Federal Court of Australia

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The judgment of the Federal Circuit Court of Australia of 9 June 2020 is set aside.

3.    The application dated 4 April 2017 under section 476 of the Migration Act 1958 (Cth) is remitted to the Federal Circuit and Family Court of Australia (Division 2) to be heard and determined according to law.

4.    The costs of the appeal are reserved.

5.    On or before 12 May 2023 the appellants are to file and serve a minute of proposed orders for the costs of the appeal together a written outline of submissions (limited to 3 pages) and any affidavit(s) in support.

6.    On or before 19 May 2023 the respondent is to file and serve any competing minute of proposed orders for the costs of the appeal together with a written outline of submissions (limited to 3 pages) and any affidavit(s) in support.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    The reasons concern an appeal from a judgment of a judge of the Federal Circuit Court of Australia, as the Federal Circuit and Family Court of Australia (Division 2) was then known, delivered in June 2020. The primary judge dismissed the appellants’ application for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) refusing to grant the appellants protection visas.

2    For the reasons which follow, in my view, the appellants were not accorded procedural fairness in that they were not given a reasonable opportunity to particularise the grounds upon which they sought judicial review of the Tribunal’s decision. Further, it has not been demonstrated that, had the appellants been given that opportunity, the outcome of the application for judicial review would inevitably have been the same. Therefore, the appeal will be allowed, the judgment of the primary judge set aside and the matter remitted to the Circuit Court for rehearing. I will hear the parties on the question of the costs of the appeal.

Background

3    The appellants are husband and wife and are citizens of Nepal. On 16 April 2009, they arrived in Australia after they were granted student visas. On 9 September 2011, a delegate of the Minister refused an application to extend their student visas. On 26 September 2011, the appellants sought review of that decision. On 10 January 2014, the Migration Review Tribunal affirmed the delegate’s refusal decision.

4    On 31 January 2014, the appellants applied for protection visas. The basis of the appellants' claims for those visas was an alleged fear of harm in Nepal. The appellants claimed that the first appellant was a member of the Nepal Student Union that was opposed to the Janatantrik Terai Mukti Morcha, an organisation which the first appellant claimed carries out terrorist activities in Nepal. The appellants claimed that, in January 2008, members of the JTMM kidnapped and tortured the first appellant. Further, the appellants claimed that their respective families did not accept their marriage, as the second appellant was from the Chhetris ethnic group and her family practiced Hinduism while the first appellant was from the Magar ethnic group and believed in Buddhism. The appellants claimed fear of harm from their respective communities because inter-marriage between the Magar and Chhetris ethnic groups was not accepted by each of those communities.

5    On 19 June 2014, the appellants attended an interview with a delegate of the Minister in relation to their visa application. On 5 March 2015, the delegate found that the appellants failed to meet the criteria for the grant of a protection visa. On 30 March 2015, the appellants made an application to the Tribunal for review of the delegate’s decision.

6    On 21 September 2016, the appellants were invited to appear before the Tribunal. On 25 November 2016, the appellants attended a hearing before the Tribunal. The appellants appeared by video conference on that date to give evidence and present submissions. On 21 March 2017, the Tribunal affirmed the decision under review. In its reasons, the Tribunal found, amongst things, that the first appellant was not credible, that there was an absence of detailed information in relation to first appellant's active role in the NSU and there were a number of inconsistencies that brought into question the accuracy of first and second appellant's accounts of their first meeting and relationship in Nepal. The Tribunal did not accept the first appellant's claims that he was a member of NSU, that he had been victimised by the JTMM and that the appellants faced serious harm because of their inter-ethnic marriage. Similar findings of credibility were made in relation to the second appellant. Further, the Tribunal found that the appellants lived in Nepal from the time of their marriage on 24 April 2008 until their departure for Australia on 16 April 2009 without suffering serious or significant harm and that circumstance was not consistent with the claimed threat of harm from the appellants’ respective families and communities due to inter-marriage between different ethnic groups.

7    On 4 April 2017, the appellants filed an application in the Circuit Court for judicial review of the Tribunal's decision to affirm the delegate’s decision to refuse to grant each of them a visa. On 9 June 2020, judgment was delivered and the primary judge made orders dismissing the application for judicial review. On 26 June 2020, the appellants filed a notice of appeal from those orders in this Court.

Proceedings before the primary judge

8    The appellants’ application for judicial review identified two grounds for review as follows:

1.    The decision maker failed to properly consider all of my claims.

2.    The decision maker [did not] give me a chance to commence on one aspect of my claims.

9    The primary judge's reasons record that on 7 June 2017, a registrar of the Circuit Court made orders providing the appellants with an opportunity to file an amended application, affidavit evidence and submissions, but no such documents were filed. The Minister filed written submissions. Therefore, at the time the oral hearing commenced, the appellants had identified two very broad grounds of review and had not provided any particulars of those grounds by way of amendment to the application or through written submissions.

10    The primary judge's reasons then record:

36.    The Court explained separately to the first applicant and then in the course of the hearing to the second applicant the nature of the hearing and both applicants confirmed that they understood the nature of the hearing as explained by the Court.

