal is filed in this Court could only be justified if a person in the position of the appellant had reasonable and timely access to some form of the Federal Circuit Court’s initial reasons for its orders, and that form was intelligible to the person. That could occur in a number of ways: by giving the person a copy of the transcript of the contemporaneous reasons, or having those reasons interpreted in a way that would allow the person to take notes so as to be able to understand, and seek advice or assistance about, the Federal Circuit Court’s reasons, or informing the person that she or he could request a copy of the Federal Circuit Court’s reasons and also staying the effect of the Federal Circuit Court’s orders pending the delivery of any requested reasons to that person. Whatever method might be adopted (and these examples may not be exhaustive), the key point is that the person affected adversely by the orders has reasonable and timely access to an intelligible explanation of why the orders were made, within a period that does not prejudice her or his statutory right to appeal, taking into account the obvious fact in the migration jurisdiction of the Federal Circuit Court that many self-represented applicants will need access to some form of assistance before exercising their right to appeal.

32    The present appellant asked for and had access to an interpreter for the Federal Circuit Court hearing. The Federal Circuit Court’s provision of an interpreter recognised, properly, that he was entitled to participate in and understand the proceedings in which he had a vital interest, and much at stake, in a language in which he could have full and proper comprehension of what was being said, and what may have been explained to him.

33    Neither the Federal Circuit Court in its original supervisory jurisdiction, nor this Court in its appellate jurisdiction, are engaged in any kind of charade, or pretence, at administering justice. The reasons for the exercise of judicial power must be reasonably and practically available to the litigants who are affected by that exercise of power, especially those adversely affected. Those reasons must be provided in a form that is, or is capable of being, intelligible to them. The interpretation of oral and contemporaneous reasons is likely to suffice. Provision of written reasons which enable a person to seek assistance to understand them is also likely to suffice.

34    An exercise of judicial power is conditioned by an obligation to afford procedural fairness to the parties who are the subject of that exercise of power. In SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445, Allsop CJ said at [55]:

The appellant is entitled, and was entitled, to a hearing reflecting the indicia of the exercise of the judicial power of the Commonwealth. He may well have lost his case, but he is entitled to lose his case after a hearing which has afforded him procedural fairness as an incident of the exercise of the judicial power of the Commonwealth.

35    That fairness extends to the provision of reasons for the exercise of judicial power. The giving of reasons for final orders is a defining characteristic of a court: see Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54]-[58] (French CJ and Kiefel J) and [92] and [94] (Gummow, Hayne, Crennan and Bell JJ); Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [67] (Gageler J).

36    In Condon at [194], Gageler J expressed the role of procedural fairness in the exercise of judicial power thus:

There should be no doubt and no room for misunderstanding. Procedural fairness is an immutable characteristic of a court. No court in Australia can be required by statute to adopt an unfair procedure. If a procedure cannot be adopted without unfairness, then it cannot be required of a court. “[A]brogation of natural justice”, to adopt the language of the explanatory notes to the Bill for the COA, is anathema to Ch III of the Constitution.

(Footnote omitted.)

37    In my opinion, it is an unfair procedure, and a denial of procedural fairness in the sense explained by Gageler J in Condon, for orders to be pronounced at a final hearing of a judicial review application, with reasons delivered orally and contemporaneously to a self-represented litigant who is using an interpreter, without those reasons being interpreted, and without provision of any version of written reasons to that litigant as soon as practicable after the orders are pronounced. That denial is not cured by the production of formal written reasons a month or more after the expiration of the appeal period, and after the filing of a notice of appeal.

38    The Minister contended that there was no denial of procedural fairness in the present case because the appellant in fact filed a notice of appeal on time, and did not seek to amend it once he did receive a copy of the Federal Circuit Court’s reasons. I do not accept that submission. First, the absence of any application to amend is a factor of little weight with a self-represented asylum seeker. Second, what the appellant lost in a real and practical sense was the opportunity – within the appeal period – to take a document containing the Federal Circuit Court’s reasons for its orders to a person or persons who might assist him in formulating and preparing an appeal. He lost the opportunity even to attempt to explain in his own words to those who might assist him, what he understood to be the explanation for the orders, having had the oral and contemporaneous reasons interpreted to him.

