Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 & Anor

[2020] HCATrans 210

[2020] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P23 of 2020

B e t w e e n -

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Appellant

and

AAM17

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

KIEFEL CJ
KEANE J
GORDON J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 DECEMBER 2020, AT 10.00 AM

Copyright in the High Court of Australia

KIEFEL CJ:   Mr Kennett, SC appears with Ms Taggart for the Minister, and Ms Cahill, SC appears with Mr Blades for the respondent.

MR G.R. KENNETT, SC appears with MS C.I. TAGGART, for the appellant.  (instructed by Australian Government Solicitor)

MS P.E. CAHILL, SC appears with MR D.V. BLADES, for the first respondent.  (instructed by Rothstein Lawyers)

KIEFEL CJ:   Yes, Mr Kennett.

MR KENNETT:   Yes, your Honour, the subject matter of this appeal, as your Honours will have seen, was an application for judicial review of a decision of the Administrative Appeals Tribunal affirming the refusal of a visa.  The reasons of the Tribunal, which I do not need your Honours to go to for the moment, are at page 3 of the core appeal book, and the application for review came before the Federal Circuit Court in its jurisdiction under section 476 of the Migration Act. So, as your Honours know, the jurisdiction is equivalent to that of this Court under section 75(v) of the Constitution.  The grounds of the original application, which again I do not need your Honours to go to, can be seen at page 24 of the book, and the Circuit Court dealt with those grounds in dismissing the application.  Its reasoning, relevantly, is at pages 35 to 41.

I mention these things in order to emphasise that this was a plain vanilla judicial review case.  The Circuit Court had before it the Tribunal’s decision and a bundle of documents but there was one affidavit which was referred to by the primary judge at page 41, paragraphs 42 to 43, which served the purpose of drawing the court’s attention to a certificate that had been given to the Tribunal under section 438 of the Act.  There was no cross‑examination, no oral evidence in the matter.

GORDON J:   Mr Kennett, how big was that exhibit, do you know?  Is that in the materials?

MR KENNETT:   It is not in the materials, your Honour.  I can try to find out.

GORDON J:   No, it is fine, thank you.

MR KENNETT:   I mention these matters in order to make clear that the Federal Court on the appeal had the same material and the same capacity to make findings about it as did the Federal Circuit Court and the same capacity as the Federal Circuit Court had to decide the issue in the proceeding, namely, whether the Tribunal had fallen into jurisdictional error. 

As we have set out in the written submissions, the Federal Court considered the reasons of the Tribunal as well as those of the Circuit Court and concluded that – this is at paragraph 43 of Justice Mortimer’s reasons at page 62 - noted that subject to two points which were considered later her Honour said that there was no:

possible error deserving of close consideration by this Court on appeal -

which we would submit is a fairly clear ruling out of, and confident ruling out of jurisdictional error.  What her Honour did in the next two paragraphs was to consider and reject the arguments that had been advanced by the first respondent as to why the Tribunal was in error and her Honour then turned to the two points that she had foreshadowed, and in paragraphs 47 to 48 concluded in relation to each of them that there was no error vitiating the Tribunal’s decision, and no error in what her Honour termed the “approach” of the Federal Circuit Court.  Yet, as your Honours know, the Federal Court set aside the Federal Circuit Court’s decision. 

I should note two other parts of the Federal Court’s reasons in connection with this before I move on to the substance of what we say about it.  Firstly, and this is something our learned friends point out, paragraph 9 of the reasons refers to there being “no obvious jurisdictional error”.  That is in a paragraph in which her Honour explains that because the present respondent was unrepresented she had gone beyond the express grounds of appeal.  Then we should also note that at paragraph 49 on page 64 of the appeal book her Honour indicates that her assessment of the substance of the matter has been based only on the Circuit Court’s:

reasons published more than a month after the notice of appeal was filed, not on its contemporaneous oral reasons. 

That is, of course, correct, but we would emphasise that, as I have said, the Federal Court could see for itself from the material whether there was any relevant error in the Tribunal decision.  The court had considered and dealt with the submissions actually put to it by the respondent and, in the course of doing those things, her Honour had not found it necessary at all to analyse such reasoning as was expressed in the Circuit Court’s written reasons.

Now, there is no contention in this Court that there was anything legally wrong with the Tribunal’s decision or with, therefore, the substantive result reached by the Circuit Court.  The error said by the Circuit Court, said by her Honour below, to justify setting aside its judgment, was a denial, identified as a denial of procedural fairness, a denial which was said to arise because the Circuit Court did not provide in a timely way its reasons in a form that was intelligible to the first respondent.

That arises from facts which her Honour sets out in paragraph 20 on page 55, and in paragraph 24 on page 56, which are not controversial.  In essence, the Circuit Court, after a short hearing, delivered its judgment and gave reasons orally – reasons which were not interpreted for the benefit of the respondent who was otherwise relying on – or who was relying on an interpreter.

The respondent was not sent the transcript of those oral reasons, and we would add that there is no suggestion that he ever asked for it.  The respondent filed a notice of appeal without having the benefit of any reasons from the Circuit Court, and written reasons were published after the appeal had been filed.  We would add to that that no application was made to amend the grounds of appeal in light of the reasons, although clearly it could have been.

Now, I should say that we do not at all suggest that what occurred in relation to the Federal Circuit Court’s reasons was in any way desirable.  What we do say, though, is that whatever else one might say about it, it did not constitute a denial of procedural fairness by the Circuit Court.  This is the contention that we make in the grounds numbered 2.1 and 2.2 in the notice of appeal.  We say that the provision of reasons, let alone provision within a particular time or in a particular manner, is not an aspect of procedural fairness as that doctrine is normally understood.