37.    From the bar table, the first applicant maintained that he had provided documents in support of his claims and took issue with the adverse findings by the Tribunal. The adverse findings by the Tribunal, as summarised above, took into account the inconsistencies and implausibilities in the first applicant’s evidence and in relation to the second applicant’s evidence and were open to the Tribunal for the reasons given by the Tribunal.

38.    The first applicant also identified having remained in Australia for almost 11 years, his wife now being pregnant, that they also had a child and that he was concerned about travel because of COVID-19. These matters, in substance, invite the Court to engage in merits review. This Court has no power to rehear the merits.

39.    The first applicant otherwise maintained that it would be dangerous for him to return to Nepal and wanted a further year with work rights so that he could remain in Australia. The submissions of the first applicant were, in substance, an invitation to the Court to engage in merits review.

40.    Nothing said by the first respondent identified any jurisdictional error.

41.    From the bar table, the second applicant also maintained that they had given truthful explanations to the Tribunal and disagreed with the adverse findings. For the reasons already given, as summarised above, the adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification and were open to the Tribunal.

42.    The second applicant also identified concern in relation to the child and that she was further pregnant and suggested that she might terminate the pregnancy if unsuccessful in these proceedings. The Court explained to the second applicant that the Court could not decide the matter on compassionate or discretionary grounds and that these proceedings were not a basis upon which the second applicant should be making decisions in relation to her unborn child. The second applicant’s submissions were, in substance, an invitation to this Court to engage in impermissible merits review.

43.    Nothing said by the first or second applicants from the bar table identified any arguable case of jurisdictional error.

11    The transcript of the hearing before the primary judge records that the hearing commenced at 5.34 pm and concluded at 6.10 pm on Monday, 25 May 2020. That is, the oral hearing of the application was conducted within about half an hour. The appellants represented themselves.

12    The transcript of the proceedings suggests the appellants were able to understand English to an extent, but required the assistance of a Nepalese interpreter at times during the course of the hearing to understand what the primary judge had said to them. At the outset of the hearing, there was the following exchange between the primary judge and the first appellant:

HIS HONOUR: Very well. Mr Applicant, your matter is listed today for a final hearing.

BKT17: Yes.

HIS HONOUR: That’s a final hearing to decide if the decision of the Administrative Appeals Tribunal dated 21 March 2017 is affected by relevant error. The relevant error, in summary, has to be the tribunal exceeding its statutory authority. What that means, in other words, is that the court is considering whether the tribunal’s decision or review is unlawful or unfair. The court will also in that regard take into account the grounds that are identified in your application. In your application, you asserted that the tribunal failed to properly consider your claims, but you haven’t identified any claim that wasn’t properly considered, and in the application as ground 2, you’ve said you weren’t given a chance to comment on “one aspect of my claims”, but you haven’t identified what that aspect is.

If I am satisfied the tribunal’s decision is unlawful or unfair, I will set aside the decision and send it back for further review. If I am not satisfied the tribunal’s decision is affected by relevant error, I will dismiss your application with costs. What I propose to do first is to have identified the evidence. Once I’ve had identified the evidence, I will hear submissions from you, Mr Applicant, in support of the two grounds in your application and why you say the tribunal’s decision is unlawful or unfair. After you’ve put submissions, I will call on the solicitor for the first respondent to put submissions, and then I will give you an opportunity to put submissions in reply ..... to you so you understand the nature of the hearing. Have you understood what I’ve said?

BKT17: Yes.

13    The primary judge then dealt with the admission of the material before the Court, namely, a court book and the first appellant's affidavit and then said:

HIS HONOUR: You should have been sent - - -

BKT17: Yes.

HIS HONOUR: - - - some submissions by the first respondent. Did you receive those submissions?

BKT17: Possibly. Yes.

HIS HONOUR: Those submissions, Mr Applicant – those submissions explain why the Minister submits the two grounds in your application don’t make out any relevant error. Those submissions also explain why the Minister submits the tribunal’s decision in relation to you and your wife was not unlawful or unfair. What do you want to say in support of the grounds in your application or why you believe the tribunal’s decision is unlawful or unfair?

14    The first appellant then proceeded to provide an explanation in which he dealt with, in substance, the merits of the application before the Tribunal and did not, by his answer, identify any aspect of the Tribunal's reasons by which he asserted a failure to properly consider all of his claims or a failure to give him a chance to comment on any aspect of those claims. After completing his submissions on that subject, the primary judge asked him, 'is there anything else you want to say, Mr Applicant, as to why you believe the tribunal's decision is a subject of error?'. The first appellant then went on to make a submission that, again, had nothing to do with the asserted grounds of review. The primary judge then turned to consider if the second appellant had any submissions that she wanted to make as to why she believed the decision was the subject of error. There followed this exchange between the primary judge and the second appellant:

HIS HONOUR: The court is considering whether the tribunal’s decision is the subject of relevant error.

MS ..........: Yes.

HIS HONOUR: And the relevant error by the tribunal, in summary - - -

MS ..........: Yes.

HIS HONOUR: - - - has to be an excess of authority, that is, the tribunal - - -

MS ..........: Yes.

