Federal Court of Australia

BFN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 12

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MAROVIC J:

1    This is an appeal from a decision of the then Federal Circuit Court of Australia (now known as the Federal Circuit and Family Court of Australia) dismissing an application for judicial review of the second respondent (Authority). The Authority affirmed a decision of a delegate of the first respondent (Minister) refusing the grant of a safe haven enterprise visa (SHEV) to the appellant.

Background

2    The appellant arrived in Australia on 30 January 2013. On 11 May 2016 he lodged an application for a SHEV.

3    On 13 December 2018 a delegate of the Minister found that the appellant did not meet the criteria for the grant of a SHEV and refused his application.

4    On 19 December 2018 the Authority notified the appellant that the delegate’s decision had been referred to it for review on 18 December 2018.

5    On 22 February 2019 the Authority affirmed the delegate’s decision. Given the grounds of appeal it is not necessary to set out the Authority’s reasons for doing so.

6    The appellant sought review of the Authority’s decision in the Circuit Court.

The Circuit Court Proceeding

The application before the Circuit Court

7    In his amended application filed in the Circuit Court the appellant raised two grounds of review:

Ground One:

The Immigration Assessment Authority has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).

    Particulars:

In dealing with the [appellant’s] claims under Section 36(2)(aa) of the Migration Act, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.

Ground Two:

    The IAA denied procedural fairness to the [appellant].

The hearing before the Circuit Court

8    On 18 September 2019 the appellant’s application was listed for hearing. The appellant was represented by counsel. At the conclusion of argument the primary judge delivered an ex tempore judgment dismissing the application and made orders (September Orders) including an order that:

6.    The transcript of the published oral reasons may be released to any party if they so request and the transcript of the published oral reasons will not be settled by the Court.

And a notation that:

1.    The Court expects Auscript to comply with the above order 6 by the Court.

9    The Circuit Court did not formally publish its reasons. However, the transcript of the oral reasons referred to in the preceding paragraph has been produced on what appears to be an incomplete judgment template of the Circuit Court. The document is not certified as a “true copy” of the reasons for judgment of the primary judge, has several “placeholders” on the incomplete cover sheet and, at one point in the written text, contains an ellipsis.

The primary judge’s reasons

10    The primary judge summarised the Authority’s findings and turned first to consider ground 1. His Honour noted that the appellant in substance advanced two arguments. First, the appellant argued that there was no determination of his citizenship or nationality solely by reference to the law of the country of Bangladesh as required by ss 5, 36(6) and 36(7) of the Migration Act 1958 (Cth). Secondly, the appellant contended that the absence of a passport meant either that he might face harm, which he said should have been addressed by the Authority as a separate integer of his claims, or that he may be perceived as stateless.

11    The primary judge rejected both submissions. In relation to the first, his Honour found that the delegate’s decision clearly identified that, having found that the applicant was a citizen of Bangladesh, no issue or question was raised that required determination of the appellant’s nationality or citizenship. In those circumstances there was no requirement for the Authority to refer to the law of Bangladesh.

12    In relation to the second, the primary judge noted that the appellant relied on paras 26 and 30 of the Authority’s reasons, which referred to the appellant’s illegal departure from Bangladesh, in support of the proposition that there was an integer of his claim concerning the absence of a passport that should have been the subject of an express finding. His Honour observed that the Authority had made an adverse finding about the appellant’s illegal departure based on country information that was open to it and that the appellant had not advanced or fairly raised a claim that he feared harm by reason of not having a passport. The primary judge also found that no claim in respect of the appellant being stateless arose from the material put before the Authority. His Honour concluded that no jurisdictional error was established by ground 1.

13    In relation to ground 2, the primary judge noted that the Authority referred to country information indicating that the Immigration Ordinance Act 1982, a law of Bangladesh, makes it an offence punishable by imprisonment or fine to depart Bangladesh, other than in accordance with the procedures laid down in that legislation, but that the Department of Foreign Affairs and Trade is unaware of any case in which the authorities have enforced those provisions.

14    The primary judge observed that, by ground 2, the appellant sought to rely upon legislation which repealed the Ordinance to contend that the Authority’s decision was illogical, irrational or the subject of error by reason of being based upon repealed legislation. His Honour noted the appellant’s concession that the repealing legislation was not before the Authority or identified in any submission advanced to the Authority and considered that the appellant was seeking to adduce evidence in relation to the repealing legislation as a fresh fact in relation to country information.