We refer to Osmond’s Case which, of course, says that in relation to administrative decision‑makers, but we say that the principles of procedural fairness in relation to a court arise from the same underlying concerns and have the same extent, and those principles are concerned, of course, with the process that leads to the making of a decision, not with things that follow the making of the decision, including how the reasons for it are communicated.  Now, what is ‑ ‑ ‑

EDELMAN J:   Mr Kennett, at least with an administrative decision‑maker ultimately the question is one of construction of the statute, is it not?

MR KENNETT:   As to whether reasons are required?

EDELMAN J:   And as to the effect of a failure to give reasons or a failure to give reasons within a reasonable time, the question will be whether the statute has an express or an implied requirement for reasons or for reasons within a reasonable time.

MR KENNETT:   Yes, that is so.  And in relation to the court ‑ ‑ ‑

EDELMAN J:   Is there any reason why that principle would be any different in relation to a court, albeit that sources of authority for a court are not confined to a single statute?

MR KENNETT:   The difference in relation to a court is that the provision of reasons has been identified as an attribute of the judicial function per se so that it does not need, of course, a statute to tell the court that it is required to give reasons, and we know that inadequate reasons or no reasons can be a ground of appeal.  But that, we say, is a distinct piece of doctrine from the principles of procedural fairness which, as we submit, apply to a judge for the same reasons and in doctrinally the same way as they do to an administrator as considered in Osmond. 

KIEFEL CJ:   In relation to a court, as you have pointed out, the reasons are particularly relevant to any question of an appeal, which of course are controlled mostly by the rules of court – the rules of the court ‑ and if there is any problem arising out of a deficiency or a lack of reasons, the rules relating to extensions of time and amendment in relation to an appeal address those questions largely, do they not?

MR KENNETT:   They do, and of course if the appellant is put in the position of needing to file an appeal of time running out with no reasons having been given, he or she would obviously be in a very strong position to obtain an extension of time or to be allowed to amend the appeal grounds if that is appropriate after reasons have arrived.  It is hard to imagine how such an application, at least if made in a timely way, could sensibly be opposed.

As to the fundamental obligation of a court to give reasons, we have given your Honours in the written submissions a reference to what was said in Wainohu at paragraphs 54 to 58 by your Honour the Chief Justice and Justice French, and those reasons relate to openness and public scrutiny of what the courts do and hence reasons normally need to be given and given in public, even if there is no right of appeal.

We have also given a reference to what Justice Gageler said in Condon at paragraph 191 which referred back to what had happened in K‑Generation and drew a distinction between the giving of reasons which had been discussed in K‑Generation and procedural fairness which was in issue in Condon itself. 

Here, of course, the Circuit Court did give reasons and there has never been a complaint that the reasons were inadequate and that was not the way that her Honour in the Federal Court identified the problem.  Her Honour identified it as procedural fairness which, as I have submitted, is a doctrine that concerns itself with how decisions are arrived at, not with things that happen after they are arrived at. 

Coming back to procedural fairness, an important aspect and really to illustrate the point, an important aspect of that doctrine as it is currently understood is what is often referred to as practical unfairness and that is unfairness in the sense that the complainant was deprived of the possibility of a successful outcome as Justices Gageler and Gordon put it in WZARH 256 CLR 326 at paragraph 60, a successful outcome ‑ ‑ ‑

EDELMAN J:   Mr Kennett, do you accept that whether or not one would characterise it as procedural fairness, it would be an error of law if a decision‑maker were to give two different sets of reasons for the same result?

MR KENNETT:   We have touched on this in our written submissions in reply, your Honour, at least insofar as it relates to a court and the position appears to be from the authorities that we analysed there that if that occurs then it is the first set of reasons that is to be taken as the operative reasons and whether there is an error is to be tested by reference to those reasons.  The production of a second set of reasons, as we understand it, would not be an error per se but it would not serve to immunise the first set of reasons from the finding that there is an error in them. 

GORDON J:   But is not the related proposition then when you do not have the second set – sorry, I withdraw that – when you only have one set, as you have here, then there is a presumption of regularity and the onus is on the person seeking to challenge them to identify what is wrong with them in the sense that there has been a substantive change giving rise to a different result - if you pick up the Soulemezis line and the Fletcher line based on Bromley and that line of authority which sits with the proposition you have just put.

MR KENNETT:   Yes, your Honour, we would say that, and it is very common, of course, for courts to give reasons ex tempore and to do a certain amount of tidying up of them before they are published.  There may sometimes be ‑ or there are sometimes questions as to whether what has been done is more than tidying up, but it is necessary, we would say, for the person who seeks to complain about it to be able to show that what purports to be the reasons are not, in actual fact, the original reasons of the court.

STEWARD J:   Mr Kennett, I must say, I thought the proposition was that, absent evidence of a significant change between the oral reasons and the written reasons, it would be improper for an appellate court to interrogate the transcript, and instead it would look at the written reasons delivered as the final set of reasons which bear, to quote the Court of Appeal, that which bears the stamp of the judge’s approval.  Is that not the correct proposition ‑ ‑ ‑

MR KENNETT:   That is – yes, your Honour, it is.  It is, one would say.  Now, to finish with procedural fairness, I have mentioned what the notion of denial of the possibility of a successful outcome, picking up the language of Justices Gordon and Gageler in WZARH, which is in tune with, of course, recent decisions concerning materiality in this Court.  A successful outcome there means, of course, a successful outcome in the actual decision that is impugned, not a successful outcome elsewhere.  And the deficiencies in provision of reasons by a decision‑maker, including a court, is just not capable of depriving a party of a successful outcome, and so it just does not enter into the sphere with which procedural fairness is concerned.

So, for these reasons, we say her Honour in the Federal Court erred in identifying what had happened in connection with the reasons of the Circuit Court as a denial of procedural fairness.  And we say that even if it could be said that deficiencies in the provision of those reasons had hampered the first respondent in presenting his appeal, that would not go to whether the hearing in the Circuit Court had been procedurally fair, but as we seek to submit in paragraphs 22 to 24 of our written submissions, there is no basis, we would say, to conclude that his appeal was materially hampered by what had happened in relation to the reasons.

