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

[2020] HCATrans 66

[2020] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P62 of 2019

B e t w e e n -

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Applicant

and

AAM17

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 29 MAY 2020, AT 12.38 PM

Copyright in the High Court of Australia

MR G.R. KENNETT, SC:   May it please the Court, I appear with my learned friend, MS C.I. TAGGART, for the applicant. (instructed by Australian Government Solicitor)

MS P.E. CAHILL, SC:   If it please, your Honour, I appear with MR D.V. BLADES, for the first respondent.  (instructed by Rothstein Lawyers)

KEANE J:   Yes, Mr Kennett.

MR KENNETT:   Your Honours, the issues upon which the appeal in the Federal Court turned concerned the late provision by the Federal Circuit Court of its reasons for dismissing the respondent’s application for judicial review.  Your Honours will have seen that the reasons the Circuit Court were provided were published, provided approximately two months after the orders had been made, and after the filing of the respondent’s notice of appeal to the Federal Court.

EDELMAN J:   So when you say the late provision of reasons, do you mean the late provision of the written reasons?

MR KENNETT:   I do, your Honour.  And there is, of course, the earlier giving of oral reasons at the end of the hearing.  Justice Mortimer recorded a finding that the respondent had not been provided with a transcript of those reasons, nor, we understand it, was my client, and indeed I believe it is the practice that the parties do not usually get to see the transcript of the oral reasons.  But in the end, we would submit, that is a distraction because there has to be, either as an aspect of an exercise of judicial power or as an aspect of procedural fairness, a duty to give reasons, and the Federal Circuit Court gave reasons, it gave them, in a functional sense late, because nobody had them in the way that was suggested, least of all the respondent, until they were provided in writing.

The key point, we would say, is that the reasons were not given in a way that both parties could see and understand until sometime in July.  So it is lateness of reasons, we would submit.  That is the problem, if there is one, rather than something arising from a shorter or perhaps less elegant version of the reasons that have been given at the court at the end of the hearing.

The Circuit Court thus complied, albeit tardily, with the obligation to give reasons for its decision, which it, of course, had as a repository of federal judicial power and no complaint was made at the Federal Court, and no problem was raised by her Honour with the adequacy of those reasons as a statement of his Honour the primary judge’s findings and conclusions.

So there is no reliance, as we see it, by her Honour Justice Mortimer on any breach of the duty to give reasons which attends exercises of judicial power; instead, her Honour, regarding what had occurred as a denial of procedural fairness.  That, we would say, can only be right if a duty to give timely reasons and thus, in a material sense, a duty to give reasons per se ‑ ‑ ‑

EDELMAN J:   It is a duty to give timely reasons in a form which is comprehensible to both of the parties.

MR KENNETT:   Yes.  That would be bound up in the obligation to give those reasons and, of course, it did not occur.  It was not completed until a long time after the hearing.  Her Honour framed this as a denial of procedural fairness and we would say that that can only be right if there is an aspect of procedural fairness that requires the giving of reasons at all and further reasons in a timely way and that can only be right as a statement of what procedural fairness entails if there is a fundamental difference between a judicial process and an administrative one.  This Court said in Osmond, which it cited in the outline, that at least insofar as an administrative decision is concerned, the giving of reasons is not an aspect of procedural fairness.

EDELMAN J:   That really just depends on the statute though, does it not?  Procedural fairness is an obligation that is either expressed or implied into the particular statute and if procedural fairness requires by express or implied statement in the statute the giving of reasons, then that is what is required.

MR KENNETT:   Well, your Honour, clearly the statute may and many statutes do require the giving of reasons.  That would not at least normally arise as part of the implication of procedural fairness that occurs through common law principles of construction.  I do not want to get into the old discussion about whether procedural fairness is imposed by the common law or by the statute.  I think the position we have now reached is that it arises as a matter of statutory construction because that is how the common law tells you to construe statutes.