15    The primary judge observed that both the Minister’s delegate and the Authority had referred to the Ordinance and that the appellant was given an opportunity to put on new information and submissions but did not do so. Accordingly, no jurisdictional error arose by reason of the Authority acting on the country information before it in relation to the Ordinance. His Honour also noted that, in any event, the appellant was unable to establish the foundation for ground 2 because the evidence which the appellant had sought to adduce in support of that ground had been rejected.

Events following the Circuit Court proceeding

16    On 9 October 2019 the appellant filed a notice of appeal in this Court.

17    On 7 September 2020 the solicitors for the Minister sent an email to the chambers of the primary judge, copying in the appellant’s solicitors, which relevantly included:

I refer to the above matter which was heard and determined by his Honour Judge Street on 18 September 2019 by way of an ex tempore judgement.

The applicant has since filed a Notice of Appeal in the Federal Court of Australia. Accordingly, I am writing to request that the parties be provided with his Honour’s written reasons as a matter of urgency so they may be included in the Appeal Book.

18    On 9 September 2020, the primary judge’s associate wrote to the parties in the following terms:

The Court published oral reasons and there is no power thereafter to publish written reasons. The Court’s order is clear. The transcript of the published oral reasons may be made available to either party.

19    On 10 September 2020 the solicitors for the Minister sent a further email to the primary judge’s associate, again copying in the solicitors for the appellant, in which they requested that “a transcript of his Honour’s oral reasons be made available to the parties”. In response, by email of the same date, the primary judge’s associate indicated that the transcript of the oral published reasons should be requested from Auscript.

20    On 28 April 2021 the appellant was granted leave to rely on an amended notice of appeal as filed on 30 March 2021.

The amended notice of appeal

21    In his amended notice of appeal, the appellant raises the following single ground of appeal:

The Federal Circuit Court erred in failing to provide a written form of its reasons settled by the Court.

22    The appellant relies on an affidavit sworn by him on 25 March 2021 in which, among other things, he says that:

(1)    he is a citizen of Bangladesh and has limited English;

(2)    he was legally represented at the hearing before the primary judge and accordingly was not assisted by a Bengali interpreter;

(3)    at the end of the hearing the primary judge pronounced judgment in English but he did not understand a word said by the primary judge; and

(4)    his legal representative provided him with a copy of the September Orders and he was told that his application had been dismissed with costs in the amount of $5,100 and that the primary judge had “rejected to accept the evidence which the [Authority had] relied upon in their decision, and which was advanced as a ground in the Amended Application”.

The appellant’s submissions

23    The appellant submitted that the primary judge mistook the scope of his power and duty to provide adequate reasons. He contended that a court clearly does have power to publish written reasons reflecting an ex tempore judgment and that, by refusing to provide reasons when requested for the purposes of an appeal, the primary judge erred in law and eschewed his duty to provide adequate reasons.

24    The appellant submitted that the document obtained from Auscript does not remedy the difficulty because he cannot rely on it as a true record of the primary judge’s reasoning. That is because it appears in an uncompleted form of the Circuit Court’s judgment template, is not certified as a true copy of the primary judge’s reasons for judgment and, accordingly, cannot be said to constitute the operative reasons of the Circuit Court on the basis of which the present appeal can proceed.

25    The appellant sought to distinguish the decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 noting that an aspect of the High Court’s reasoning in that case was that, although an ex tempore decision had not been interpreted for the first respondent in that case, at the time of the hearing of the appeal in this Court the first respondent had access to published written reasons of the Circuit Court which were certified as a true copy of the reasons for judgment and which constituted the operative reasons of the Circuit Court for the purposes of the appeal. The same could not be said in this case.

26    The appellant submitted that it is not necessary in every case for a judge to provide a settled written form of reasons for a judgment delivered ex tempore but rather, in the circumstances of this case, the primary judge’s refusal to settle a written form of his reasons and to provide such reasons to the parties when requested was incompatible with the judicial duty to provide adequate reasons. He contended that the failure to discharge the duty represents an error of law.