HIS HONOUR: - - - exceeding its statutory powers. In summary, that means - - -

MS ..........: Yes.

HIS HONOUR: - - - the court is considering whether the tribunal’s decision is unlawful or unfair. Have you understood everything I have said so far?

MS ..........: Actually, I think that I’m not too bad understanding the English, but ..... court ..... vocabulary, which is a bit – I found quite difficult to understand. You know what I mean?

HIS HONOUR: Then pause, and I will get the interpreter to repeat what I’m saying. So just listen to the interpreter.

MS ..........: .....

HIS HONOUR: Ms Interpreter, would you now interpret what I say, please. Ms Applicant, the court is conducting a final hearing as to whether there’s any error in the tribunal’s decision. Ms Interpreter, could you – can you hear me, Ms Interpreter? Just pause, Ms Applicant. Ms Interpreter, can you hear the court?

THE INTERPRETER: Yes. I can hear you.

HIS HONOUR: Thank you. Could you interpreter what I say, please.

THE INTERPRETER: Yes.

HIS HONOUR: Just pause, Ms Applicant. Ms Interpreter, please interpret what I say from now on and interpret the rest of what is said in this hearing. Ms Applicant, your matter - - -

THE INTERPRETER: Okay.

HIS HONOUR: - - - is listed today for a final hearing. That’s a final hearing to decide if the decision of the Administrative Appeals Tribunal dated 21 March 2017 is affected by a relevant error. The relevant error has to be either an excess of statutory power by the tribunal or a material denial of procedural fairness. In summary, that means the court is considering whether the tribunal’s decision is unlawful or unfair. In that regard, the court will also take into account the two grounds that is in the joint application lodged by you and your husband. The first ground alleges there was a failure to consider all of the claims. No claim that was not considered has been identified. It’s also suggested the tribunal didn’t give you a chance to comment on one aspect of your claims. The application doesn’t identify what it was that you were unable to – that you weren’t given a chance to comment on.

If I am satisfied the tribunal’s decision is affected by relevant error, I will set aside the decision and send it back for further review. If I’m not satisfied the tribunal’s decision is affected by relevant error, I will dismiss the application of you and your husband, together with costs. The court has identified the evidence being before the court as the court book and your husband’s affidavit. The court has also had confirmed that you and your husband received the submissions of the first respondent. What I propose to do is let you have a chance to put submissions as well, Ms Applicant. Your husband has already put submissions - - -

MS ..........: Yes.

HIS HONOUR: - - - which you’ve heard.

MS ..........: Yes.

…

HIS HONOUR: What do you want to say, Ms Applicant, as to why you believe the tribunal’s - - -

MS ..........: Yes.

HIS HONOUR: - - - decision is the subject of error or in support of the grounds in your application?

MS ..........: I think I can explain in English now because those – is that all right?

HIS HONOUR: Yes, Ms Applicant.

MS ..........: Yes ..... regarding this matter, we have already been to tribunal, and I’ve tried to explain with all whatever has happened to me and my husband in the past, whatever the grounds we put our application through. So we have explained everything, and as far as I know, everyone knows. I think everyone has got all the stories since 2014 when we put our application in. So those things I’m sure you – everyone know all the ..... so many parties. I think all the parties know about our previous application and the stories which we had. So ..... through in the past. Everything has been put in. So we don’t know the decision. I don’t know.

So we just ..... can’t, you know. I didn’t ..... this is the error, you know, this is the error we can make. I ..... things are very ..... kind of thing. So ..... so we don’t know, you know, what mistake we have done, you know ..... I don’t think I can say that. So – because these are the bigger people things, so I don’t know. So we are the applicant. We just our application, whatever happened to us. So we’re just kind of waiting, and we have been just going to the different tribunals and, you know, like, RRT and then we went to the court ..... expensive to put the lawyer, too, so that’s 30 why we couldn’t hire the lawyer. So this .....

HIS HONOUR: Just pause. Just pause for a - - -

MS ..........: And I .....

HIS HONOUR: Just pause for a second.

MS ..........: Yes.

HIS HONOUR: Just pause. Yes. I follow you. You couldn’t hire a lawyer. What else do you want to say?

MS ..........: Yes. And ..... we have been living in this country since 2009. We have never been back to our country, me and my husband both. I think it’s more than 11 years. So in these 11 years time, I fell pregnant three times ..... baby three times. I think I’ve even ..... tribunal before in two thousand and ..... or something. So last year I had a baby ..... 2019. She has turned one year old. So – yes. And the – accidentally I fell pregnant again, which I came to know yesterday ..... to you .....

HIS HONOUR: Yes. Is there anything else you want to say as to why you believe the decision is the subject of error?

MS ..........: Yes. So all those things – those things, I think, we are unable to go back to our country. So that those were the things. So I don’t know how the court will decide our matter, you know, this time, but actually I don’t know that the decision will come positive or negative. I will be really, really grateful if I could give birth to this baby which I am pregnant with now to this country. Otherwise, I will have to think about terminating and risking my life again.