But be that as it may, if one decided that the statute implicitly required procedural fairness, it would not follow from that that reasons needed to be given.  That would require something further of the statute and not generally that something further is there.  In the case of a court, the something further arises from its status as a court, because the giving of reasons is an aspect of judicial power.

But just to go back to Osmond for a second, the rationale in Osmond, of course, is stated in terms of administrative decision‑makers.  But her Honour’s judgment below can only be right, we would say, if judicial decision‑making is an exception or is in a different position somehow and the principles of procedural fairness insofar as they apply to a court are different in that fundamental way from the principles of procedural fairness as they are to an administrator.

We would wish to submit if that is the rationale, that that is wrong.  Courts are the paradigm case, of course, of a body that has to afford procedural fairness.  But the duty that the courts have to decide cases fairly is the same duty and serves the same ends as the duty that common law finds imposed on administrators.  It serves its ends to do with fairness in decision‑making and robustness of decision‑making and, ultimately, the dignity of the individual.

But it is the same underlying concerns and it is the same body of principle, we would say, that falls to the court or an administrator.  And it is a body of principle that is concerned with the process of coming to a decision, not with the process of what happens after.  One can see that very readily when one considers decisions of this Court, such as Stead, such as WZARH, where the question is posed:  did this denial of procedural fairness – or might this denial of procedural fairness have made a difference to the outcome?  There is no way in which that question could ever be answered affirmatively in relation to a failure to give reasons but it is a question that has to be asked in relation to procedural fairness.

So we would submit that what is said in Osmond in relation to administrators applies equally to courts and courts have a duty to give reasons because they are courts, we would say, and not because they also have a duty to give people fairness.  A simple illustration of that, perhaps, is that courts always have a duty to afford procedural fairness, so said, at least Justice Gageler, in Pompano in the passage we have cited but there are some exceptions to the proposition that courts have to give reasons.  There are some decisions of a minor kind that do not require that.

EDELMAN J:  This analogy that you are drawing between courts and administrators may not really depend upon much more than precisely what you mean by procedural fairness, because if a particular statute provides that on its proper construction reasons are required for the validity of an administrator’s decision, it does not matter whether you call it procedural fairness or not, the failure to give reasons, as required by the statute for the validity of the decision, will lead to invalidity, will it not?

MR KENNETT:   It will, and the labels ultimately do not matter much, but it is important, we say, to keep in mind always the body of principle upon which one is drawing for a conclusion.  If reasons have to be given under a statute because that is what the statute says directly, that is a simple case.  If it is a question of the implicit – an implicit requirement of procedural fairness and no more – then one needs to know what the cases say about what that body of principle entails and that body of principle ordinarily at least is concerned with process and it is concerned with processes leading up to the decision that affects somebody’s rights. 

The duty to give reasons under which courts ‑ which falls on courts, this is discussed in the passage in Wainhou which we have given reference to in the written submissions.  So there is a set of…..that are overlapping but a bit different to the ends served by procedural fairness.  That obligation is concerned partly with the efficacy of an appeal process, but also with concepts of open justice and institutional responsibility owed to the public, not just to the parties who have got an interest in the matter.

So when we say courts are always ‑ or at least almost always obliged to give reasons, we are drawing on quite a different set of concerns, that which we are…..the decision‑makers, ordinarily you have to afford procedural fairness.  And thus we would say procedural fairness was the wrong lens through which to view what happened in this case in the Federal Circuit Court.  If the tardiness of the reasons was going to lead to an appealable error, we would say, it would have to lie in the absence or the inadequacy of those reasons.  But clearly the reasons were not absent by the time the appeal came on and clearly her Honour made no criticism of their adequacy. 

Just as a sidenote there before I move to the other set of issues in the appeal, obviously the respondent was at a disadvantage in seeking to frame an appeal so long as he did not have the Circuit Court’s reasons.  I have to obviously accept that.  That was a matter for resolution and capable of resolution in the appeal, we would say, and not a factor that caused him disadvantage by the time the appeal came on for hearing, which of course was some months after the reasons had been provided.  If one imagines what might have happened if the appeal had come on earlier and the reasons were not available, he might have sought an adjournment to get the reasons. 