As we note there, the respondent had the Circuit Court’s written reasons some considerable time before his appeal was heard, and as I have said earlier, if he had applied to amend his grounds in light of the reasons, it is hard to see how that could have been resisted, at least if it were done in a timely way.  I would also note, in this connection, that the notice of contention appears to seek to negative the argument I have just put, to what end, I must confess, I am not completely sure, but I will come to that.

The notice of contention appears to contend that one does not know whether the original oral reasons of the Circuit Court, said to be its true reasons, were the same as its written reasons.  Now, I will come to that later, as I said, but just note for present purposes that that rests entirely on speculation, and if in fact there is no substantial difference between the two sets of reasons, then not having access to the oral reasons, of course, was no handicap to the respondent in framing and presenting his appeal.

That is what I wanted to say about the first set of issues.  As I say, they are 2.1 and 2.2 in the notice of appeal.  The ground that is numbered 2.3 goes to the question what the Federal Court should properly have done if it were right in considering that there had been error in the Circuit Court.

We note, and it is I think uncontroversial, that the appeal to the Federal Court was an appeal by way of rehearing.  The function of the court in an appeal of that kind is to give the judgment that ought to be given if the case came at that time before the court at first instance.  Your Honours will have seen in my outline that I have put those words in quotations marks, and they are drawn from Victorian Stevedoring v Dignan (1931) 46 CLR 73 at page 107.

In other words, we say the role of the court in an appeal by way of rehearing is to arrive at the right substantive result, if it can, and thereby to correct error.  I had sent in yesterday for your Honours a reference also to Allesch v Maunz (2000) 203 CLR 172, particularly to paragraph 23. I wanted your Honours to have that because that makes the point that the exercise is one of correcting error, and correcting error in the result.

At paragraph 23 of Allesch, the majority distinguished between an appeal by way of rehearing on the one hand and a hearing de novo on the other, and make the point that in the case of a rehearing, the powers of the appellate court are exercisable, their Honours say:

only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error –

So we say the function of her Honour, if she were right in perceiving error in the Circuit Court, what the appellate function required of her Honour then was to consider whether she was able to ascertain the correct substantive result, consistently with the limitations on an appellate court.

We note of course that in seeking the correct substantive result, the procedures of the Federal Court were apt to ensure that the first respondent, like any other party, was able to advance any argument that he wished to.  So there was a capacity, at least in some cases, to cure any denial of procedural fairness in the court below.

We also acknowledge that there are cases where the appeal court cannot safely ascertain the correct substantive result and that therefore the correct response is remitter to the court at first instance.  An example of that might be if the primary judge had failed to make relevant findings or had not explained those findings, or perhaps if the appellant had been denied procedural fairness at trial in some way that led to relevant evidence not being adduced.  It is not always appropriate, of course, for the appellate court to receive that evidence and deal with that at first instance, so perhaps in a case like that remitter would be the appropriate outcome. 

This, of course, was not one of those cases.  As I have somewhat laboured, there was nothing here to prevent a Federal Court from deciding for itself whether the Tribunal decision was affected by jurisdictional error.  As I say that I am reminded that this Court has recently considered issues not far removed from that in the case of SZVFW, which somehow failed to make it into our submissions or I think our learned friend’s, and I have the Australian Law Journal Report citation for that, it is 92 ALJR 713. It may not be in the Commonwealth Law Reports but it only occurred to me as I was coming into Court.

That, of course, was a case of legal unreasonableness where the intermediate appellate court had, in a sense, deferred to the primary judge in that evaluative exercise of whether a decision had been unreasonable and the view of this Court was that even though it was evaluative it was an exercise that had one right answer and the duty of the appellate court was to come to the right answer, and in a judicial review case it was in a position – in as good a position as the primary judge had been to come to that answer.

The present circumstances are not entirely dissimilar to that, although on the position I am now hypothesising this is a case where error is discerned in the reasoning of the Circuit Court, nevertheless, we would say, in a rehearing the function of the appellate court, if it can do so safely, is to decide the substantive question in the matter.  The Court here had addressed itself to that question, and we would say decided it by saying there was no error in the Tribunal decision.  Even if that is going too far, we maintain the submission that the Federal Court here was well and truly equipped to undertake that assessment and to give its own judgment on the substantive matters and should have done so. 

Your Honours, those are the submissions in relation to the grounds of appeal.  I was going to say something now about the notice of contention, although I may need to come back to it in reply.  I propose to mention ground 3 first because ground 3 touches on the topic I have just been addressing, namely, whether it was possible for the Federal Court to ascertain the existence or not of any jurisdictional error or of any relevant error by the Circuit Court and any jurisdictional error by the Tribunal. 

We note that ground 3 in the notice of contention introduces a concept of reviewable error, which is language that we say more properly belongs in judicial review of an administrative action rather than appeals, and it tends to obscure the difference between the two exercises.  Reviewable error by a tribunal is an error which would justify the court sending the matter back to the Tribunal to decide according to law, and that is in a judicial review context, of course, where the court is not empowered to decide the merits of the case.

On the other hand, appealable error by a trial court calls for the appellate court to decide, if it can, what the correct judgment should be, and that is a case where the court on appeal is absolutely entitled and prima facie required to enter onto the substance of the case and to decide what the judgment should have been.

Here we would say what the correct judgment should have been did not depend on any reasoning expressed by the Federal Circuit Court in its oral reasons.  It did not have findings to make based on the credibility of witnesses, for example.  So, even without access to the oral reasons ‑ assuming for the moment there is some difference between those and the written reasons, even without access to the oral reasons we would say there was nothing here to prevent the Federal Court from considering the evidence and from deciding the issues for itself.

