Background
The High Court’s recent decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 concerned issues of procedural fairness in the delivery of reasons for judgment in Federal Circuit Court proceedings in the migration law context.
The first respondent, a citizen of Pakistan, was refused a Protection (Class XA) visa by a delegate of the appellant Minister. On review by the Administrative Appeals Tribunal, the delegate’s decision was affirmed. The first respondent sought judicial review of that decision in the Federal Circuit Court. The first respondent was not legally represented in those proceedings but was assisted by an interpreter. The primary judge dismissed the application for judicial review and delivered an ex tempore judgment. The orders of the Federal Circuit Court were translated for the first respondent but the oral reasons for judgment were not. The first respondent appealed from that judgment to the Federal Court of Australia.
The Federal Court allowed the appeal, set aside the orders made by the Federal Circuit Court and remitted the matter to be heard by a different judge on the basis 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.
In so deciding, the Federal Court considered that the pronouncement of ex tempore reasons to a non-English-speaking self-represented litigant, without translation and which were not followed by written reasons as soon as practicable after the orders were announced (the written reasons were provided after the notice of appeal was filed) amounted to a denial of procedural fairness.
The appellant’s primary argument
The appellant submitted that the obligation to afford procedural fairness is directed to the applicable process before a relevant decision is made, not after. The critical question is whether the denial of procedural fairness deprived an interested party of the possibility of a successful outcome. It followed that the task of delivering reasons for relief could never produce an affirmative answer to that question ([14]). The loss of opportunity to succeed was limited to the opportunity before the primary judge, not on appeal ([16]).
The appellant also argued that remittal was not an appropriate order because the outcome of the proceedings before the Federal Circuit Court was inevitable ([16]).
The respondent’s primary argument
The first respondent submitted that sufficient access to reasons for judgment is integral to the determination of whether to appeal, whether to respond to appeal and, in either case, to have a fair opportunity to advance one’s case. The failure of the primary judge’s reasons for judgment to be translated impaired the first respondent’s ability to pursue his rights ([18]).
The majority judges
The Full Court of the High Court was constituted by five justices. Steward J, with whom Kiefel CJ, Keane, Gordon, Edelman JJ agreed, allowed the appeal.
At [22], Steward J agreed with the appellant’s submission and found that ‘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, procedural fairness had no role to play in respect of the matters the subject of the primary judge’s decision ([22]).
At [26] to [31], Steward J addressed the requirement for reasons for judgment in the Federal Circuit Court and at [32] to [38], addressed the various ways court processes can be used to avoid practical injustice for litigants in the position of the first respondent.
Steward J recognised that the failure to interpret the primary judge’s ex tempore reasons was, in a general sense, unfair but, setting aside the Federal Circuit Court’s decision was not the only course open to the Federal Court on appeal and went beyond what was required to provide the first respondent with practical justice ([40]–[41]).
Procedural fairness and practical justice
The wider importance of this decision is its affirmation that to constitute a basis for setting aside a decision for lack of procedural fairness there must be a “practical injustice” that could have materially affected the decision. The body of Steward J’s reasons allowing the appeal were headed “Procedural fairness and practical justice”, clearly marking this as the core issue.
In emphasising the importance of “practical unfairness” and “practical justice”, his Honour referred to the Court’s earlier decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 13-14 [37] per Gleeson CJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at 443 [38] per Bell, Gageler and Keane JJ.
Gleeson CJ said in Lam at [37]:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
Given the myriad of ways questions about procedural fairness can arise, a lawyer considering whether there has been a lack of procedural fairness should ask: “has there been a practical injustice that could have materially affected the decision?”
Similarly, courts and tribunals should always seek to afford litigants practical justice.
Disposition
In the result, the appeal was allowed. It was further ordered that the appeal to the Federal Court be dismissed.
Kate Slack and Chris McGrath
Higgins Chambers
8 March 2021