That would be a brave junior counsel for the Minister who would have opposed that, one would think, or possibly he might have amended his grounds of appeal to say, “The court has not given me any reasons”, and that might in such circumstances have been a strong ground of appeal.  But at any rate, that is not how it turned out.  As it turned out, he came before the learned judge in the Federal Court with the reasons and with the opportunity to have studied them for some months and to amend his ground of appeal if he was advised to do so.  The really concludes what I wanted to say about the first set of issues in the case.

There is another set of issues which also raises, we would suggest, some interesting questions, and that is if the lateness of the reasons was an error of some kind, in particular if it amounted to a denial of procedural fairness, what then was the appropriate response of the appellate court?   …..we would say, of a court hearing an appeal by way of rehearing does not end with the identification of an error or failing in the decision below. 

For example, one sees the familiar procedure of the notice of contention where the respondent could say well, there may well be an error but the judgment under appeal is still right for different reasons.  A judgment below can and normally should be upheld if it is correct in its result.  It is an appeal by way of rehearing.  At least nominally is that getting to the right result?  Justice Dixon in Dignan’s Case talked about giving the judgment which ought to be given.  It stands in high contrast to a judicial review case because, of course, the appeal court can properly decide matters of merit for itself or matters of substance.  The judge hearing a judicial review case normally cannot and has to send it back.

In the situation of a court hearing an appeal by way of rehearing, if a procedural failing is uncovered in the judgment below, the next question for the appellate court, we would say, ought to be, can I nevertheless decide this case?  There may be circumstances where one cannot, because one does not know what the judge thought about the evidence, or because there was a failure of procedural fairness which could only be remedied by hearing a new body of evidence, something of that kind.  But in the ordinary case ‑ perhaps I should not say ordinary ‑ but in other cases, if, for example, the primary judge did not hear a party on an issue of law and comes to the appeal court, the appeal court will give that party the hearing on the issue of law and decide whether it is a good point or not.

EDELMAN J:   Well, a closer example, albeit one which might not be a relevant analogy here, might be one where no reasons are given at all.

MR KENNETT:   Yes.  Now, in the case of reasons, of course, inadequacy of reasons can be a ground of appeal, and there could be situations where the appellate court does not feel comfortable deciding the merits because the reasons are not a sufficient record ‑ or the record of the court below, including the reasons, is not a sufficient record of what the evidence was, and that makes it unsafe for an appellate court to try to decide the matter.  But that was not this case.  This was a simple judicial review case.  To the extent that there was any unfairness, it was eminently remediable by the respondent receiving a hearing, which he did receive, in the appellate court.

So a proper response for her Honour, we would say, even if the view she reached about procedural fairness was right, was to then ask whether she could decide for herself whether the judgment was right or wrong.  In

fact, she did that, and she decided that the judgment below was right and she nevertheless set it aside and remitted it.  We suggest, in writing, that that might not have very much utility, but quite aside from issues of utility, we would say in principle, that is a wrong response for a court hearing an appeal by way of rehearing; it should, if possible, give the judgment that ought to have been given.  If the Court pleases.

KEANE J:   Thanks, Mr Kennett.  Yes, Ms Cahill. 

EDELMAN J:  Ms Cahill, I think you are on mute. 

MS CAHILL:   A rookie error, I apologise, your Honours.  The first respondent’s position is that the particular way in which the oral and written reasons for decision were delivered in the Federal Circuit Court bear directly on why her Honour’s ultimate decision was correct to allow the appeal and remit the matter back to the Circuit Court and why in any event special leave ought to be refused.