As to grounds 1 and 2 of the notice of contention, these grounds and the way they are developed in our friend’s written submissions give great emphasis to unfairness that is said to have arisen in the appeal to the Federal Court because, so it is said, the respondent did not have the true or operative or real reasons of the Circuit Court, namely, its oral reasons.  Reading this again yesterday, it appeared to me that this analysis does not quite reach a landing as to what is the fundamental point that is being agitated. 

One way in which we might read the notice of contention is that it is contending that the procedure in the Circuit Court was an unfair procedure and it was unfair because of the consequences it had in the appeal.  If that is the argument, then it does not tackle the basic proposition I have advanced earlier that procedural fairness is concerned with the procedure leading to the decision, not what happens afterwards.  If that is the argument, then all it is doing is adding another layer to what was said by the Federal Court in paragraphs 38 to 41, pages 60 to 62 of the appeal book, about the consequences that were said to have hampered the respondent in the conduct of his appeal.  It just adds another layer to that analysis which we say is just irrelevant to any question as to whether the Circuit Court met its obligations.

The other way in which it occurred to me that one might read these grounds of contention is that the procedure in the Federal Court was unfair and that was an unfair procedure because the respondent did not have and could not get the – or was not allowed to have the Circuit Court’s oral reasons. 

At the level of principle there seem to be two problems with that, if that is the argument.  The first is that if I want to run a case in court but I do not have the document that I want or need in order to make good my argument that without more does not indicate any unfairness in the court’s procedure.  It might do so if I was denied the chance to use the court’s processes to get the document but nothing like that happened here so no flaw can be seen in the Federal Court’s process arising from the absence of the Circuit Court’s oral reasons.  Indeed, the Federal Court went out of its way to consider the consequences of a point that the respondent himself had not even raised. 

The second problem is that if the process of the Federal Court were procedurally unfair then the question for this Court would be what relief, if any, ought be granted.  Appeal here is an appeal in the strict sense, of course, where the Court would give the judgment that ought to have been given below – Dignan at the page I referred to earlier makes that point but we would come back again, therefore, to the point that no jurisdictional error by the Tribunal has ever been demonstrated and none is contended for here and the correct judgment would seem to be – the judgment that ought to have been given would seem to be the judgment given by the Circuit Court. 

Even aside from those problems, the grounds of contention fail, we would say, at the factual level.  The argument, we would submit, can only be made out if there was a material divergence between the two sets of reasons of the Circuit Court.  It is not enough to speculate that there might be a difference.  The point is capable of proof and it ought to be proved.  It needs to be proved, we would say, before it leads anywhere and on the material that we do have the finding would be that the published reasons are, as is usual, a tidied‑up version of the oral reasons. 

Your Honour Justice Steward referred me to the proposition about taking up and relying on the certification that the Court gives to its published reasons.  The material that is before the Court indicates that your Honours have the Circuit Court’s reasons at pages 28 to 41.  The first page indicates the date of delivery of judgment albeit there is an error as to where it was delivered and then at the end of the document there is a certification by the associate that these are the reasons of the primary judge.

EDELMAN J:   Except your submission is that that certification should be ignored if those reasons were to conflict with the oral reasons in any substantive respect, that the oral reasons, as first in time, would have to be the prevailing reasons.  That is as I understood your primary submission.

MR KENNETT:   It is not my submission, your Honour, it is a point which I think our friends would rely on and which we would say one does not need to get to, but ‑ ‑ ‑ 

EDELMAN J:   I appreciate your starting point is that there is no conflict between the oral reasons that were given and the written reasons, but as I understood your answer to the question I asked earlier, it was that if there is a conflict between the two, the oral reasons, as the “first in time” reasons, would be the ones that would prevail, despite the certification at the end of written reasons.

MR KENNETT:   If there was a material divergence - I am just trying to identify where we dealt with this.  I think it was in our reply submissions, but, yes, what I had in mind, your Honour, earlier, was the material that we refer to in paragraphs 34 to 36 of our submissions in‑chief, in particular at paragraph 36 we refer to some authorities which suggest that if an impermissible variation between ex tempore reasons and published reasons is identified, and leaving aside the question of how one might do that, given the fact that the court below has certified its reasons, if that can be done, then one goes to the original reasons in order to determine whether the court committed some error.  The variation is ‑ ‑ ‑ 

GORDON J:   Sorry, Mr Kennett, is not the proposition, though, that one starts with the reasons which have been certified before the court in the form in which they are in, and identifies them as being the reasons of the court, and absent evidence to suggest otherwise, with the onus being on the person seeking to say that they are not the certified version, they are taken as the reasons?

MR KENNETT:   Your Honour, that is certainly our starting proposition, and one we would hope our finishing proposition as well.

GORDON J:   I think you cited in your submissions the decision of Justice Foster in Khondoker where he sets out that there has to be cogent evidence, they have got to lead it and they have got to establish that there is some discrepancy.

MR KENNETT:   Yes, your Honour.  We certainly rely on that.

GORDON J:   So I am a bit confused about this contention that you start with the first.  Do you mean on the basis that there has been evidence to suggest some change, either by omission or otherwise, some change about a finding of fact or otherwise that has, in effect, been removed?  Some substantive change that means you go back to the first reasons.  Is that what the submission is?

MR KENNETT:   Yes.  Yes, your Honour.  It has to be, so we would say.

STEWARD J:   Mr Kennett, I think the way it was put in Bromley was, if there was evidence that the judge had in substance rewritten his judgment, so as to put a completely different complexion on the issues in dispute, then you would examine and interrogate the transcript.

MR KENNETT:   Yes.

STEWARD J:   Is that how you put it?

