BDQ17 and Minister For Immigration, Citizenship, Migrant Services And Multiculrural Affairs

[2020] HCATrans 146

[2020] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P21 of 2020

B e t w e e n -

BDQ17

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULRURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

KIEFEL CJ
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO CONNECTION TO MELBOURNE AND PERTH

ON FRIDAY, 11 SEPTEMBER 2020, AT 2.38 PM

Copyright in the High Court of Australia

MR C.D. JACKSON:   I appear for the applicant, your Honours.  (instructed by Oxford Law Group)

MR G.R. KENNETT, SC:   May it please the Court, I appear with my learned friend, MR P.R. MACLIVER, for the respondent.  (instructed by Sparke Helmore Lawyers)

KIEFEL CJ:   Thank you.  Mr Jackson, I think that an extension of time is necessary, but the Minister does not oppose the extension being granted.

MR JACKSON:   Yes, your Honour.

KIEFEL CJ:   Yes, you have that extension.

MR JACKSON:   Thank you, your Honour.  Could I take your Honours straight to page 65 of the application book and to the four facts which I say lie at the heart of this application.  First of all, at paragraph 29 of this application, on page 65 – it is an ex tempore oral judgment delivered to an unrepresented litigant and in paragraph 29 understandably he has absolutely no recollection of the oral judgment and he could not even remember whether it had been interpreted to him.

Then the second fact at paragraph 30 that the written judgment was not published or provided to the parties in any form until after the filing of a notice of appeal – in fact it was some months after that and then in paragraph 31, possibly the critical finding by her Honour which was published solely in response to the appeal and the respondent accepts that in the respondent’s written submissions.

Finally, and one has to go back to paragraph 19 for this, on page 53, there is halfway through the second half there that the published judgment contained both additional facts and additional legal argument that was not in the ex tempore decision.

So, really, they are the primary facts on which the application turns.  I wanted to draw attention to her Honour’s statement in paragraph 34, which is on page 67:

This is no second‑class jurisdiction –

These are important issues, final hearings and these are parties, applicants with limited resources and potentially very serious consequences, when these decisions are made.  The fundamental proposition, your Honours, is that a process must both be fair, but it must also appear to be fair. 

The Federal Circuit Court is a Chapter III court, a court of record, and the giving of reasons is a necessary incident of the judicial process.  In my written submissions I also referred to the Court of Appeal’s observations in Wiki, which is that reasons should be sufficient to allow a losing party to understand why they lost.

So, with respect to the – no issue is taken with the suggestion that it may be appropriate to give ex tempore decisions.  Justice Emmett in the Federal Court regularly gave ex tempore decisions in matters in which I appeared and I could never complain about them because they were fully understood and they indicated that his Honour fully understood the argument and they were provided within a few days to the parties.

So it is not a question of whether reasons can be given orally.  But it is a question of whether, in the particular circumstances of this case, and your Honours can infer in a number of other cases, whether the combination of factors gives rise to at least an apprehension of bias or sufficient concern about the process.

KIEFEL CJ:   Mr Jackson, in relation to the procedural fairness aspect of the ex tempore reasons being given there is no doubt that oral reasons were given.  But Justice Mortimer was not able to find that they were not translated at the time, the evidence was not such that she was able to make that conclusion.  Is that not a difficulty for you?

MR JACKSON:   Well, that is certainly a point of distinction with the case where the respondent conceded error and probably the critical point of distinction but, in my submission, from a practical point of view the difference between – with an unrepresented litigant, for whom English is a second language, the difference between a very brief oral judgment that is given at the time and one where the interpreter, however inadequately, attempts to interpret a legal judgment, that that is not in fact, in my submission, the defining distinction or even a particularly pertinent distinction in the context of the nature of the case.

The problem is not so much the fact that – I mean, in this case nobody knows because a transcript of the full hearing was not available.  Nobody knows whether it was interpreted to the applicant or not.  But, in my submission, it does not cure the mischief or relevantly distinguish the two sets of circumstances or, at least, does not significantly distinguish it.

I mean, it is telling that the applicant was so perplexed by the proceedings that he did not know whether it was being interpreted to him or not.  But that is all I can really say to assist your Honour on that point.  I am happy to address any other questions that your Honour might have or any other aspects that you might like to raise with me.

KIEFEL CJ:   No, that is fine.  That is all I wanted to ask from my point of view.  Thank you.

MR JACKSON:   Yes.  I think that is all I need to say in‑chief.

KIEFEL CJ:   The Court will then adjourn to consider the course it will take.

AT 2.48 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.51 PM:

KIEFEL CJ:   Mr Kennett, we need not trouble you. 

In our view, there are insufficient prospects of success in this matter to warrant the grant of special leave.  Special leave is refused.

MR JACKSON:   May it please the Court.

KIEFEL CJ:   Yes, thank you. 

The Court will adjourn to Tuesday, 6 October at 10.00 am.

AT 2.52 PM THE MATTER WAS CONCLUDED