The order made and authenticated by the Federal Circuit Court on 16 May 2019 had to have been predicated on the oral reasons delivered on that day and it is uncontroversial that the content of those oral reasons, although they were evidently articulated in open court at the time, were not communicated to the respondent because they were not interpreted for him.  They also, relevantly, were not provided to her Honour in the court below.  Your Honours can see that from reasons 17 and 23 of her Honour’s decision. 

The written reasons that were produced some two months later obviously, as a matter of law, were required to conform as a matter of substance to the oral reasons; whether they did or did not was not something that her Honour was able to ascertain and your Honours can see that from paragraphs 20(h) of her Honour’s reasons and paragraph 49.

It is relevant to also note if one goes to application book 31 and sees the front page of the Federal Circuit Court’s reasons that they are not expressed to be on their face in the usual way a version of the contemporaneous oral reasons revised for publication.  The important consequence of all this was that her Honour could not be satisfied that the relevant reasons, being the oral ones, had ever been communicated to the first respondent or whether those oral reasons contained relevant error.  And it is through that lens that each of the special leave questions and the correctness of her Honour’s decision needs to be assessed. 

When we turn to the first question, which is…..and framed as whether there was a requirement of procedural fairness to provide reasons for a judicious decision, we accept that this is how primarily Justice Mortimer framed her reasoning, but she did not do so exclusively, and at reasons 40 and 41we can see her referencing an uncontroversial proposition about the obligation of a court to give reasons for decision as an integral aspect of the judicial function, and the failure to do so amounting to an error of law. 

If we return to the point that the relevant reasons were the oral ones, if the court could not be satisfied that those reasons had been communicated to the first respondent, insofar as they had not been interpreted for him, nor was anything done to enable those reasons to be communicated to the applicant subsequently or otherwise, then the court could not have been satisfied that the reasons for decision were relevantly given or provided to the first respondent and it was therefore correct for her Honour to conclude that there had been an error of law and to decide the appeal on that basis.

So we say the correctness of the decision weighs against granting special leave, and where a failure to produce reasons in itself constitutes an error of law, whether or not that also amounts to a denial of procedural fairness is of reduced general importance if this case were taken to appeal.

EDELMAN J:   So your submission, effectively, is that the error that was made by the primary judge was the failure to give written reasons which revealed their identity with the oral reasons.  In other words, if the primary judge had given written reasons which stated on the face of those reasons that they were a reproduction of the oral reasons, which maybe had been edited for typographical errors, or for errors of syntax, then there would have been no error of law made.

MS CAHILL:   I would not go so far as to say that, your Honour, but I would say that is our primary submission.  I think it is a more complex question as to whether there is an error of law in circumstances where the reasons are delivered after the explanation of the appeal period, and that ‑ ‑ ‑

EDELMAN J:   Do we find your primary submission anywhere in the reasons of the appeal judge?

MS CAHILL:   Well, I have directed your Honours’ attention to the finding of fact at 20(h) at application book 55, and in the context of the third special leave question, which goes to the question of the remittal, at reasons 49 to 51 at page 64 we would say it is very clear that the rationale for remittal emerges from the matters expressed at paragraph 49, that her Honour has no way of knowing whether the two sets of reasons were the same.

So, in fact, and contrary to the submission of my learned friend, her Honour did not find that the decision below was correct.  What her Honour found was that there was no error in the way in which the Federal Court approached the exercise of its jurisdiction in relation to the written reasons but that left extant the question as to whether or not the decision was correct, based on what I would describe as the operative reasons.

Now, coming back to your Honour Justice Edelman’s questions – so that is the remittal point – the question of how her Honour frames the issues attending the first special leave question regarding procedural fairness as an aspect of the reasons – sorry, the giving of reasons as an aspect of procedural fairness, in my submission, it emerges relevantly and sufficiently clearly from reading paragraph 20(h) together with the reasoning between paragraphs 31 and 37.

KEANE J:   Her Honour seems to proceed, in your submission, on an assumption that there is a disparity, that it can be presumed that there is a disparity.