HIS HONOUR: Ms Applicant, can I just say to you this court has no power to decide the matter - - -

MS ..........: Yes.

HIS HONOUR: - - - on compassionate - - -

MS ..........: Yes.

HIS HONOUR: - - - or discretionary grounds.

MS ..........: Yes.

HIS HONOUR: I can’t decide the matter afresh. I can only consider - - -

MS ..........: Yes.

HIS HONOUR: - - - whether the tribunal - - -

MS ..........: Yes.

HIS HONOUR: - - - exceeded its powers.

MS ..........: Yes.

HIS HONOUR: It is also the case that whether you have had a child or whether you are pregnant again is completely irrelevant to the powers I have.

MS ..........: Yes.

HIS HONOUR: I understand - - -

MS ..........: Yes. Sure.

HIS HONOUR: - - - what you’ve said, and I understand - - -

MS ..........: Yes.

HIS HONOUR: - - - your position. But you should understand - - -

MS ..........: Yes.

HIS HONOUR: - - - this court has no power to decide the matter - - -

MS ..........: Yes.

HIS HONOUR: - - - on grounds that weren’t before the tribunal. It would not be - - -

MS ..........: Yes.

HIS HONOUR: - - - sensible for you to be - - -

MS ..........: Yes.

HIS HONOUR: - - - affecting the life of your unborn child because of some belief about what’s happening in these proceedings because these proceedings - - -

MS ..........: Yes.

HIS HONOUR: - - - are not ones in respect of which your currently born child or your unborn child can - - -

MS ..........: Yes. Yes.

HIS HONOUR: - - - assist the court deciding whether there’s relevant error. Is there anything else you want to say?

MS ..........: I think these were – this was the main thing, you know ..... because of this whole COVID-19 also. This was the main thing. Because of this COVID, I don’t know ..... everything is happening, you know. Getting ..... we were not given time to stay in this country ..... here ..... or if I ..... negative, if I have to go back, there is ..... I don’t know who do we talk to. Maybe immigration. Sorry. I don’t understand this court and immigration matter, so I don’t know. That’s why I told you my story. Sorry about that.

HIS HONOUR: No. That’s fine. Thank you very much, Mrs - - -

15    After the respondent's counsel had made submissions, in effect relying on the written submissions, both the first appellant and second appellant made further submissions, again, unconnected to any of the grounds of review and addressing, in effect, the merits of the application before the Tribunal.

16    The summary of the proceedings and portions of the transcript referred to above set out in more detail the relatively brief summary of the proceedings and submissions recorded at paras [36] – [43] of the primary judge’s reasons. As is evident from the transcript of the proceedings, the appellants were, in substance, invited to provide particulars of the grounds of review and make submissions directed to those grounds, but failed to do so and, instead, made submissions directed to the merits of the decisions of the delegate and Tribunal.

17    The primary judge dismissed the applications for judicial review for want of particularisation. His Honour said:

Ground 1

45.    The first ground, in the absence of particularisation, is incapable of making out any jurisdictional error. There was no integer of the applicants’ claims that was not the subject of consideration. On the face of the material before the Court, the applicants have had a real and meaningful hearing before the Tribunal. Further, on the face of the Tribunal’s reasons, the Tribunal had a real intellectual engagement with the applicants’ claims and evidence.

46.    No jurisdictional error is made out by ground 1.

Ground 2

47.    In relation to ground 2, again, in the absence of particularisation, this ground is incapable of making out any jurisdictional error. On the face of the material before the Court, the Tribunal raised the issues of concern with the respective applicants in the course of the hearing. There was no aspect of the applicants’ claims that was identified that had not been the subject of a chance to comment. Further, the Tribunal’s reasons are inconsistent with the assertion that the applicants did not have a real and meaningful hearing.

48.    No jurisdictional error is made out by ground 2.

49.    As the application fails to make out any jurisdictional error, the application is dismissed.

Ground of appeal

18    The appellants contend that the primary judge failed to accord them procedural fairness in three respects:

(a)    A failure to explain the jurisdiction or process of the court to the first appellant.

(b)    A failure to explain to the second appellant, in terms which she could understand, what was the court’s jurisdiction.

(c)    A failure to give the appellants a proper opportunity to explain the nature of the errors they allege were made by the Tribunal.

19    The issues raised in the grounds of appeal concern the nature of a court’s duty to ensure a fair hearing in circumstances in which a party to the proceedings is a litigant-in-person. Further, the extent to which the primary judge discharged that duty in the circumstances of this case. Additionally, if the primary judge failed to accord the appellants procedural fairness, was that failing of such a nature as would warrant remitting the matter to the primary court.

20    The appellants have not requested this Court to consider for itself whether the Tribunal made a jurisdictional error and, if so satisfied, make orders of the kind requested in the application for judicial review. Rather, the appellants request, in effect, that this Court order a rehearing of the application in the primary court.