27    The appellant submitted that it follows from the failure to discharge the duty to provide adequate reasons that there was no real exercise of judicial power by the primary judge or, put another way, there was a constructive failure to exercise judicial power. He said that the provision of reasons is an essential and defining characteristic of the judicial function and referred to SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at [55] where Allsop CJ said that “[t]he appellant is entitled, and was entitled, to a hearing reflecting the indicia of the exercise of the judicial power of the Commonwealth”.

Consideration

Legal principles

28    In Wainohu v New South Wales (2011) 243 CLR 181 at [54]-[58], in considering whether the Crimes (Criminal Organisations Control) Act 2009 (NSW) was, or certain provisions of it were, invalid, French CJ and Kiefel J (as her Honour then was) said the following (at [54]-[58]) about the duty of judges to give reasons for decision:

54    The centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised. In a passage from the first edition of Broom's Constitutional Law, published in 1866, the author said:

"A public statement of the reasons for a judgment is due to the suitors and to the community at large – is essential to the establishment of fixed intelligible rules and for the development of law as a science … A judgment once delivered becomes the property of the profession and of the public; it ought not, therefore, to be subsequently moulded in accordance with the vacillating opinions of the judge who first pronounced it."

That passage was said in the Supreme Court of Victoria to have "general application to all persons exercising judicial functions." Its universality was qualified in Public Service Board of New South Wales v Osmond by Gibbs CJ, who said that there was no "inflexible rule of universal application" that reasons be given for judicial decisions. His Honour, however, accepted that the requirement to give reasons is "an incident of the judicial process".

55    The duty upon judges to give reasons for their decisions has often been linked to the availability of rights of appeal against those decisions. A wider rationale, foreshadowed in the passage quoted from Broom, can be derived from the nature of the judicial function. In Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd, Mahoney JA, after referring to the importance of reasons for decision to the effective exercise of appeal rights, said:

"But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process."

The proposition that the provision of reasons for decision is an aspect of the judicial function has been supported by other decisions of the Supreme Courts of New South Wales, Victoria and Queensland.

56    Gummow J in Grollo described the essential attributes of the judicial power of the Commonwealth in familiar terms by reference to the resolution of justiciable controversies by ascertainment of the facts, application of the law and the exercise where appropriate of judicial discretion, adding "which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning." Heydon J in AK v Western Australia described the duty of judges to give reasons for their decisions after trials and in important interlocutory proceedings as "well-established". His Honour adopted as a summary of the objectives underlying that duty an extra-curial statement by Gleeson CJ:

"First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Secondly, the general acceptability of judicial decisions is promoted by the obligation to explain them. Thirdly, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions."

The duty does not apply to every interlocutory decision, however minor. Its content – that is, the content and detail of the reasons to be provided – will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.

57    The connection between the duty to give reasons and the nature of the judicial power enunciated in Grollo, and the objectives which that duty serves, explained in AK, marks the duty as an incident of the judicial function whether or not the court making the relevant decision is subject to appeal. …

58    The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion.

(Footnotes omitted.)

29    The content of the duty to give adequate reasons depends upon the circumstances of the matter being considered. It is not necessary for reasons to be elaborate or lengthy for them to be adequate: Thorne v Kennedy (2017) 263 CLR 85 at [61].

30    The duty imposed on a judge of the Circuit Court upon delivery of ex tempore reasons was considered in AAM17. In that case, the first respondent sought judicial review in the Circuit Court of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister refusing the grant of a protection visa. The first respondent was not legally represented before the Circuit Court and relied upon an interpreter. At the conclusion of the hearing the Circuit Court delivered ex tempore reasons for the orders it pronounced. At the time, the court’s orders were interpreted for the first respondent but the oral reasons were not. The first respondent did not receive a transcript of the ex tempore reasons for judgment and had to prepare his notice of appeal to this Court without regard to any written reasons. The written reasons of the Circuit Court were published more than a month after the first respondent had filed his notice of appeal and outside the period in which a notice of appeal was required to be filed. Although this Court found that there was no error affecting the decision of the Tribunal, the appeal was allowed on the basis that the failure by the Circuit Court judge to have his reasons translated for the first respondent’s benefit constituted a denial of procedural fairness.