MS CAHILL:   I am sorry; the line was just cracking up.

KEANE J:   Is it your submission that her Honour’s reasoning proceeds on the basis that it is to be assumed or presumed that there is a disparity between the two sets of reasons, a material disparity?

MS CAHILL:   No, your Honour.  A reading of her reasons I think fairly leads to the point that she could not be satisfied that there was not a material disparity and that was her relevant concern.

KEANE J:   How did that concern arise in the case?  Was it argued that the reasons that were given in writing were different from the reasons that were given orally?

MS CAHILL:   I think this best emerges, your Honour, from the analysis in her Honour’s reasons at paragraphs 17 through to 23, that is at application book 54 through to 56 and in particular at paragraph 20.

KEANE J:   The highest that rises is the expression of agnosticism in 20(h) that there is no way to compare, so there is not a comparison.

MS CAHILL:   Yes, but that ‑ ‑ ‑

KEANE J:   You seem to be arguing that it can be presumed or that her Honour was entitled to presume and did presume that they were different.

MS CAHILL:   I do not go so far as that, your Honour.  I go to the point that is made by her Honour at 49 as a reflection of what her attitude and posture was to the issue surrounding the oral and written reasons.  Her Honour says there at about line 5, I think it is:

As I have noted, there is no way for this Court to know if the two sets of reasons were the same.

Now, it is that conclusion that animates her decision to remit on the basis that she is unable to conclude whether or not the decision below was correct and that, we say, is quite revealing in terms of her approach to deciding whether or not to allow the appeal.

Your Honours, in relation to the second question that is posed for special leave, in terms of the particular manner in which or the timing in which the reasons are to be delivered, it is a relatively uncontroversial proposition to say that if there is a requirement to give reasons then they must be given at least within a time that allows them to be addressed in the context of an appeal, but notably her Honour was not prescriptive about the format in which reasons are to be disclosed to a party, as is evident from reasons 33 at application book 59, where her Honour essentially says what is required – this is right at the bottom of the page:

Those reasons must be provided in a form that is, or is capable of being, intelligible to them.

She goes over the page to expressly contemplate that:

The interpretation of oral and contemporaneous reasons is likely to suffice.

At reasons 41 at the bottom of application book 61, she identifies a number of ways in which reasons can be sufficiently or adequately provided, so there is not even a requirement for original reasons, it is just as long as they are sufficiently communicated and brought to the attention of a party.

In terms of the Minister’s argument that a delay in providing reasons…..appeal or lodge an appeal can be rehabilitated in all circumstances, we say, with respect, goes too far.  That may be the case on occasion but we could never assume that it could be invariably so.  It is the fact that a party’s appeal rights are compromised by the absence of reasons before the appeal period as expired.  And the simple reason for that is that a party is then obliged either to seek leave to appeal out of time or to amend grounds, and whether they are entitled to do so or not lies in the discretion of the court, and were it otherwise the party would have the right to do that itself, the discretion would lie with the party rather than the court.

One can readily envisage circumstances in which the late delivery of reasons leads to an application for leave to file out of time or to amend grounds, and there are fine issues of consideration in the exercise of the discretion as to whether or not ‑ ‑ ‑ 

KEANE J:   But here no such prejudice inured to your client.  Here none of those problems actually occurred?

MS CAHILL:   I accept that, your Honour, I am speaking at a level of principle to address my friend’s claim.

KEANE J:   Well, if you are speaking at a level of principle, divorced from the actual circumstances of the case and the effect on your client and his rights in the circumstances of the case, we are talking about a principle that seems to be about ensuring that the litigation experience of a party is optimal rather than ensuring that his actual rights are not compromised.

MS CAHILL:   Well, I would put it differently, with respect, your Honour, and I hope I am not simply rehearsing the submission that I just made to your Honour.  But when reasons are delivered within time, then it lies entirely within the putative appellant’s…..to make decisions about whether they appear and so on what grounds.  That right is effectively removed by the late delivery of reasons ‑ ‑ ‑

EDELMAN J:   Or late delivery of reasons in a form in which the applicant can then have translated.