Applicable principles

21    It is axiomatic that, in the exercise of judicial power, a judge is obliged to accord procedural fairness to litigants appearing before him or her and that the requirements of procedural fairness include the provision of a reasonable opportunity for litigants to present evidence and to make submissions: Boensch v Sommerville Legal [2021] FCAFC 79; (2021) 286 FCR 293 at [85] (and the authorities there cited). Courts have an overriding duty to ensure that a hearing is fair: Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at 325, 357, 362-363. This entails ensuring that the hearing is conducted fairly and in accordance with law: MacPherson v R [1981] HCA 46; (1981) 147 CLR 512 at 523, 534, 546-547. In general, a person who has not received a fair hearing is entitled to have the judgment or order resulting from that hearing set aside on appeal and to have the matter remitted to the primary court for rehearing. However, that general principle is subject to the qualification that an appellate court will not remit the matter for a rehearing if it would be futile to do so because a rehearing would inevitably result in the same outcome: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145.

22    Where, as here, at least one party to the proceedings is a litigant-in-person additional considerations apply to the Court’s duty to ensure a fair hearing. In Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479 the Full Court, after observing that statements of general principle such as those set out in para [21] do not offer great assistance in the particular circumstances of a hearing, said:

51    On the other hand, the observations of Mason J (as his Honour then was) in MacPherson at 534 that the general duty to ensure that litigants do not suffer any disadvantage from exercising their right to be self-represented, includes the obligation to ensure that they do not remain in ignorance of a fundamental principle which, if invoked, may prove advantageous to them, do offer assistance at a more granular level. The disadvantages to which Mason J referred are usually identified as a lack of knowledge (both of the law and the processes of the court) and a lack of objectivity: Tomasevic v Travaglini (2007) 17 VR 100 at [140] (Bell J).

52    As acknowledged by the High Court in Neil v Nott (1994) 68 ALJR 509 at 510; 121 ALR 148 at 150, “[a] frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”. In addition, litigants-in-person commonly fail to lodge documents in the correct form, observe court formalities and procedures, understand the significance of court processes, put the relevant evidence or law before the Court; and understand the role of the Court in adjudicating the matter.

53    However, whilst disadvantages exist and the Court is obliged to act to ameliorate them by giving assistance to the unrepresented litigant, its role is constrained by its concurrent duty to remain an impartial adjudicator: see, eg, Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19 at [10]. Indeed, the Court must strike a fine balance between providing assistance to a litigant-in-person, and ensuring a fair trial for all parties: Hamod v New South Wales [2011] NSWCA 375 (Hamod) at [315]; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [29]; SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 (SZRUR) at [37] per Justice Robertson (with whom Allsop CJ and Mortimer J agreed); AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 (AMF15) at [39] per Flick, Griffiths and Perry JJ.

54    The assistance provided to a litigant-in-person must therefore be limited to that which is necessary to diminish the disadvantage which he or she will ordinarily suffer, and the Court should be wary to avoid placing a litigant-in-person in a position of advantage or privilege over a represented opponent. As acknowledged by Samuels JA in Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, No 146 of 1986, 16 June 1986) (Rajski) at 27, and cited with approval by the High Court in Nobarani v Mariconte (2018) 265 CLR 236 (Nobarani) at [47]:

[T]he absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

55    In practical terms, the Court may find it appropriate to provide the following kinds of assistance to a litigant-in-person:

(a)    Ensuring the litigant has sufficient information about the practice and procedure of the Court to make effective choices in the conduct of the matter: Hamod at [311]. For example, failing to explain the difference between formal sworn testimony and statements made from the bar table, and the significance of failing to file an affidavit, to enable a litigant-in-person to choose whether or not to give oral evidence, may amount to a denial of procedural fairness: SZRUR at [39]. Additionally, failing to explain the risks in not leading evidence where adverse inferences might be drawn may also constitute a denial of procedural fairness: Downes v Maxwell Richard Rhys & Company Pty Ltd (in liq) (2014) 46 VR 283.

(b)    Ensuring the litigant is informed of procedures which, if invoked, may prove to be advantageous: MacPherson at 534. For example, failing to inform a litigant-in-person of their ability to apply for an adjournment may amount to a denial of procedural fairness: AMF15 at [47].

(c)    Ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments: Rajski.

56    The duty of the Court does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf: Hamod at [312]; Bhagwanani v Martin [1999] SASC 406; (1999) 204 LSJS 449 at [23]; Clark v New South Wales (No 2) [2006] NSWSC 914 at [13]. Nor does the duty of the Court require it to view a litigant-in-person’s case with a favourable eye. As stated by the High Court in Northern Territory v Sangare (2019) 265 CLR 164 at [27], albeit in the context of a determination on costs, “unmeritorious litigation is no less unmeritorious because it is pursued by a person who is … a litigant-in-person”.

57    It seems to be well accepted that the extent of the Court’s obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon “the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case”: Abram v Bank of New Zealand [1996] ATPR 41-507 at 42,347.

23    In SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 (at [37]), a differently constituted Full Court cited with approval passages from Hamod v New South Wales [2011] NSWCA 375 that included the following observations:

[311]    Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.

[313]    The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:

But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant.

[314]    Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.

[315]    There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:

A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSWCA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.

[316]    The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.