MR KENNETT:   It is, your Honour.  And I think where I was up to was seeking to submit that there is no evidence here that comes close to demonstrating any such rewriting.  And such as there is indicates that the written reasons are the reasons of the primary judge.  There is also, we would submit, no evidence that the original reasons, to the extent they matter, were withheld from the first respondent or unavailable to him.  Those reasons had been given in open court, albeit not interpreted for his benefit.  There is nothing to suggest that he could not have obtained a transcript of them and, indeed, some reasoning of Justice Mortimer at page 59, paragraph 30 seems to indicate an assumption that he could have obtained the transcript had he wanted to. 

True, he was representing himself, relying on interpreters and can be forgiven for not being familiar with those processes, but the court’s duties of procedural fairness do not extend to obtaining documents on behalf of litigants or suggesting to a litigant how he or she might build a case.

So, the contention, we would say, does not get off the ground in a factual way aside from the other difficulties that I have sought to indicate that it has and, ultimately, the grounds of contention do not demonstrate any appealable error by the Circuit Court and thus do not support, as they purport to do, the orders made by the Federal Court.  If your Honours please, those are the submissions of the appellant

KIEFEL CJ:   Yes, thank you, Mr Kennett.  Yes, Ms Cahill. 

MS CAHILL:   If it please the Court.  As to ground 1 of the appeal, that is ground 2.1, we accept that at paragraphs 35, 41 and 51 of Justice Mortimer’s reasons her Honour decided in substance that it was an aspect of the requirement of the Federal Circuit Court to provide procedural fairness to provide reasons for decision.  That aspect of the decision we do not seek to uphold.  We accept that the hearing rule does not extend to the decision itself or the manner of delivery of the decision.  But we say that when one understands her Honour’s reasoning and looks into it in more detail there are two other strands of reasoning that can be identified between paragraphs 35 and 41 and, indeed, all three come together at paragraph 41 at pages 61 to 62 of the appeal book. 

The second strand is a conventional one.  We see at reason 35, page 60 from the second sentence, again at paragraph 40 on page 61, and then at page 62, the balance of paragraph 41 from about line 14 onwards, her Honour referring to the duty that a court has to give reasons for decision, that being a duty that is central to the exercise of the court function as explained in Wainohu, in other cases.

The other strand of reasoning that can be identified is to focus specifically on the relationship of the delivery of reasons for decision to the exercise of appeal rights and, specifically, the procedural fairness to be accorded we say by the Federal Court in that regard, and we say that although it is less clearly expressed it is nevertheless discernible at paragraph 39 on page 61 where her Honour is discussing the Federal Court’s “appellate function” and the processes that require “reasonable access” to the reasons below.

Presumably that is why there is a reference at paragraph 33 in those first two lines to her Honour mentioning about the Federal Court as well as the Federal Circuit Court being engaged in the exercise of the administration of justice in the appellate context.  At reasons 51, which is at page 64, the last paragraph of the judgment in the second line, although her Honour – we do not seek to uphold that first sentence where her Honour is very clear about the conclusion regarding the denial of procedural fairness by the Federal Circuit Court - she then goes on to say unless the orders are remitted:

the denial will remain uncorrected.

That, we say, conforms to this strand that we see in paragraph 39 of the Federal Court being obliged to provide procedural fairness obviously in relation to the exercise of the appeal rights and the inability to do that in this case because of the circumstances of the delivery of reasons.  It is that element of the decision that we seek to uphold and if we are wrong about – or this Court does not accept the submission that that is what her Honour was striving to do - reason by way of that third strand - then we rely on the first ground of our notice of contention.

We say that the concept of the appellate court being required to provide procedural fairness relevantly to the way in which the reasons for decision below are provided follows as a matter of principle.  It is an uncontroversial proposition, as I say, that courts have a duty to give reasons.  Whilst there are a number of reasons articulated for that duty, one obvious one that is often foregrounded in decisions is the requirement of reasons to enable the proper exercise of appeal rights.  Logically, therefore, the provision of reasons is relevant to an assessment of whether the appeal process is or has been procedurally fair in terms of whether a party has had the opportunity on appeal to advance its own case.

KIEFEL CJ:   Is it correct though to refer – once you are talking about the appeal rights being affected by reasons or the deficiency of reasons or the lack of them, is it correct to talk about a denial of procedural fairness or is it more correct to say that there may be an impairment of the right of appeal which the rules of the court in which the appeal lies address, and that the remedy of that impairment lies in the invocation of the rules of the appeal court?

MS CAHILL:   What we would say is, if the circumstances of delivery or non‑delivery of the reasons for decision impairs, to use your Honour the Chief Justice’s language, the ability of a party to pursue an appeal to advance its case, that is the language of procedural fairness, or denial of procedural fairness in other terms.  True it is that the rules of court may step in, if applied, to ameliorate that denial of procedural fairness ‑ ‑ ‑ 

KIEFEL CJ:   But, Ms Cahill, it is not a denial of procedural fairness, is it, if the Court is able to correct the impairment?  A denial of procedural fairness is a conclusion, it is not an assertion, and it is only a conclusion reached after one determines that whatever impairment has been effected cannot be corrected, and one is left with a conclusion that the procedure has gone wrong.

MS CAHILL:   Yes, I accept that, your Honour, and we would say that was the circumstance that applied in this case, where the Federal Court correctly concluded that it was not in a position to correct the denial of procedural fairness that had occurred, and that is really what her Honour has said at paragraph 51 ‑ ‑ ‑ 

KIEFEL CJ:   But is that correct, because there was no suggestion in terms of practical impairment here?  There was no suggestion that the respondent needed to amend the appeal grounds or that the reasons, when finally delivered, were productive.  I am putting aside your notice of contention point about whether or not the oral reasons were different, but there is no suggestion, at least in relation to the written reasons, that there was anything that needed to be done that were not done, so I am finding it a little difficult to understand what her Honour was really identifying as the practical impairment that could not be addressed by either leave to amend or an extension of time, because none of those things actually seem to have arisen.