MS CAHILL:   Indeed, but yes, your Honour, precisely.  But once we are in that realm we are then in the position where it lies not with the party to determine if and how they appeal but that is in the realm of the court.  That loss or that compromise of the party’s rights, we say, is a relevant consideration that her Honour accurately identified in terms of procedural fairness.  If it please the Court, those are my submissions.

KEANE J:   Thanks, Ms Cahill.  Mr Kennett, anything in reply?

MR KENNETT:   Your Honours, in relation to Justice Mortimer’s treatment of the substance of the case, her Honour says at page 52, paragraph 9 what she has done.  She has:

considered the Federal Circuit Court’s reasons, and those of the Tribunal, at a level broader than the express grounds of appeal, in order to ensure there is no obvious jurisdictional error attending the Tribunal’s decision, and which the Federal Circuit Court failed to identify.

Then she goes through it in more detail at paragraph 43 and following.

KEANE J:   Mr Kennett, could you speak up a bit, please?

MR KENNETT:   I am sorry, your Honour, when I look down I am not – she goes through it in more detail in paragraph 43 and following, pages 62 and 63 of the application book.  Paragraph 43 speaks of “the approach taken by the Federal Circuit Court”.  It does not specify that that is on any particular understanding about the reasons.  But perhaps, more importantly, paragraph 45 speaks of “any jurisdictional error in the Tribunal’s approach”.  Paragraph 46 goes to:

two aspects of the Tribunal’s reasoning, which were considered by the Federal Circuit Court, which should be more closely examined.

Then in the succeeding paragraphs her Honour expresses her own conclusions about those.  So the point in effect that her Honour was seemingly comfortable to decide…..about the substance, or to express views about the substance, is not qualified we would say by any reticence arising from whether the reasons of the Circuit Court were in some way extreme reasons or not.  To turn to that matter, it is far from uncommon for courts to give decisions without any reasons and to supply the reasons later.  That happened to me last week.  Normally it does not take two months.  But one would not expect or theorise that when that occurs the reasons are fully formed in the judge’s mind and it only needs the time to dictate them.

EDELMAN J:   Well, there is also the related question of the extent to which the judge knows or understands the particular applicant’s ability to appreciate English.

MR KENNETT:   Yes, there may be that, but the point that I am seeking to get to is that it is far from unusual or concerning for courts to revise or perhaps even refine reasons after a decision is given, and the reasons for the decision are and should be taken to be reasons that the court publishes in a formal way and signs up to.  So there is really no issue, we would say.  Her Honour, as your Honour Justice Keane points out, does not express a view one way or the other as to whether there might be a divergence between the two sets of reasons, and if that divergence were to be a ground of appeal, then it would have to be established as such.  But even if there is some degree of divergence between the initial oral reasons and the later written ones, the reasons of the court that matter are the reasons that it signs up to in a formal way and puts on its website, and those are the reasons which the applicant eventually had, and which her Honour had, if the Court pleases.

KEANE J:   Thanks, Mr Kennett.

There will be a grant of special leave in this case.  Ms Cahill, you may need to consider whether a notice of contention is required against the possibility that your submission that the final sentences of paragraph 49 of her Honour’s reasons are part of the dispositive reasoning is not accepted.  So then the Court’s order is, subject to the Minister’s undertaking to pay the reasonable costs of the first respondent in this Court, there will be a grant of special leave to appeal.

Mr Kennett, how long will the hearing occupy?

MR KENNETT:   I should think this is another half‑day case, your Honour.

KEANE J:   Ms Cahill, what do you think?

MS CAHILL:   Yes, I think so, your Honour.

KEANE J:   Very well.  Thank you, those will be the orders of the Court.  The Court will now adjourn.

AT 1.17 PM THE MATTER WAS CONCLUDED