31    The issue before the High Court in AAM17 was whether, as had been found to be the case on appeal, the failure to have ex tempore reasons translated at the time of their delivery coupled with the failure to produce written reasons in a timely fashion amounted to a denial of procedural fairness. At [22] Steward J (with whom Kiefel CJ, Keane, Gordon and Edelman JJ each agreed) held that the final instance of the right of either party arising from the Circuit Court judge’s obligation to afford procedural fairness was at the time the parties made their closing submissions and thereafter procedural fairness had no role to play in respect of the matters the subject of the Circuit Court judge’s decision. However, his Honour also observed that “[a]s a matter of general fairness, rather than independent legal duty, the first respondent ought to have had the benefit of translated ex tempore reasons or written reasons at an earlier time”.

32    Commencing at [23] Steward J set out a number of propositions including the following concerning the position of the Circuit Court:

(1)    the Circuit Court is an inferior court, has no inherent powers and, as a creation of Parliament, has no authority other than that conferred on it by legislation. In that regard neither the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) nor the Federal Circuit Court Rules 2001 (Cth) (FCCA Rules), being the legislation in force at the time, addressed the topic of whether the Circuit Court is required to give written reasons or, if ex tempore reasons were delivered, whether they were required to be translated: at [26];

(2)    s 74(1) of the FCCA Act required an order of the Circuit Court to be in writing or reduced to writing as soon as practicable: at [27];

(3)    s 75 of the FCCA Act concerned what is to happen if the Circuit Court reserves judgment and the judge who heard the proceeding “subsequently prepares orders and reasons” but is not available to publish them. His Honour found that the FCCA Act authorises a Circuit Court judge to give ex tempore reasons and final orders upon completion of a hearing and also to reserve judgment where it is not possible or desirable to deliver ex tempore reasons: at [28];

(4)    the FCCA Rules did not resolve the issue that arose for determination and, while those rules made certain provision for the receipt of translated documents, no such provision was made in relation to giving judgment. His Honour said that “there was no reason to suppose that a ‘judgment’ or ‘order’ for the purposes of the FCCA Rules is subject to a requirement that it be translated to a non-English speaking litigant where no such obligation conditions the power to give judgement or make orders under the FCCA Act”: at [29]; and

(5)    the nature of the Circuit Court’s jurisdiction also supports the giving of ex tempore reasons which are later published in written form with revisions: at [30].

33    At [32] Steward J said:

Sixthly, and contrary to the submission of the first respondent, where written reasons of a court are published following the giving of ex tempore reasons, those written reasons must be taken to be the authentic expression of the judgment of the court unless it is otherwise shown that those reasons had materially deviated from what had been announced in court. Such deviations might be demonstrated by calling for the transcript (or other recording) of the ex tempore judgment; by the production of notes taken by counsel or by an instructing solicitor of what was said; or even by evidence given by counsel or an instructing solicitor in lieu of such notes. In Bromley v Bromley, following the grant of a decree nisi of divorce, the wife sought the transcript of the judge's reasons for judgment. With two days left to appeal, a photograph of a revised transcript was produced by the shorthand writer to the wife, bearing the marked-up amendments and deletions made by the judge. The wife submitted that the changes that had been made were material in nature and urged the Court of Appeal to examine the original transcript. It was said that certain of the judge's findings of fact in the original transcript, or the way in which he expressed his findings of fact as recorded in that transcript, ill-accorded with the conclusion at which he ultimately arrived. The Court of Appeal refused to inspect the original transcript. Willmer LJ said that in the absence of evidence to show that the judge had "so altered his judgment as to change its whole character", it would be "improper" for an appellate court to look at the original transcript "merely because it is the original transcript". Importantly, his Lordship said:

"What we must look at is that which bears the stamp of the judge's approval, and on that must stand or fall the success of the appeal."

    (Footnotes omitted.)

34    In CQX18 v Minister for Home Affairs [2019] FCA 386, in considering whether the primary judge’s failure to produce a written version of his oral reasons before the time within which an appeal could be brought had expired, albeit in obiter, Perram J said at [15]-[18]:

[15]    … I doubt that a failure to reduce an oral judgment to writing within the appeal period involves jurisdictional error. There are a number of reasons for this.

