Bizuneh v Minister for Immigration

[2000] HCATrans 389

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S26 of 2000

B e t w e e n -

TAFESE ESHETU BIZUNEH

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 SEPTEMBER 2000, AT 11.55 AM

Copyright in the High Court of Australia

MR T.E. BIZUNEH appeared in person.

MR R.T. BEECH‑JONES:   If the Court pleases, I appear for the respondent.  (instructed by the Australian Government Solicitor)

GAUDRON J:   Yes, thank you, Mr Bizuneh.

MR BIZUNEH:   Your Honours, this is an application for special leave to appeal from the Full Court of Federal Court made on 17 February 2000 by the Full Court of Federal Court honourable judges Burchett, Carr and R D Nicholson.  I am unrepresented applicant. When I filed this application for this special leave I was in Villawood Detention Centre.

GAUDRON J:   I think you might need to speak up, if you do not mind, and perhaps a little more slowly.

MR BIZUNEH:   I am unrepresented applicant.  When I filed the application for this special leave I was in Villawood Detention Centre and after spending six months in the high security gaol I was released on 19 April 2000.  Basically I am a refugee applicant under which Australia has protection obligation.  Your Honours,…..since I lodge my application for protection visa in August 1997 I did not get original judgment order fair go for my application at different level of the Immigration Board…..

The problem started from the foundation, that is from DIMA.  The DIMA delegate made the decision for my claim in the absence of my statement; that means in a blank document.  In RRT they arrived at decision as I have stated in my summary of argument page 71 starting from paragraph 7) i to xiv.  I already explained problem with the RRT decision.  Unless there is Australian definition for “refugee”, if it were according to the United Nations Convention definition for “refugee”, I should not have spent more than three years of life of uncertainty, including six months of detention, where I have been handcuffed and tried for…..in front of Full Federal Court.

Judicial review is a part of the process for determination of refugee status, but I did not have a chance to – my case to be reviewed, not to have a judicial review as a result of my genuine and serious mistake.  As stated in application book 81 line number 20, when I signed the consent order the Australian Government Solicitor Ms Angela Nanson entirely knew that I was doing a serious mistake and instead of preparing and drafting that consent order, the decision should have been left for the honourable judge Tamberlin.

GAUDRON J:   Yes, but you did agree to the consent order.  You were in court when it was made?

MR BIZUNEH:   I beg your pardon?

GAUDRON J:   You signed the consent order?

MR BIZUNEH:   Yes, I signed the consent order, but before signing the consent order I sent a letter for honourable Tamberlin J, including the difficulties of me making a lot of attachments, because I went to the Australian Government Solicitor.  I did not want to sign a consent order.  I went there just to serve a notice of discontinuance because the hearing date was approaching, so I was scared because ‑ ‑ ‑

GAUDRON J:   Now, but if you were going to discontinue, it was going to bring about the same result.

MR BIZUNEH:   I do not have any – but I was entirely depend on the letter to honourable Tamberlin J.  That is why I write a letter.  I write a letter that is why, otherwise if I knew – if I did not just – if I want to discontinue my case why I wrote – I wrote a letter to honourable Tamberlin J and I repeatedly – I was inquiring the associate to honourable Tamberlin J.  Even when I signed my consent order, I made a telephone call two, three times before signing.  Before signing the consent order I made three, four times a telephone call from Australian Government Solicitor reception desk to the associate, Ms Jennifer Vytopil.  I mean, that is why I was confused.  Can I continue?  Continue?

GAUDRON J:   Yes, continue, please, yes.

MR BIZUNEH:   So the consent orders should have to be an order ‑ preparing the consent order Ms Nanson should have to leave that decision for the court because the judgment of Blackburn v Smith and Haggis? provided support for the proposition that a contract is void if one party to the contract enters into it under a serious mistake as to the content or existence of a fundamental term and the other party had a knowledge of that mistake because when I was signing that consent order Ms Nanson, she know that means I was going to be detained.  So in addition to my letter to honourable Tamberlin, so she should have to leave the decision for the court, that is all.

The affidavit – there was also affidavits in front of the Full Court of Federal Court.  In that affidavit this honorary should have to be – should have to make it invalid because it has got wrong information.  As I swore on my affidavit, 5 September 2000, I swore – because one of the suggested legal agencies never do a Federal Court case, but it was mentioned in page 51 – page 53 of the application book – my application book, because Refugee Advice and Case Work Service never do, because they are listening but it is difficult to get practical assistance.  The other thing, the affidavit in front of the Full Court of Federal Court where the entire judgment is based, it did not contain all the situation surrounding the signing of the consent order.

GAUDRON J:   Yes.  Well, we cannot take anything into account other than what was before the Full Court.

MR BIZUNEH:   Because that, your Honour – because that concern that affidavit.  It is not – at that time I was not – I was not – I did not have a chance to explain all this situation.  That is my problem.

KIRBY J:   Yes, but you must understand that the court system would grind to a halt if orders that were made and judgments that are entered are all being undone.  The Full Court had before it an affidavit by Ms Nanson, who said that she explained things to you.  She suggested that you should go to the New South Wales Bar Association and you said you did not want to.  She confirmed that you wanted to discontinue your application and she swore that she drafted the consent order, she explained it to you, and you subsequently signed it.  So that, I mean, the legal system of Australia would be in chaos if one had to undo all consent orders and judgments that had gone through that process of explanation.

MR BIZUNEH:   Your Honours, because you see the Australian Government Solicitor is my opponent.  How can I take the advice from my opponent?  If I – if someone killed someone or if someone – that advice is not genuine advice.  In addition, they claimed will not allow them to give me advice, the Immigration.  Their objective is to win their case, not to lose.  So that is why they are using different technique.  In the paper it may say, you know, that they are giving some, but practically their objective is to win their case and they claim also again they never allow them to give me advice.