24    When speaking of the consequences of a failure to adequately particularise a ground of judicial review by a litigant-in-person, in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, Colvin J made the following observations with which I agree:

8    The consequences of a failure to particularise a ground will depend upon the circumstances. Where a legally represented party has been afforded an opportunity to remedy the failure to comply then it is to be expected that the ground would be dismissed for failure to comply with the Rules and without any consideration as to whether there may be underlying merit.

9    However, it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister's discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.

25    The proposition to be drawn from the above authorities is that the duty of the court to ensure a fair hearing extends to providing sufficient guidance to a litigant-in-person as will afford that litigant an opportunity to understand the nature of judicial review and to express the grounds of review with sufficient particularity for the Court to determine the true nature of the complaint about the decision-maker’s exercise (or failure to exercise) jurisdiction or power. That may require the Court to explain and ensure the litigant understands what that litigant is required to do in order to identify and particularise grounds for judicial review. If the litigant understands or should, in light of the explanation given, understand what is required, but given reasonable opportunity, is then not able to identify or articulate with any particularity a viable ground of review, then the litigant may well stand in the same position as a represented litigant who is so unable to identify and particularise viable grounds of review.

26    As to the issue of futility, it is analogous to the concept of materiality and practical injustice that applies to determine if an administrative decision-maker’s failure to accord a person procedural fairness results in the decision-maker exceeding the limits or failing to exercise power or jurisdiction according to law (jurisdictional error): Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [30]-[39]. In that context, an applicant for judicial review carries the burden of proving on the balance of probabilities that there was ‘a realistic possibility that a different decision could have been made’ had the decision-maker accorded the applicant procedural fairness. That burden is discharged by establishing that the decision could have been different ‘as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined’. The standard of ‘reasonable conjecture’ is undemanding: Nathanson at [30]-[33]. ‘[I]n many, if not most, cases where an applicant has been deprived of a chance to make submissions on a topic of relevance, ‘reasonable conjecture’ from established facts about the decision-making process will readily show a reasonable possibility that the outcome would have been different.’: Nathanson at [35].

27    Of the notion of ‘practical injustice’, in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326, Gageler and Gordon JJ said (footnotes omitted):

[60]    Where … the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

In Nathanson, Gageler J (at [47]-[50]) and Gordon J (at [76]-[81]) delivered separate reasons, but both referred to their joint reasons in WZARH and emphasised 'practical injustice' is readily established where the nature of the error involves a failure to accord a party an opportunity to present evidence or make a submission on the merits of an evaluative decision.

28    Returning to the Court’s duty to ensure a fair hearing, while authorities concerning administrative decision-makers are useful analogues, it is important to bear in mind the distinction between administrative decision-makers and courts exercising judicial power. As Gaudron J said in Dietrich (at 363) ‘[t]he fundamental requirement that a trial be fair is entrenched in the Commonwealth Constitution by Ch. III’s implicit requirement that judicial power be exercised in accordance with the judicial process’. Her Honour went on to observe (at 363-364) (footnotes omitted):

The requirement of fairness is not only independent, it is intrinsic and inherent. According to our legal theory and subject to statutory provisions or other considerations bearing on the powers of an inferior court or a court of limited jurisdiction, the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case. Thus, every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial. Of course, particular powers serving the same end may be conferred by statute or confirmed by rules of court.

The notion of a fair trial and the inherent powers which exist to serve that end do not permit of "idiosyncratic notions of what is fair and just" any more than do other general concepts which carry broad powers or remedies in their train. But what is fair very often depends on the circumstances of the particular case. Moreover, notions of fairness are inevitably bound up with prevailing social values. It is because of these matters that the inherent powers of a court to prevent injustice are not confined within closed categories. And it is because of those same matters that, save where clear categories have emerged, the inquiry as to what is fair must be particular and individual. And, just as what might be fair in one case might be unfair in another, so too what is considered fair at one time may, quite properly, be adjudged unfair at another.

29    It follows that where a failure of a court to accord a litigant procedural fairness is demonstrated on appeal, an appellate court should order a rehearing unless satisfied that a new hearing would inevitably result in the same judgment or order. Inevitability will not be demonstrated unless there is no realistic prospect that a different decision could have been made on the material before the primary court.

Was there a failure to accord the appellants procedural fairness?

30    In a busy court dealing with numerous applications for judicial review of migration decisions involving similar issues and litigants-in-person it is understandable that judicial officers adopt case management procedures designed to achieve efficient and timely disposition of large numbers of similar matters. However, efficiency is intended to serve the administration of justice and must not come at the cost of ensuring a fair hearing. It can be difficult to strike the balance between efficiency and fairness and minds may differ on precisely where to strike that balance, but, in this case, in my view, the primary judge failed to strike the correct balance and that resulted in an unfair hearing.

31    As noted earlier in these reasons, the primary judge's reasons record that a registrar of the Circuit Court made orders providing the appellants with an opportunity to file an amended application, affidavit evidence and submissions, but no such documents were filed. The reasons do not indicate to what extent, if at all, these orders were made after an explanation of the process had been provided to the appellants or if the orders were made administratively without explanation. However, I make the observation, that orders that make provision for amending applications and filing submissions and affidavits where a party is a litigant-in-person and for whom English is not his or her first language may not remove the disadvantage of self-representation if no explanation of the process is provided to that litigant in his or her own language before the time for compliance with such orders expires or an oral hearing takes place.