[16]    First, it is not self-evident that there is any legal obligation on a Federal Circuit Court Judge to produce a written version of oral reasons at all. No such requirement appears in the Federal Circuit Court Act or the FCR. The Federal Circuit Court is an inferior court and its procedures are to be found in its constitutive legislation and in what may legitimately be inferred from that legislation: Palmer v Clarke (1989) 19 NSWLR 158 (‘Palmer v Clarke’) at 166-167 per Kirby P (citing Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 at 447 per Herron CJ, Wallace P and Manning JA). It may in light of that be doubted, I think, that the Federal Circuit Court even has a power to revise its oral judgments (although there is no occasion presently to express a concluded view on that matter). If there is no obligation to produce a written version of oral reasons then a fortiori there can be no such obligation to produce the written version at any particular time.

[17]    Secondly, whilst one may accept that the Court could produce a written version of its reasons if it chose, there is much to be said for the view that once it has pronounced its orders and given orders it is functus officio and has no further legal function: Palmer v Clarke at 172 per Kirby P, and 174 per Priestley JA; cf CLU16 v Minister for Home Affairs [2019] FCA 147 at [18] per Rares J. As such, it is conceptually difficult to see how the subsequent production of a written set of reasons can have any impact on the earlier exercise of jurisdiction.

[18]    Thirdly, if a failure to produce a written set of the oral reasons within the appeal period were a jurisdictional error, it would be difficult to ascertain when the error was made. One could not know until the expiry of the appeal time (or until the earlier delivery of the written reasons) whether the error had been made. Until either of those events, the status of the Court’s orders would be essentially unknowable. This matters because an order made by an inferior court in excess of its jurisdiction is invalid. Particularly where questions of contempt of court may intrude, it is unsatisfactory to have the orders of the court in an unknown state of validity pending ascertainment of whether the written reasons are delivered within the appeal period.

Did the primary judge err?

35    The question to be resolved is whether, as the appellant contends, the primary judge erred in refusing to provide written reasons following delivery of his ex tempore reasons, a refusal which is said to be manifested by Order 6 of the September Orders (see [8] above) and thereafter by the email dated 9 September 2020 from the primary judge’s associate to the parties. In my opinion, the answer to that question is no. My reasons for reaching that conclusion are set out below.

36    Before proceeding further I make the following observations. It is understandable that the appellant should feel aggrieved by the primary judge’s refusal to provide a form of written reasons. While the Circuit Court is a very busy court, dealing as it does with a high volume of cases on a daily basis, it also hears matters which touch upon important aspects of peoples’ lives. Indeed, given the nature of the particular jurisdiction conferred by the Migration Act which so affects a litigant’s status and the number of unrepresented litigants and litigants for whom English is not their first language or who appear with only a very basic understanding of it in that jurisdiction, the approach adopted by the primary judge in this case was regrettable and one which I would actively discourage, having regard, among other things, to the open court principle which includes as an aspect of it the provision of reasons, albeit not necessarily as a formalised judgment of the relevant court.

37    As set out above, in AAM17 Steward J observed that as a matter of general fairness in the circumstances of that case, where the timing of the provision of written reasons was in issue, the first respondent ought to have had the benefit of translated ex tempore reasons or written reasons at an earlier time. The same holds true here. That is, as a matter of general fairness, the appellant ought to have had the benefit of written reasons reflecting the ex tempore reasons delivered by the primary judge. That is even more so given the request made by the parties for those reasons to be provided.

38    Although the appellant was given access to the transcript, concern has previously been expressed about use of transcript as a substitute for formal reasons of a court, albeit in the particular circumstances which applied in each case.

39    In Matenson v Matenson [2018] FamCAFC 133 the parties, who were both self-represented, agreed that the transcript of the proceeding before the primary judge would constitute the primary judge’s reasons. In obiter, at [45]-[46], Murphy J said the following about this approach:

[45]    In the absence of argument or reference to authority and noting the self‐representation of both parties, these reasons are not the place to express a concluded view as to whether in the particular circumstances of a particular case — including for example, the narrowness of the issues to be determined and the proximity of a trial — the transcript can be taken to be the reasons for decision.

[46]    I am currently inclined to the view that it is the adequacy of reasons in the particular circumstances of the case that is the central issue as distinct from the form of the reasons, with the consequence that the transcript might, in some limited circumstances, form adequate reasons. That said, I am equally of the view that such occasions should be rare — the provision of reasons for decision is central to the judicial function and the principles of transparent justice.

(Emphasis added.)