MS CAHILL:   Yes.  So, if I can be clear, your Honour, our case, in seeking to uphold the decision, is put only on the basis that the issue regarding the delivery of the oral reasons and their potential difference from the written reasons was what caused the denial of procedural fairness.  We do not put it on any basis other than that, and specifically we do not put it on the basis that the written reasons ‑ ‑ ‑ 

KIEFEL CJ:   I see, that is what you ultimately contend is the practical injustice?

MS CAHILL:   Yes.  That could not ‑ ‑ ‑ 

EDELMAN J:   Do you contend that there actually was a difference, or is your submission that there was a possible difference that somehow gave rise to a practical injustice?

MS CAHILL:   Yes.  Yes, possible or potential, and if I can go directly to it, because it seems to go to the heart of the differences between the appellant and the first respondent, ultimately.  The point we say is in fact paradoxically made good by the appellant’s submission where it relies on the fact that any difference between the oral reasons and the written reasons needed to be proved by the first respondent, and that point is, as my learned friend said, elaborated between paragraphs 33 to 36 of his primary submissions, but in particular at paragraph 35, and I think it was your Honour Justice Gordon who referred to the case of Khondoker, which is cited, footnoted, in relation to paragraph 35.

What our friends remind us here is that in order to even articulate the point – may I go back a step and say, before one can even interrogate the point, and then articulate it, one has to get access to the transcript, and one may only get access to the transcript by leave, providing cogent evidence.  Khondoker, which regrettably is not in the joint book of authorities but I think it was your Honour Justice Keane was articulating that proposition from Bromley about the need to demonstrate that the judge has, in substance, rewritten the judgment to put a completely different complexion on the issues in dispute and only then will the appeal court have the means to have a look at the differences.

That proposition is also articulated in Khondoker at paragraph 84 is the relevant paragraph.  Here we have the position where the first respondent was self‑represented before the Circuit Court.  The reasons were – the oral reasons were not interpreted for him and, therefore, he was in no position to approach the Circuit Court for the leave to gather – to first of all interrogate and to then gather any evidence as to the difference, so there may have ‑ ‑ ‑

GORDON J:   Is that the right point of analysis, though, Ms Cahill?  Is that the right point of the analysis?  The way Mr Kennett put it in submissions, as I understood it, that your client bore the onus, your client had available to it before the Federal Court, before Justice Mortimer, the relevant rules of court to enable that to be addressed and you did not do it.

MS CAHILL:   I think I have two answers to that point, your Honour Justice Gordon.  The first is to say that her Honour’s finding at paragraph 20(h) of the reasons, which is at appeal book page 55, is not challenged by the Minister.  So, that is a finding of fact that her Honour made which rather militates against the proposition put against us that this was something we were able to address but failed to do.

STEWARD J:   I do not think that finding of fact addresses, with respect – I do not think that finding of fact addresses Justice Gordon’s point which was that it was legally, perhaps not practically, open for your client to apply for leave to seek the transcript.  It was true, by the time it got to Justice Mortimer, that had not taken place so there was no way the Federal Court could make the comparison.  But I think the position is it was legally open to your client to pursue that as part of its preparation of its appeal.

MS CAHILL:   The difficulty though ‑ and perhaps this is what our submission reduces to ‑ if one defers to the reasoning in cases like Bromley and Khondoker then the only way that avenue was open to us was by somebody giving evidence of what those oral reasons were ‑ ‑ ‑

GORDON J:   I do not know about that.  Is that right?  If you look at what is set out by Justice Mortimer at paragraph 20 – if we forget about (h) for the moment, but just (a) to (g), there was material available to your client even absent the transcript to be able to say to them, “These are the facts and matters that we rely upon in support of an application for access to it and we ask you that you direct that that be made available and produced.”  So there were other facts available. 

As Mr Kennett properly conceded, the cover sheet for the reasons suggests that the reasons were delivered in Sydney, but they were actually delivered in Perth.  There is a whole range of things that could have been relied upon which were not put in support of such an application.

MS CAHILL:   I think the way in which her Honour dealt with this, which is what we seek to uphold, is to say recognising those issues and the potential for the reasons to have been different, the disposition was then to allow it to return to the Circuit Court for rehearing, so that this applicant, the first respondent here, would have the opportunity to have reasons delivered, as he was entitled to expect and to formulate any subsequent…..the matter.

KIEFEL CJ:   Ms Cahill, if, as Justice Steward was asking of you, there was no failure of process in the sense of availability of procedural remedy for the lack of an understanding of oral reasons as they were delivered, does not your case come down to there being a failure to have provided an interpretation of the reasons as delivered?  That is really what it comes down to, does it not, the ability to understand as they were being delivered.

MS CAHILL:   Yes, I would accept that, your Honour.

KIEFEL CJ:   I do not think there is any authority that you can point to for that being a denial of procedural fairness.

MS CAHILL:   I cannot point to an authority, no, your Honour.  All I can do is reason from principle in the way in which I have sought.

KIEFEL CJ:   If one assumed that there might be some disparity, which is the premise, the hypothetical premise about the oral reasons and the written reasons, we are having to assume a hypothesis that the oral reasons somehow favoured your client, which seems a little difficult.

MS CAHILL:   With respect, I do not think we need to go that far.  Her Honour’s reasoning or finding, as I say, which was not challenged was she had no way to assess the similarities or differences.  As a result of that, that meant that there was a potential that they were different and at the very least in terms of procedural fairness, we say, the first respondent ought to have had that opportunity, an opportunity that any other person in his position who could speak English and understand the reasons would have to look at the oral reasons together with the written reasons and say, well, either they are completely different or they are not, as the case may be, and then cut their appeal…..accordingly.

