Bahar v Minister for Immigration and Multicultural Affairs

[1999] FCA 1445

FEDERAL COURT OF AUSTRALIA

Bahar v Minister for Immigration & Multicultural Affairs [1999] FCA 1445

OMAR BAHAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 699 of 1999

LINDGREN J
18 OCTOBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N  699 OF 1999

BETWEEN:	OMAR BAHAR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	LINDGREN J
DATE OF ORDER:	18 OCTOBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        Order made on 21 September 1999 cease to operate.

2.        Either party be at liberty to enter orders 1 and 2 made on 3 September 1999.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N  699 OF 1999

BETWEEN:	OMAR BAHAR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	LINDGREN J
DATE:	18 OCTOBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

1. On 3 September 1999 I ordered that (1) the application be dismissed, (2) the applicant pay the respondent’s costs, and (3) those two orders not be entered prior to 20 September 1999.  I will take my Reasons for Judgment of that date as read.  In circumstances to which I will later refer, on 21 September the Duty Judge ordered that orders 1 and 2 not be entered until further order. 

2. The Court received from a Mr Bykowski of 1/92 Kirkwood Street, Seaforth, New South Wales, a submission on behalf of the applicant and an affidavit of the applicant affirmed on 17 September 1999.  The affidavit seeks to canvas afresh the facts of the case.  I have taken it into account only in so far as it makes submissions and I uphold the objection of the respondent to the receipt of it as evidence.  The Court received a submission in reply from counsel for the respondent by facsimile dated 1 October 1999 and in original form on 5 October 1999.  I made a direction allowing the applicant to hand up a submission on the hearing today in response to the respondent’s submission. With the consent of the applicant, who is in Court aided by an interpreter, I granted leave to Mr Bykowski to appear for the applicant today in circumstances which will later appear.  Mr Bykowski has handed up a submission in reply on behalf of the applicant.  I have read all the submissions that have been made.

3. However I regard the matter, what the applicant seeks to do is to re-argue the factual case which was before the Tribunal. It is only at the end of the applicant’s submissions that any attempt is made to address the grounds on which the Court is permitted to interfere with a decision of the Tribunal, that is, the grounds identified in s 476 of the Migration Act 1958 (Cth) (“the Act”). Through Mr Bykowski, the applicant submits that the Tribunal’s decision was an improper exercise of power because the Tribunal took into account an irrelevant consideration and failed to take into account a relevant consideration. He submits that the Tribunal reached a decision which was not justified by the evidence or any other material. Finally, he submits that the Tribunal’s exercise of power was so unreasonable that no reasonable person could have so exercised the power. But as counsel for the respondent submits, the first, second and fourth of these grounds are not permitted to the Court: see s 476 (3)(d) and (e) and s 476(2)(b) of the Act.

4. The “lack of evidence” ground is also clearly not supportable. That ground is the one referred to in s 476(1)(g):

   “that there was no evidence or other material to justify the making of the decision.”

5. But s 476(4) provides that this ground is not to be taken to have been made out unless either para (a) or (b) of s 476(4) is satisfied. Mr Bykowski relies in his submission today on para (b), that is, that the Tribunal based its decision on the existence of a particular fact which did not exist. Although it is not clear from the written submission, the submission surely refers to the view formed by the Tribunal on the issue of completion of military service. But this was a matter on which the Tribunal formed its view of the evidence as it was entitled to do and in substance the submission is that the Tribunal should have come to a different conclusion on the factual matter. There were other issues of credibility as well on which the Tribunal based its decision adverse to the applicant.

6. In my opinion, the case is one in which none of the limited grounds allowed by s 476 are made out. Accordingly, I will order that the order of 21 September cease to operate and that the parties be at liberty to enter orders 1 and 2 made on 3 September 1999.