40    To similar effect, in Keehan v Keehan (No 2) [2018] FamCAFC 139 Murphy J (with whom Aldrige and Kent JJ agreed) at [18], again in obiter, said:

This is by no means the first case in which an appeal from the Federal Circuit Court of Australia has seen no formal reasons and either an express or implied reliance upon the transcript as those reasons. Whether or not as a matter of law the transcript can stand as reasons, it is a practice – certainly in respect of a trial – which, with all respect, in my view, should cease. Whatever might be thought of the merits of a party’s case, formal reasons, however brief and suited to the proceedings at hand, are an essential part of transparent justice.

(Emphasis added.)

41    Despite those views, in this case I am unable to conclude that the refusal to settle the transcript of the oral reasons amounted to a failure by the primary judge to validly exercise his judicial power.

42    By Order 6 of the September Orders the primary judge relevantly did two things: he ordered that the transcript of the oral reasons be made available to the parties; and that the transcript would not be settled by the Court. It is the latter with which the appellant takes issue.

43    It was not in dispute that a judge has a duty to give reasons for his or her decisions and that the giving of reasons is an incident of the judicial function. However, the primary judge discharged that duty upon delivery of his ex tempore judgment. It is clear that the primary judge had authority to make orders and to deliver oral reasons for judgment at the conclusion of the hearing: see AAM17 at [28].

44    The ex tempore reasons were recorded at the time they were delivered and the primary judge, by Order 6, sought to ensure access to the transcript of those reasons by the parties. His Honour also made a notation on the September Orders of an expectation that Auscript, the provider of transcript services, would comply with Order 6. That notation was made, I would infer, to ensure that all parties, including potentially unrepresented and/or impecunious parties, had access to the written record of the oral reasons. The transcript of those reasons was obtained and a copy was before me on the appeal. However, the appellant said that there was an inherent obligation or requirement for the primary judge to provide a settled version of the ex tempore reasons which are set out in that transcript. I do not agree.

45    First, as was observed by Steward J in AAM17 at [26] the Circuit Court is an inferior court of record, has no inherent powers and, being "a creature of Parliament", has no authority other than that conferred on it by legislation which relevantly, at the time, was the FCCA Act and the FCC Rules. His Honour found that there were no provisions in either the FCCA Act or the FCCA Rules concerning whether the Circuit Court is obliged to give written reasons. In the context of this case, that is illustrated by the following. Section 85 of the FCCA Act provided that the rules of court may make provision for or in relation to, among other things, the form in which the Circuit Court or a judge is to give reasons for decision. However, the FCCA Rules contained no rules concerning the procedure to be followed after delivering ex tempore reasons such as a requirement that a written version of the reasons be delivered or, indeed, going to the subject of written reasons at all.

46    Secondly, I was not taken to any authority to support the appellant’s proposition.

47    Thirdly, as I have already observed the authorities clearly impose a duty on judicial officers to give reasons which must be adequate. That requirement has been described as “an incident of the judicial process” but, as observed by Gibbs CJ in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667, it is “a normal but not universal incident”. However, none of the authorities to which I was taken required, or even suggested, that when reasons are given orally or ex tempore they must be reduced to a settled form of writing.

48    Fourthly, a written form of reasons produced after the delivery of ex tempore reasons does not supplant the oral reasons. While those written reasons are taken to be the “authentic expression” of the court’s judgment, that record must not materially deviate from the oral reasons which it reflects: see AAM17 at [32]. A judge may improve his or her expression in any subsequent written expression of those reasons but changes of substance are not permitted: see AAM17 at [31]. It follows that in circumstances where ex tempore reasons are delivered, those reasons remain the reasons of the Court whether or not an authentic record of them is subsequently created by the judge.

49    The appellant relied on a series of decisions in which this Court has addressed the need, following the delivery of an ex tempore judgment, for written reasons to be delivered in a timely fashion.

50    In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195, in considering the question of delay in the context of an application for leave to appeal from a decision of the Circuit Court, at [26] a Full Court of this Court (Perram, Farrell and Perry JJ) said:

Thirdly, while the appellant was present in court when the primary judge gave an ex tempore (oral) judgment, he has given a reasonable explanation for the delay. Nor did the Minister suggest otherwise. The late publication of the reasons meant that the appellant had no written statement of reasons on the basis of which to seek legal advice, or to assess, whether or not to institute an appeal and, if so, on what grounds, until after the expiry of the period within which he had a right to appeal. As the Court has elsewhere observed, that is, with respect, an undesirable state of affairs. Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period. Where that may not occur, however, it should be borne in mind that FCR r 36.03(b) expressly envisages that the court appealed from may make orders deferring the commencement of the period within which an appeal may be instituted: see CTV15 v Minister for Immigration and Border Protection [2017] FCA 976 at [12]. It is also open, for example, to a Court to defer the date on which the final order as to costs is made until written reasons are published thereby achieving the same result.

