FEDERAL COURT OF AUSTRALIA MZAFS v Minister for Immigration and Border Protection [2016] FCA 75 Appeal from: MZAFS & Ors v Minister for Immigration & Anor [2015] FCCA 2881 File number: VID 786 of 2015 Judge: EDELMAN J Date of judgment: 10 February 2016 Catchwords: MIGRATION – failure to consider written submissions – concession by Minister of lack of procedural fairness – whether written submissions could have made any difference – appeal allowed Legislation: Migration Act 1958 (Cth) Cases cited: Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541 Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 90 ALJR 25 NAFF v Minister for Immigration [2004] HCA 62; (2004) 221 CLR 1 NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 220 FCR 44 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Weiss v R [2005] HCA 81; (2005) 224 CLR 300 Date of hearing: Heard on the papers Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the Appellants: The Appellants were unrepresented Solicitor for the First Respondent: Mr M Priest of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS VID 786 of 2015 BETWEEN: MZAFS First Appellant MZAFT Second Appellant MZAFU Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: EDELMAN J DATE OF ORDER: 10 FEBRUARY 2016 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made by the primary Judge on 6 November 2015, including as to costs, be set aside. 3. The matter be remitted to the Federal Circuit Court of Australia, differently constituted, for determination of the claims for relief in the Application filed in that Court on 11 June 2014. 4. The first respondent pay the appellant's costs of these proceedings as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT EDELMAN J: 1 This appeal was listed to be heard today. It concerns an appeal to this Court from a decision of the Federal Circuit Court. The Federal Circuit Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal). The Tribunal had dismissed the appellants' application for review of a decision of a delegate of the Minister which refused the first appellant, and the two members of his family, Protection (Class XA) visas. 2 Two days ago, the parties emailed proposed consent orders to my associate. The parties proposed that the appeal be allowed and consequential orders made including remitting the matter to the Federal Circuit Court. A solicitor for the respondent (the Minister), Mr Priest, has provided detailed submissions explaining the basis for the Minister's concession that the appeal should be allowed. The concession made by the Minister is correct. In the absence of any controversy, I will explain briefly my reasons for accepting the concession. 3 The hearing before the Federal Circuit Court took place on 25 August 2015. At the hearing, counsel for the Minister told the Court that he was content to rely on his written submissions. But, in circumstances where some of the grounds of appeal were concerned with details about the manner of the hearing, including allegations of ostensible bias, the Federal Circuit Court prudently ordered a transcript of the Tribunal hearing. The parties were given 21 days from the receipt of the transcript to present any written submissions. 4 On 9 September 2015, the Minister filed an affidavit attaching a transcript of the three hearings before the Tribunal. 5 On 28 September 2015, the appellants filed an affidavit containing a "supplementary statement" by the first appellant. The English translation of that statement is three tightly spaced pages which are, in effect, submissions. The submissions focus in detail upon the conduct of the hearing by the Tribunal. 6 On 6 November 2015, the Federal Circuit Court delivered its decision. The Judge said in his decision, at [14], that "[n]o written submissions, or other communication, have been received from the applicant". It is clear that although the written submissions from the first appellant were filed they were inadvertently not seen by the Judge. 7 The Judge dismissed the appellants' judicial review application. In doing so, his Honour relied heavily upon a number of matters, which he described as "interesting points", arising from the transcript. His reasons focused very heavily upon the transcript without the benefit of the written submissions by the appellants despite his Honour's implicit statement of his intention to consider them. Although inadvertent, this was a denial of procedural fairness. As Gageler and Gordon JJ said in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 90 ALJR 25, 35 [47] quoting from Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, 9 [25]: There are undoubtedly circumstances in which the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision. 8 A comparison can be drawn with NAFF v Minister for Immigration [2004] HCA 62; (2004) 221 CLR 1. In that case, at the conclusion of the hearing before the Refugee Review Tribunal, the Tribunal told the applicant that it would write to the applicant in relation to inconsistencies in his evidence and that he would have additional time to respond to questions raised by the Tribunal and to put before the Tribunal any additional information. The Tribunal never wrote to the applicant. The Tribunal published its reasons dismissing the application without obtaining any further material from the applicant. The High Court held that there had been a denial of procedural fairness. The Tribunal's decision was quashed with mandamus issued directing that the issue be determined according to law. 9 The solicitors for the Minister in this case did not submit that despite the absence of procedural fairness the appeal should be dismissed on the basis that the denial of procedural fairness would not have made any difference. In Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145, Mason CJ, Wilson, Brennan, Deane and Dawson JJ said that "an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility". 10 It is not necessary to consider whether that principle could even fall to be considered in a case like this. In criminal law, a similar proviso does not apply where there has been a "significant denial of procedural fairness at trial": Weiss v R [2005] HCA 81; (2005) 224 CLR 300, 317 [45]. Similarly, in Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541, 558 [95] the Full Court said in relation to Stead's case: It is one thing to say that an applicant who claims to have been denied a "legitimate expectation", or asserts that the Tribunal misled him, must prove that he suffered "practical injustice". In such cases, the applicant is required to demonstrate that what occurred actually affected the outcome. It is altogether another thing to suggest that an applicant, whose case has been considered by a Tribunal that has before it material of an adverse kind, without informing the applicant of that fact, is not entitled to relief unless he can show that there was something useful that he could have said to rebut that material. That is simply not our understanding of the law. See also NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; (2014) 220 FCR 44, 46-47 [4]-[5] (Allsop CJ and Katzmann J); Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482, 505-506 [108] (the Court). 11 The reason why it is not necessary to consider whether a significant denial of procedural fairness could ever engage the Stead principle is because, as the solicitors for the Minister properly accepted, this is not a case where the result would inevitably have been the same. 12 In NAFF, the High Court also considered whether the opportunity that the applicant lost "could not have possibly have produced a different result" (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141). Justices McHugh, Gummow, Callinan and Heydon said at 15 [43]: The Tribunal member at one important stage had the impression that there might be a benefit for the appellant in the review as a whole in having a further opportunity to answer her questions in writing on the subject of detention; she never explained why that impression was wrong or whether it had changed; it is thus a likely inference that the impression was sound. Hence the appellant's deprivation by the Tribunal member of that opportunity is a breach of procedural fairness going to jurisdiction. 13 In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, the High Court again declined to apply the Stead principle. Chief Justice Gleeson said at 89 [4]: It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal's ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. 14 Similarly, in this case, the reason why the solicitors for the Minister were correct in their submission that this was not a case where the result would inevitably have been the same is because the appellants' submissions concerned matters involving evaluative judgment and overall impression. Their submissions could have affected the Court's reasoning or conclusion. 15 For these reasons, I consider that the orders proposed by the parties should be made. I order that: (1) The appeal be allowed. (2) The orders made by the primary Judge on 6 November 2015, including as to costs, be set aside. (3) The matter be remitted to the Federal Circuit Court of Australia, differently constituted, for determination of the claims for relief in the Application filed in that Court on 11 June 2014. (4) The first respondent pay the appellant's costs of these proceedings as agreed, or assessed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman. Associate: Dated: 10 February 2016