39    Whoever may have assisted the appellant was doing so with no knowledge of why the Federal Circuit Court made the orders it did. This Court’s appellate function is focussed on what is contained in a notice of appeal. Although appropriate allowances are made for self-represented, non-English speaking asylum seekers, in exercising its appellate jurisdiction, this Court must consider what is contained in the notice of appeal: that document is the foundation of the Court’s jurisdiction. Again, these processes are not to be turned into some kind of charade. If the Court expects even self-represented litigants to attempt to formulate grounds of appeal, then a necessary precondition to that process is for those litigants, and any persons who may assist them, to have reasonable access to the reasons for judgment of the Court making the orders from which the appeal is brought.

40    Further, the function of reasons is wider than the facilitation of a right of appeal. A litigant is entitled to an explanation of why a court exercised judicial power in the way it did: see Wainohu at [55]-[56] (French CJ and Kiefel J); DL v The Queen [2018] HCA 26; 356 ALR 197 at [32] (Kiefel CJ, Keane and Edelman JJ) and [131] (Nettle J, in dissent on the outcome). Separately, and fundamentally, by the process adopted by the Federal Circuit Court the appellant was denied the opportunity to understand at all why he had lost his case.

41    It is the combination of circumstances in this case which has led me to conclude that the process adopted by the Federal Circuit Court at the hearing on 16 May 2019, and the making of final orders in those circumstances, involved a denial of procedural fairness to the appellant. The orders were made without giving the Court’s reasons for decision to the appellant in a form he was able to understand, or able to seek assistance to have explained to him. If the reasons had been interpreted, that may have been sufficient. If formal reasons were produced in a few days, then even if the reasons were not interpreted, that may have been sufficient. If the appellant had been given access to the transcript of the oral and contemporaneous reasons, that may have been enough. So too if the orders had been stayed pending the provision of written reasons, even without any interpretation on the day of the hearing. It is the fact that none of these alternatives occurred, and there was no interpretation at the time of the Court’s reasons, which involves a denial of procedural fairness. The failure to adopt any of these methods interfered with the way in which the appellant could exercise his right of appeal, and denied him the opportunity to seek any assistance about possible grounds of appeal, or whether indeed he should appeal at all. It also denied him access to any explanation, intelligible to him or capable of being explained to him by anyone whose assistance he might seek, of why the Court made the orders it did. The failure to adopt any of these methods subverted the exercise of judicial power itself, the giving of reasons being a defining characteristic. There was no real exercise of judicial power in these circumstances: Nicholas v The Queen [1998] HCA 9; 193 CLR 173 at [74] (Gaudron J); Re Nolan; Ex parte Young [1991] HCA 29; 172 CLR 460 at 496-7 (Gaudron J); Wainohu at [44] (French CJ and Kiefel J); North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41; 256 CLR 569 at [39] (French CJ, Kiefel and Bell JJ); Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) [2018] FCAFC 203; 363 ALR 464 at [101] (Allsop CJ, Collier and Rangiah JJ).

42    The orders must be set aside. The matter must be remitted to the Federal Circuit Court, to be heard and determined according to law by a judge other than the Judge who previously heard the proceeding: this being the form of order made by the Full Court in CQX18.

Other aspects of the Federal Circuit Court decision

43    Aside from the two matters which I consider below, having looked at the Federal Circuit Court’s decision, and that of the Tribunal, I do not consider the approach taken by the Federal Circuit Court to the judicial review of the Tribunal’s decision discloses any possible error deserving of close consideration by this Court on appeal.

