Whether Federal Court erred in holding the failure of Circuit Court to have ex tempore reasons for judgment translated resulted in denial of procedural fairness.

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 (4 March 2021)

Intro:-

This is an appeal against the decision of the Federal Court whereby her Honour considered that the failure by the primary judge to have his oral reasons for judgment translated for the benefit of the first respondent constituted a denial of procedural fairness, and that undoing this denial required the setting aside of the judgment of the Federal Circuit Court.

Facts:-

The first respondent is a citizen of Pakistan who, in 2014, applied for a Protection (Class XA) visa after his application for a Student (subclass TU-572) visa was refused. His protection visa application was rejected in 2015 by a delegate of the appellant Minister. In 2016, the Administrative Appeals Tribunal ("the Tribunal") affirmed the delegate's decision. The first respondent sought judicial review of that decision in the Federal Circuit Court of Australia. The first respondent was not represented before the Federal Circuit Court, but had asked for, and obtained, the assistance of an interpreter because, inferentially, he does not speak English.

The primary judge dismissed the application and delivered an ex tempore judgment. Whilst the Federal Circuit Court's orders were translated for the benefit of the first respondent, the oral reasons for judgment were not. The first respondent appealed from that judgment to the Federal Court of Australia. The primary judge delivered written reasons for judgment after the first respondent filed his notice of appeal in the Federal Court.

On appeal in the Federal Court, the first respondent was again unrepresented. For that reason, Mortimer J, exercising the Federal Court's appellate jurisdiction as a single judge, reviewed the reasons of the Tribunal and of the Federal Circuit Court "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. At a general level, Mortimer J concluded that the written reasons of the Tribunal and the primary judge did not disclose "any possible error deserving of close consideration" by the Federal Court, and that there was otherwise no error affecting the Tribunal's decision.

Nonetheless, Mortimer J allowed the appeal, set aside the orders made by the Federal Circuit Court and remitted the matter to that Court to be reheard by a different judge. Mortimer J so decided because her Honour considered that the failure by the primary judge to have his oral reasons for judgment translated for the benefit of the first respondent constituted a denial of procedural fairness, and that undoing this denial required the setting aside of the judgment of the Federal Circuit Court.

Issue:-

This appeal is not concerned with whether an unrepresented litigant, who does not understand English, is always entitled to have oral, or written, reasons for judgment translated for her or his benefit. The first respondent made no such general claim.

The first respondent's complaint was directed at the more narrow proposition that, in his precise circumstances, procedural fairness for the purposes of considering, and then exercising, his appeal rights required the primary judge's ex tempore reasons to be translated or written reasons to have been provided more promptly.

Analysis:-

The first respondent made no attempt to obtain a transcript of the ex tempore reasons for judgment. Nor did he make any such attempt after filing the notice of appeal.

In addition, the first respondent never sought to amend his grounds of appeal to take account of the published reasons of the Federal Circuit Court.

Underlying the Federal Court's decision, and the first respondent's submissions in this Court, was a conception of procedural fairness that exceeds the range of matters with which that concept is concerned. In this case, as the Minister rightly submitted, the final instance of any right or entitlement of either party arising from the primary judge's obligation to afford procedural fairness occurred at the time the parties made their concluding submissions. Thereafter, the trial having finished, procedural fairness had no role to play in respect of the matters the subject of the primary judge's decision. As a matter of general fairness, rather than independent legal duty, the first respondent ought to have had the benefit of translated ex tempore reasons or written reasons at an earlier time. But to the extent that the practical manifestations of the first respondent's entitlement to be accorded procedural fairness were diminished as a result of the primary judge's failure to translate his ex tempore reasons or to produce written reasons timeously, any consequent practical unfairness[36] to the first respondent could only logically arise in the conduct of the first respondent's appeal to the Federal Court.

The failure in the present case to interpret the primary judge's ex tempore reasons was, in a general sense, unfair. So much may be accepted. However, with respect, rather than setting aside the decision of the primary judge, in the circumstances here, Mortimer J could have:

(1) adjourned the hearing of the appeal so that the transcript of the ex tempore reasons could be obtained; or

(2) invited the first respondent to amend his appeal grounds to address the contents of the published reasons, and, if necessary, adjourned the hearing of the appeal to permit this to take place.

Either or both courses of action (depending on the needs of the first respondent) would have supplied the practical justice or fairness needed given the first respondent's inability to understand the ex tempore reasons delivered by the primary judge. Setting aside the orders of the primary judge, however, and remitting the matter to be reheard went beyond that which was necessary to provide practical justice.

It follows that the first respondent was not deprived of the opportunity to formulate his argument on appeal because of the fact that the primary judge's ex tempore reasons were not translated, nor was he denied the opportunity to investigate any difference in substance between those reasons and the published reasons. The first respondent never demonstrated that the ex tempore reasons were, on the facts here, the operative reasons of the Federal Circuit Court.

The Federal Court found that the primary judge's published reasons contained no error. More emphatically, the Federal Court also reviewed the reasons of the Tribunal for error and found none. .

Conclusion:-

The appeal should be allowed. The grounds of the notice of contention are rejected.