Now, that opportunity was denied the first respondent in the circumstances of this case.  I accept that we make paragraph 20(h) of her Honour’s reasoning do a lot of work here.  But effectively what her Honour has found, and it has not been challenged, is that there was no way for her to resolve that issue.  So her Honour did not conclude that it was simply open to her to direct the Federal Circuit Court to provide those reasons and for us to go back to the ‑ ‑ ‑

KIEFEL CJ:   But essentially what her Honour must be taken to say is that there has been a denial of an opportunity to investigate whether there is a case.  If that is the case, it seems a rather unusual remedy for that failure to remit the matter to a court to determine the substantive question because that does not remedy what the failure is.

MS CAHILL:   So, just moving to that aspect of the appeal and our corresponding aspects of our notice of contention, your Honour, the issue with the potential for there to be relevant disparity between the two sets of reasons afflicted the Federal Court just as much as it did the first respondent, but in different ways insofar as her Honour was charged with the duty of reviewing the operative reasons of the Federal Circuit Court.

Her Honour found herself in a not dissimilar position to the first respondent, and she was very open about that.  She identified that she could review the written reasons and did so, and it was in relation to the written reasons of the Federal Court, not the Tribunal’s reasons, that her Honour said at paragraph 43, “Well, I cannot discern any possible error”.

But she then goes on to be very explicit at paragraph 49 at appeal book 64, which is – well that is what I have been able to do with the written reasons, but I have not been able to delve any further and consider whether they are the operative reasons or not, and if they are not, whether the operative reasons disclose error.  That conforms to that finding that her Honour made at 20(h), and is what renders the remittal back an appropriate disposition, we say, because her Honour could not ‑ - -

GORDON J:   Ms Cahill, do you accept that submission in effect reverses the presumption that we have been putting to you, that one takes the certification of the reasons on their face and accepts them as the reasons which are operative, unless there is cogent evidence to the contrary?

MS CAHILL:   With respect, I do not accept that it reverses the presumption, in the context in which the issue arises, your Honour.

GORDON J:   What does that mean?

MS CAHILL:   Well, what it means is this - is that her Honour has specifically identified a denial of procedural fairness and an issue regarding whether or not there could be a potential disparity.  It is a very different situation from where someone has not been denied procedural fairness, and no issue is raised about the validity of the second – I have put that badly, it is not a question of validity – or the presumption that those are the operative reasons - the later, authenticated reasons.

EDELMAN J:   But Ms Cahill, your submission then does not really depend at all upon any of the special facts of this case.  Does it not ultimately just reduce to the point that in every case where an interpreter is not provided for oral reasons for decision, in circumstances where interpretation assistance is needed, then if written reasons are subsequently given there will be an error of law and the matter will have to be remitted?

MS CAHILL:   It might be able to be ameliorated, though, your Honour.

EDELMAN J:   How?

MS CAHILL:   If your Honour is articulating that principle on the basis that, for example, the reasons are not subsequently translated or a lawyer is not engaged subsequently for the applicant and they are able to get access to the transcript or whatever, then yes, I accept the proposition that your Honour is putting to me, but the point that I am seeking to address here is the point that her Honour the Chief Justice put to me, that procedural fairness is about the conclusion, so one needs to look at what passes from the time that those ex tempore reasons are delivered to the point at which the person’s right to be heard completes, and whether that process as a whole has been fair, and it might be that, in or during that path, something has been done to mitigate the denial of procedural fairness.

STEWARD J:   May I ask a question?  Do you say that the first respondent would have suffered the same loss of opportunity if the judge had instead reserved and then had published and delivered an English judgment, or a judgment written in English, and sent it to the first respondent?  In that case, would he have suffered the same loss of opportunity?

MS CAHILL:   No, your Honour.

STEWARD J:   Why is that?

MS CAHILL:   Well, if there was only one set of reasons that were capable of being translated readily, and understood by a lawyer, then one can see that the circumstances are qualitatively different.

EDELMAN J:   If the written reasons – if there had been two sets, but the written reasons had contained the usual statement at the start that they are a written version of the transcript as adjusted for syntax or grammar, would there be any difficulty with that?

MS CAHILL:   I think so, your Honour.  I think the procedural fairness would still require a litigant to have the opportunity to consider and, if appropriate, present a case on the basis of the authorities that say - that identify which reasons are the operative reasons, to the extent that there is any difference between them.  That is not cured simply by the wording that is placed on the front of the written reasons for decision.  It is a more substantive exercise than that.

EDELMAN J:  It comes very close to a substantive right to interpretation of oral reasons for decision, does it not?

MS CAHILL:   Well, no.  With respect, we would not say that.  It might be the case that when one has a self‑represented litigant before the court who requires the assistance of an interpreter, it will be very often the case that interpretation will be required, or steps will need to be taken to ensure that

that person has access to an intelligible version of the oral reasons.  But that is not an exceptional proposition in terms of a procedural fairness analysis, any more than one might say one always needs to give a reasonable opportunity to respond to a new argument that might be determinative of a person’s case. 

EDELMAN J:   Except your submission is that the judge’s certification that the written reasons conformed to the oral reasons is not such a provision of an intelligible version of the oral reasons to an applicant. 

MS CAHILL:   Your Honour, that is right, and the reason for it is because another litigant in different shoes, those different shoes being somebody who can understand English – somebody who is represented by a lawyer, if they cannot understand English - has a right that a litigant in the position of the first respondent does not have to consider if they have a case and then advance it on the basis of a potential difference between those two sets of reasons, notwithstanding the certification that appears on the latter. 