51    Similar sentiments were expressed in CQX18 v Minister for Home Affairs [2019] FCAFC 142; (2019) 372 ALR 137. In that case a Full Court of this Court (Allsop CJ, Perry and Gleeson JJ) found that they were satisfied that it was appropriate to make consent orders disposing of the appeal. In doing so their Honours said at [11] and [13]:

11.    We also wish to express our concern that:

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

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

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

…

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

See too: ADIL v Minister for Immigration, Citizenship, Multicultural Services and Migrant Affairs [2019] FCA 1787 at [43] (Wheelahan J); and DVD16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 332 at [3] (Perry J).

52    Two observations can be made about these decisions. First, while there was criticism of the undesirable practice of the time taken to provide a written statement of the Circuit Court’s oral reasons, it was not suggested that the effect of the time taken to do so impacted the court’s exercise of its jurisdiction. Secondly, these cases can be distinguished from the case before me. In this case the appellant, by reason of his ability to access the transcript, had a written record of the oral reasons given by the primary judge. Unlike the appellant in, for example, Singh, he had access to a record based on which he was able to seek advice. The appellant does not complain of an inability to file his notice of appeal. In fact, he did so within the prescribed time.

53    The appellant said that Order 6 of the September Orders revealed an appealable error insofar as it represents an outright refusal by the primary judge to provide written reasons without first considering whether the oral reasons were accurately recorded in the transcript. That is, by making Order 6 the primary judge refused to exercise his discretion to produce a written record of his reasons. Relatedly, the appellant said that the primary judge erred when his associate communicated to the parties that his Honour had no power to issue written reasons.

54    As to the latter, I accept that the primary judge was in error when he communicated, through his associate, that he had no power to publish written reasons. There is nothing in the FCCA Act or FCCA Rules prohibiting the publication of reasons after the delivery of oral reasons. As is clear from the authorities, a judge is able to give ex tempore reasons which are then published in written form with revisions as appropriate: see AAM17 at [30]. However, that error does not invalidate the primary judge’s exercise of judicial power. His Honour validly exercised that power by hearing the matter, delivering an ex tempore judgment, as he was able to do, and making orders.

55    As to the former, as set out above, the primary judge’s indication, by Order 6 of the September Orders, that he would not settle a form of written reasons does not mean that he failed to give reasons. His Honour had delivered oral reasons for his decision which, as I have concluded, are the operative reasons of the Circuit Court and which had been transcribed. The transcript was then made available. Order 6 simply signalled an intention not to take further steps to issue an authenticated copy of the oral reasons.

56    Finally, the appellant raised an issue about the quality of the transcribed oral reasons, submitting that, because the transcript is not complete, it cannot be relied upon as reasons of the Court. A review of the transcript reveals the inclusion of an ellipses at para 3, presumably to indicate that certain words were not sufficiently audible or intelligible to transcribe. Paragraph 3 appears as follows:

On 19 December 2018, the authority wrote to the applicant explaining that the application for the visa had been referred to the authority for review. The letter provided an attached factsheet and practice direction, giving the applicant an opportunity to put on new information and submissions. No such documents were provided. The tribunal in its reasons identified the background to the visa application and had regard to the material ..... secretary under section 473CD of the Act.

57    That paragraph sets out a part of the background to the application before the primary judge, as opposed to the primary judge’s consideration of the grounds of review. In that regard, the missing words do not affect the ability of this Court to understand the reasons why the primary judge dismissed the application for judicial review nor the ability for the appellant to obtain advice in relation to any appeal, which I infer he did given the commencement of this proceeding.

58    It follows that I am not satisfied that the primary judge erred as alleged.

Conclusion

59    The appeal should be dismissed. As the appellant has been unsuccessful he should pay the Minister’s costs as agreed or taxed.

60    I will make orders accordingly.

Associate:

Dated:    18 January 2022