7. I turn now to a different matter.  The application which commenced this proceeding was filed on 14 July 1999.  At the first directions hearing on 4 August, the applicant, who was in detention at the Silverwater Metropolitan Reception and Remand Centre, appeared aided by an interpreter.  I made directions and fixed the proceeding for hearing on Tuesday 31 August from 9.15 am to 10.15 am.  The matter was fixed out of ordinary court hours and on an earlier hearing date than would ordinarily have been possible because the applicant was in detention and because I was due to go on leave.  In the ordinary course, the proceeding would have been fixed for hearing on a later date. 

8. On the hearing on 31 August, the applicant appeared, again aided by an interpreter, and applied for an adjournment in order to obtain legal assistance.  He handed up a piece of paper which read:

   “Mr Omar Bahar seeks to vacate the hearing date of 31 August 99 as he is still waiting [sic] determination from the Pro Bono Scheme re his application for legal assistance.”

9. In response, counsel who appeared for the Minister informed me that his instructing solicitor had ascertained the preceding afternoon from the person administering the pro bono scheme that pro bono assistance had been declined.  It seemed to me unfortunate that the applicant should find this out for the first time on the hearing and through the legal representative for the other side.  For that reason I thought that he should be given some further opportunity of obtaining legal assistance. 

10. On the other hand, the matter had been fixed for hearing since 4 August, the respondent’s legal representatives were present and ready to proceed and any order that the applicant pay costs thrown away by an adjournment would be of no practical utility.  I stated that I would proceed with the hearing and would publish reasons and if I should come to the view that the application should be dismissed, I would make such an order but direct that it not be entered for fourteen days to enable the applicant to seek to obtain legal representation with a view to submissions being made on his behalf.  I stood over the proceeding until 3 September for judgment.  On that day I made the three orders mentioned at the beginning of these Reasons. 

11. On Friday, 17 September, Mr Bykowski, telephoned my Associate to say that he was representing the applicant.  My Associate took steps to record in the papers that this fact was relevant to order (3) of 3 September.

12. My Associate received a faxed submission purporting to come from a firm of solicitors called Rose & Co on 17 September.  A copy of the letter is annexed to these Reasons for Judgment.  It speaks for itself. 

13. On 21 and 22 September my Associate telephoned the firm, Rose & Co, and was informed that that firm had no knowledge whatever of this matter.  On 21 September the Duty Judge ordered that orders 1 and 2 not be entered until further order of the Court.  Next, my Associate received a letter dated 22 September 1999 from Michael J Rose, solicitor, a copy of which is also annexed to these Reasons for Judgment. 

14. My Associate was in contact with me when I was on leave and I made directions for the filing of submissions and for the proceeding to be listed for judgment today.  She advised Mr Bahar and Mr Bykowski, as well, of course, as the Australian Government Solicitor, who was representing the respondent, of these directions.  Submissions were received as recounted earlier.

15. Mr Bykowski has said to me that he does not have an unqualified practising certificate to appear as a solicitor.  It was for this reason that I granted him leave to make submissions on behalf of Mr Bahar on the hearing today, upon his undertaking not to charge for services rendered (he emphasised that he had always been acting “pro bono”).  I understand that he has a qualified practising certificate and may undertake work only subject to supervision by a solicitor who holds a practising certificate not so qualified.  He has said to me today that he thought that he had a permission from Mr Rose to act and had found out only as a result of this present proceeding that a consent which Mr Rose had given earlier this year had been withdrawn. 

16. I do not propose to inquire further into this matter.  A serious question is raised and further inquiry is called for.  I will refer these Reasons and those of 3 September to the Law Society.  Mr Bykowski and Mr Rose will no doubt give more detailed accounts of what has happened to the Law Society.

17. For the reasons which I gave earlier I order that the order of 21 September 1999 cease to operate and that either party be at liberty to enter orders 1 and 2 made on 3 September 1999.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             20 October 1999

Agent for the Applicant: (pursuant to leave)	Mr J Bykowski
Solicitor for the Respondent:	Ms E Warner of the Australian Government Solicitor’s Office
Date of Hearing:	18 October 1999
Date of Judgment:	18 October 1999