If I might just have a moment – I have ranged across the breadth of my submissions and I will just to check to see if there is anything further.  I just wanted to be clear to your Honours that in relation to the second ground of appeal, that is ground 2.2 of the Minister’s appeal, we do not seek to uphold that aspect of the decision much because of the submissions that I have made in response to questions from the Court this morning.  We recognise that there are – that every case of procedural fairness is to be viewed by – or denial of procedural fairness is to be viewed by reference to the conclusion and is a circumstance‑driven process and that it can be ameliorated depending upon the circumstances.

The only other point I just wanted to make about that second ground is to just point out that although at…..her Honour articulates in terms of proposition that there needed to be written reasons produced as soon as possible after the…..ex tempore reasons, if your Honours also go to paragraph 41 at pages 61 and 62 there, the first part of paragraph 41 you will see that that proposition is ameliorated a little to the extent that her Honour identifies ways in which the effect of the ex tempore reasons could be provided other than by way of writing.  Nevertheless, her Honour still holds that the prompt delivery of reasons in whichever form is still required, and we do not seek to uphold that aspect of the reasons, as I say.  If there are no further questions, those are my submissions.

KIEFEL CJ:   Thank you, Ms Cahill.  Do you have anything in reply, Mr Kennett?

MR KENNETT:   Yes, your Honour, two loose ends from my submissions in‑chief.  The Commonwealth Law Report reference to SZVFW which I mentioned in passing is 264 CLR 541. The affidavit that I mentioned which did not find its way into the material before this Court was 16 pages in total, including the annexures. Those are the loose ends.

Just very briefly in relation to our learned friend’s submissions.  So far as other strands of reasoning besides procedural fairness or besides what was said to be procedural unfairness in the delivery of reasons, to the extent that those other strands are present in Justice Mortimer’s reasons the first thing one can say about those is that they do not identify any error by the Circuit Court. 

True it is that the Circuit Court was obliged to give reasons, but her Honour never suggested that it had not done so.  Nor could it have been suggested.  Secondly, the link between reasons and the effective exercise of appeal rights can be accepted, but to say that does not indicate here any error by the Circuit Court, the only error that is identified by her Honour is the denial of procedural fairness as I have indicated and that is the only error that her Honour mentions in the concluding paragraph, paragraph 51 on page 64, and it is that denial or what her Honour regards as a denial of procedural fairness that, in her Honour’s view, is required to be corrected and is to be corrected by remitter. 

KEANE J:   It is interesting, is it not, Mr Kennett, that in paragraph 51 it is the denial that is to be corrected.  There is no suggestion that there is a decision that is imperfect in any way because of the denial.  It is not about correcting the decision; it is about correcting the denial.  The denial stands free and alone without actually having to link it to some problem with the decision.

MR KENNETT:   Yes, that is so, your Honour, and we would submit of course that it was not open to the court in an appeal to set aside a judgment below and remit it back purely for the sake of correcting some aspect of the procedure that did not constitute error by the – or that did not constitute error in the result by the court below. 

Now, our learned friends, as I understood them, did not seek to support her Honour’s reasoning leading to that conclusion that there was a denial of procedural fairness in the Circuit Court.  The reasons do not indicate any other form of error by the Circuit Court.  There is an argument, as I understand it, that the appeal was unfair because of what had happened, to which we would say if the Federal Court was not affording the respondent procedural fairness, then it should not have given judgment on the face of it.  It should have adjourned the case to allow the situation to be remedied by use of the rules of court to which the Chief Justice referred.  If the problem was an underlying one, not soluble by anything the Federal Court could do, then it would follow that the failure to fix the problem was not something for which the Federal Court could be criticised, not something that would lead to a point of contention.

The next point I wanted to mention was paragraph 20(h) of her Honour’s reasons, on which emphasis was placed.  That is, as my learned friend indicated, not contested.  There is, however, a question how far it goes, and we would submit that it does not take matters very far at all in the light of the proposition arising from Bromley, which your Honours have raised with me and with my learned friend in‑chief - with me in‑chief and with my learned friend. 

The final point is that, as emerged from your Honours’ exchanges with my learned friend, the respondent’s arguments really do seem to come down to a failure to interpret the oral reasons and to come close to suggesting that if oral reasons are not interpreted then error will flow, or at least error will have to be disproved somehow, when the later written reasons arrive.  If that is so ‑ ‑ ‑ 

GORDON J:   Mr Kennett, can I ask you a question about that?

MR KENNETT:   Yes.

GORDON J:   I have…..AMF15, the Full Court of the Federal Court looked at the court’s duty to unrepresented litigants in relation to fairness, and it in effect explained that the court had the role to play to ensure that there was fairness.  Is that where that would fit in that sort of argument, this failure to interpret oral reasons?

MR KENNETT:   Perhaps with some difficulty, your Honour, because the reasons come when the result has been announced.  So to the extent that there is a duty to conduct justice openly, to administer justice openly and therefore to give reasons for purposes related to that, which are largely public purposes, and then there is a practical need at least to give reasons which are useful to the disappointed applicant in framing an appeal, that all comes after the trial court has reached its decision.  So it is not entirely clear to me at least that that comes within what has been discussed in AAM15. 

But if there is a requirement arising out of the court’s obligations, a requirement to interpret the oral reasons as well as the contents, the earlier contents of the proceeding, then it is not clear why one would then distinguish between somebody who does not speak English and somebody who has some other kind of difficulty in understanding the court’s reasons.  In a judicial review case there might be many people, including perhaps even some lawyers, who would have trouble following the oral reasons as they were delivered, without any linguistic issue, and who will need the

written reasons in order to be able to understand properly what was said and frame grounds of appeal.

So that if the proposition is that there is a necessary failing in not having the reasons given orally in a form that is comprehensible, that would be a potentially very far‑reaching proposition, and not limited only to the issues of interpreting.  Your Honours, those are the submissions in reply.

KIEFEL CJ:   Yes, thank you, Mr Kennett.  The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.

AT 11.25 AM THE MATTER WAS ADJOURNED