32    The primary judge’s reasons and the transcript record that the primary judge explained the nature of judicial review to the appellants. In the case of the first appellant, while the transcript records that he said he understood the explanation, the oral submissions he then made suggested that he did not understand the substance of the explanation. In the case of the second appellant, she said she was not too bad at understanding English, but found the 'court vocabulary … quite difficult to understand'. The English version of ‘court vocabulary’ was then interpreted into Nepalese. The English vocabulary the primary judge used was legalistic and it was that explanation that was interpreted. The second appellant then provided submissions that, again, suggested that she did not understand the substance of the explanation of the process of judicial review. When the primary judge interjected to explain that he could not decide the matter on compassionate grounds, she said ‘I don’t understand this court and immigration matter’.

33    The failure of the appellants to avail themselves of the opportunity to amend and file written submissions and affidavits taken together with the oral submissions they made were powerful indications that neither understood the nature of judicial review or what they were required to do to identify and particularise grounds of review in a form that would permit the primary judge to understand the true nature of the complaint that they made about the process of the Tribunal’s review. In my view, in the circumstances it was incumbent upon the primary judge to attempt further explanation of the nature of judicial review and to make sufficient enquiries of the appellants to be satisfied that they understood what they were required to do in order to identify and particularise grounds of review and, further, to ensure that they were then given reasonable opportunity to remedy the deficiency in their grounds of review. That may have, and probably would have, necessitated an adjournment of the oral hearing for a period of time.

34    Further, the explanation given and questions asked did not elicit a description from the appellant even in simple terms of the manner in which they said that the Tribunal had failed to consider their claims or had not allowed them to comment on any aspect of their claims. However, the appellants were not pressed to provide a further or better explanation of the grounds and at no point during the oral hearing was it explained to the appellants that their applications may be dismissed if they failed to do so.

35    In my view, the primary judge’s explanations and questions did not diminish the manifest disadvantage from which the appellants as litigants-in-person with limited understanding of the English language suffered. While the primary judge made an effort to explain to the appellants the process and the deficiencies in the appellants’ application for judicial review, his Honour did not, in my view, provide the assistance necessary to ensure that the appellants had not, because of a lack of legal skill, failed to put forward arguments in support of their application for judicial review. In short, in my view, the appellants were not given a reasonable opportunity to remedy the failure in their application for judicial review to particularise the grounds of review and, thereby, place the primary judge in a position in which he could properly consider the merits of those grounds. The consequence of the appellants' failure to particularise their grounds for review was that the primary judge dismissed their applications largely for want of particularity.

36    It follows that the failure to accord the appellants procedural fairness pleaded in ground 1 of the substituted notice of appeal has been made out. That leaves the question of whether the opportunity that was denied to the appellants could have made any difference to the outcome.

Is it futile to remit the matter for rehearing?

37    As noted earlier in these reasons, the appellants' application for judicial review cited two grounds and those grounds were not particularised. In the appeal, the appellants sought to provide particulars of those grounds. These related to the Tribunal's reasons for rejecting the appellants' evidence about the first appellant's alleged membership of the NSU. However, the appellants have not sought to demonstrate in the appeal that they would have succeeded before the primary judge if they had been afforded a reasonable opportunity to particularise the grounds of review. Rather, the appellants contend that they could have succeeded on the grounds if particularised. The Minister contended that if the particulars of the grounds had been provided the outcome would have been the same because the grounds, as particularised, had no prospects of success.

38    It follows that no party invited the appellate court to embark on a rehearing of the grounds of review, as particularised in the appeal, and, thereby, determine the substantive merits of the application for judicial review that was before the primary judge. The appellants’ notice of appeal requested that the judgment be set aside and the matter remitted. Therefore, I approach the question of futility from the standpoint of whether it has been demonstrated in the appeal that had the appellants been accorded procedural fairness it was inevitable that the primary judge would have made an order dismissing the appellants’ application for judicial review.

The Tribunal’s decision

39    The Tribunal described the first appellant's evidence and the Tribunal member's view of that evidence in the reasons for decision as follows:

55    Applicant One told the Tribunal the following about his work. He started working as a marketing supervisor in mid-2003 after he finished college. He travelled to different places in the country. It was a very tiring job and not well paid. He travelled up to 18 hours in a bus selling solar panels. He left that job in the middle of 2008 because the pay was not good and he had to travel a lot. He felt he needed to find a new job.

56    When the Tribunal asked when he began NSU work, Applicant One told the Tribunal that he was interested from school and before he formally became a member in 2006, he used to go to different places and to schools and talk about student rights. Later, he said that he was an active member from primary school. In his visa application, he claimed that he used to participate in the various programs run by NSU when he was at primary school and became a member when he started college,

57    When asked why he could not return to Nepal, Applicant One said that he used to raise his voice and talk about people's right. He used to travel to different places like Rupandehi.