44    When asked during the appeal hearing if there was anything he would like to say about the Tribunal’s decision, the appellant made two substantive points. First, he contended the Tribunal looked at his claim “at the international level” or from an “international perspective”, relying on information such as media reports. He maintained the Tribunal did not assess the “situation on ground”, or the problems he faced as an individual. Second, he contended the Tribunal did not appreciate the seriousness of the situation he would face if returned to Pakistan.

45    Even if those matters were, favourably to the appellant, to be added to his grounds of appeal, there is no basis to identify any jurisdictional error in the Tribunal’s approach because of those matters. The Tribunal did not accept the risk to the appellant was as high as he put it. That was a matter for the Tribunal, and it was entitled, as it did, to consider country information produced by international organisations and national governments in making that assessment. That information did descend to what the situation was like “on the ground”, although it is clear the appellant did not consider it did so accurately. That reflects his disagreement with the Tribunal’s opinion about his claim, but that is not a legal basis for this Court to overturn the Tribunal’s decision.

46    There are, however, two aspects of the Tribunal’s reasoning, which were considered by the Federal Circuit Court, which should be more closely examined. They are the Federal Circuit Court’s approach to:

(a)    the s 438 certificate (see [42]-[43] of the Federal Circuit Court’s reasons); and

(b)    the appellant’s contention that the Tribunal conflated its task in considering protection obligations under the Refugees Convention with the complementary protection criteria (see [35]-[38] of the Federal Circuit Court’s reasons).

The s 438 issue

47    There was a s 438 certificate given to the Tribunal, which was not disclosed to the appellant. However, having heard the Minister’s submissions on this matter, and having looked at the material which was the subject of the s 438 certificate, I accept that there was no error in the approach taken by the Federal Circuit Court to this matter. The contents of the documents concerned the appellant’s migration history, and that history was apparent to the Tribunal from the other material before it. Insofar as the Tribunal examined the appellant’s migration history and took it into account, it did so not by reason of the documents to which the s 438 certificate applied, but because the material was otherwise available to it, and it had raised the migration history with the appellant.

The conflation argument

48    Having heard the Minister’s submissions on this aspect of the Tribunal’s reasons, and especially on [94]-[97] of the Tribunal’s reasons, then notwithstanding that other earlier aspects of its reasoning on complementary protection might have suggested the Tribunal was erroneously searching for some kind of attribute or reason which might cause the appellant to be subjected to serious harm, I am satisfied the Tribunal also went on to apply the correct approach to determining whether the appellant was owed complementary protection.

Conclusion

49    It may appear that the relief granted to the appellant is unwarranted. The Court has not found any error in the way the Federal Circuit Court approached the exercise of its supervisory jurisdiction in relation to the Tribunal’s decision-making. That assessment on appeal is based, however, on its reasons published more than a month after the notice of appeal was filed, not on its contemporaneous reasons. As I have noted, there is no way for this Court to know if the two sets of reasons were the same. If they were, it is difficult to understand why it took the Federal Circuit Court more than two months to publish its formal reasons. However, there may well be other explanations for that kind of delay.

50    The point of procedural fairness lies in the fairness of the process, not any assessment of the fairness of the outcome: see, by analogy, the observations of Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [55]-[60]. Here, the opportunities lost to the appellant were, first, to understand for himself why he had not succeeded in his attempt to overturn the Tribunal’s decision; second, to consider for himself what he might want to argue on any appeal, by reference to how the Federal Circuit Court had explained its rejection of his application; and third, to secure assistance in formulating his grounds of appeal from a person who could read and digest the Federal Circuit Court’s reasons for its orders.

51    The denial of procedural fairness by the Federal Circuit Court is clear, and serious. Unless orders are made setting aside its decision, the denial will remain uncorrected. There is only one way to correct it: by setting aside the Federal Circuit Court’s orders. If that places the appellant in the position of having a further opportunity to persuade the Federal Circuit Court that the Tribunal’s decision is affected by jurisdictional error, then in my opinion that is a similar consequence to other circumstances where a denial of procedural fairness is identified.

Associate:

Dated:    25 November 2019