58    When the Tribunal asked about becoming a member of NSU in 2006 when he was working and going to remote places, Applicant One said the following. At that time he was studying part-time. That is why he got his membership of NSU. He had to work because of his family's economic circumstances. When the Tribunal commented that he had said that he finished is studies in 2003, Applicant One said that he finished high school then and then undertook a Bachelor of Commerce. He did an intermediate qualification in commerce and then joined the bachelor course which he has not completed. When the Tribunal commented that he had not mentioned that, Applicant One said that it was not necessary on a dependant visa but he could provide it.

40    The Tribunal also did not accept the second appellant's evidence as credible and in respect of her evidence as to how she met the first appellant, the Tribunal made the following observations:

107    She met him when he participated in an NSU program at her school. She was 17 or 18. They first met in 2004 or 2005. So many different parties came to her school trying to convince students to join. The talks would last a couple of hours, sometimes from 1 until 4 or 5. They gave donations to schools. Political leaders would come who were related to the Congress Party.

108    After school, Applicant One used to contact her on her home phone number through his friend, Rajan Karki. It was related to her studies and so her family did not have a problem. Her parents would leave her alone to speak to that person. She was doing year 11 or 12 science and needed help. There were 30 boys in her class and five girls. She used to meet Applicant One in two areas in Kathmandu. They would finish classes early and go. She had finished year 12 when he got into trouble with JTMM. She finished in March/April 2006.

109    The Tribunal finds that her finishing school in March/April 2006 is inconsistent with Applicant One's NSU membership card dated 10 April 2006. They could not have met through his activities in her school if she had finished before or just after the date he joined and began undertaking those activities. If she had met Applicant One in 2004 or 2005 as she also said at the hearing, that is not consistent with meeting him while he was engaged in an NSU program in her school, based on his NSU membership card. In making those findings, the Tribunal has taken into account the various other inconsistent and unsupported versions of Applicant One's evidence about his activities but gives them no weight.

110    When the Tribunal queried how Applicant One met her when he was working, according to the employer's reference, Applicant Two said that he had been studying part-time. The Tribunal notes that the break in the hearing had occurred before Applicant Two gave her evidence which provided an opportunity for the applicants to speak to each other. The explanation that Applicant One was studying part-time in 2006, is inconsistent with the documents the applicants provided about Applicant One's education and his employer reference. There is no document supporting that claim. The Tribunal finds that the part-time study explanation was given to overcome an obvious difficulty in the evidence.

41    It is evident from the Tribunal's reasons that it had rejected the evidence of the first appellant that he had been a part-time student in 2006 due to various inconsistencies in his evidence. When the second appellant was questioned about various inconsistencies in her evidence, she also gave evidence to the effect that the first appellant had been studying part-time in 2006. In para [110], the Tribunal's reason for rejecting that evidence is partly due to inconsistency with documents and the absence of documents supporting that claim. It is also, in part, based on an imputation, in effect, that the first appellant and second appellant had colluded in a break between the first and second appellants providing evidence to the Tribunal.

Particulars of the Tribunal’s asserted error

42    The appellants made two complaints about that aspect of the Tribunal's reasoning. First, the period of the break between the first appellant completing his evidence and the second appellant commencing her evidence was very short (the appellants submitted it was only about 23 seconds). Such a short period of time provided little, if any, opportunity for the first appellant and second appellant to collude about the evidence. Second, the Tribunal had not provided either the first appellant or the second appellant with an opportunity to comment on the suggestion that there had been collusion between them.

Prospects of success

43    As to the second complaint, given the apparent importance of that corroborating evidence as a means of explaining the apparent inconsistencies in each of the first appellant and second appellant's account of the events that took place prior to them leaving Nepal, contrary to the Minister’s submissions, I am not satisfied that a court could not reach the conclusion that the Tribunal had failed to perform the statutory review required in s 414 of the Migration Act for failing to provide the appellants notice of 'adverse material from other sources' (the imputation of collusion) and failing to provide the appellants with an opportunity to rebut or qualify by further information and comment by way of submission upon that adverse material: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25] - [44]. I am also not satisfied, contrary to the Minister’s submissions, that a supposition or finding of collusion between the first appellant and the second appellant could not be characterised as 'information' within the meaning of s 424A(1)(a). That is, it is arguable that it does not fall within the Tribunal's subjective appraisals, thought processes or determinations or identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps of a kind referred to in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549 at [24]. Given these conclusions, it is not necessary to consider the first complaint (limited time for collusion) for which the evidence in support of the particular or submission, in the materials before the primary judge, is not clear.

44    It follows that I am not satisfied that the applicable question of law (jurisdictional error on the part of the Tribunal) must clearly be answered unfavourably to the appellants. Further, given that the primary judge dismissed the appellants’ application for judicial review for want of particularity, I am not otherwise satisfied if the appellants had been accorded a reasonable opportunity to provide particulars, the outcome before the primary judge would have inevitably been dismissal of the application.

Conclusion

45    The appeal will be allowed and the matter will be remitted to the Circuit Court for rehearing and determination according to law. I will hear the parties on the question of costs of the appeal.

Associate:

Dated:    28 April 2023