GAUDRON J:   It is not so much a question of advice as knowledge, I think, Mr Bizuneh, and you were told about the courses open to you and you were told what would be the consequences of signing it.

MR BIZUNEH:   Your Honour, that is the main problem of that – that when I write the letter to honourable Tamberlin J I have attached all this.  I have been in Law Society, this one.  I have been ‑ ‑ ‑

GAUDRON J:   What page is it in the – is it in ‑ ‑ ‑

MR BIZUNEH:   This is in…..because they do not want to include in the application ‑ ‑ ‑

MR BEECH‑JONES:   Page 27, your Honour.

GAUDRON J:   Thank you.  Page 27.  Yes.

MR BIZUNEH:   Page 27, but the attachment was not there because they never include the attachments because it was – it is giving a lot of information, how I tried at different legal agencies.

GAUDRON J:   Yes, but you say, “I dropped the matter.”

MR BIZUNEH:   Because of the above difficulties.

GAUDRON J:   Yes.  Well, whatever the reasons, you dropped the matter.

MR BIZUNEH:   Yes, the ‑ ‑ ‑

KIRBY J:   And you are merely using the opportunity to inform the judge so that – to thank him and to give him an idea of the difficulties that you experienced in the court.  Judges in this country do not act on letters.  I mean, you would resent it if the Minister wrote us a letter.  We do not act on that.  You have to deal in open court.  This is the nature of our legal process.  In any case, the letter, as Justice Gaudron has pointed out, says that you dropped the matter.

MR BIZUNEH:   Your Honours, it is my first time.  I am not a legal professional.  Even ‑ ‑ ‑

KIRBY J:   Yes, but you are trained technician, nuclear medicine technician, and you are an intelligent man and you must know that if you drop a matter, you cannot just expect courts to start it up again.  It is not how courts of law operate in any country, I would think.

MR BIZUNEH:   Because – and, your Honours, I am repeating many time – I write a letter to honourable Tamberlin J because expecting – because I was not represented.  Even the consent order should have to be signed by – it says by counsel or by their representative.  That consent also was not signed – I signed by myself, but these law books, it says that the counsel or his representative should have to sign to be accepted, it says in the book also.  I was completely – I mentioned in my summary of argument ‑ I can read that?  Can I read it?

GAUDRON J:   Yes, certainly.

MR BIZUNEH:   It is in application book page number 80, line 14.

GAUDRON J:   What page, I am sorry?

MR BIZUNEH:   Page number 80.

GAUDRON J:   Page 8.

MR BEECH‑JONES:   I am sorry, 80 I think, your Honour.

MR BIZUNEH:   Page 80.

GAUDRON J:   Page 80, thank you.

MR BIZUNEH:   Yes:

In supplementing paragraph 12 of my Summary of Argument:  When the Consent Orders drawn up and I signed I was not represented by Counsel or Solicitor.  The Principal Solicitor, AGS, Ms Angela Nanson was acting as Solicitor on both sides.  [Please see Butterworth; Court Forms, Precedents and Pleadings; NSW; Volume I at 14,027 paragraph 2875 “…terms of settlements should be drawn up and signed by the Counsel or Solicitor for each party…”]

GAUDRON J:   Yes, but you signed the form.  You were your own lawyer.  You signed the form.  You were the party.

MR BIZUNEH:   But I was not represented and the other thing is – your Honours, the other thing – the other thing in page 81 paragraph 7, it says:

“When being asked to make a consent order the court must be satisfied that the appropriate consents have been given to the making of the order, it is not sufficient that there has been agreement to a compromise of litigation.

So in the presence of my letter, my letter to honourable J, I am not a legal practitioner.  Even I was asking the associate – I was inquiring.  So it is not straight – I did not – I did not only sign only consent order.  There is a lot of circumstances in - your Honours, please consider, it is odd situation.

GAUDRON J:   Yes, we understand that, but you have got to establish that there is error in the decision of the Full Federal Court, legal error.

MR BIZUNEH:   Yes.  In front of the Full Court – the other thing, in front of the Full Court, even starting from the preparation of the application, I am the applicant.  I am the applicant and this is application book.  This whole book is being prepared by the respondent.  Is it practical, your Honours?  If I am the applicant I should have to prepare myself.  That is why sometimes I find a lot of paper are missing, because ‑ ‑ ‑

KIRBY J:   Many applicants do not have the funds or resources to prepare these books.  The Court has to deal with the matter ‑ ‑ ‑

MR BIZUNEH:   Yes.

KIRBY J:   ‑ ‑ ‑ and if you wanted to supplement it or subtract from it, the Federal Court would hear you on it.  If it was left to many people, some – many, many people cannot even speak English who are in your situation, so that somebody has to get the papers together so that the court can decide the matter according to law.

MR BIZUNEH:   Your Honour, that is absolutely right, but my assumption – there should be someone neutral like Legal Aid or some other institution which is neutral should have to do this job because if it is – I know – I know you are – what you said is absolutely right.  I have no objection.  But at the same time as the Australian Government Solicitor, their objective is to win the case.  They are using their different techniques.  So it is a difficult situation.

The other thing, even when I was in detention centre, our movement – the detainee’s movement is controlled by Australian Government Solicitor.  It is not – it is different from the other criminal things, for example, people – prisoners who are in the prison.  Everything is – the Australian – my opponent, the respondent, has a lot of advantage.  They are – they are getting a lot of advantage.

The other thing – the other things, your Honours, when the Full Court of Federal Court make the decision, they said that – they mentioned – their Honours, they mentioned the Minister – I sent a letter to Minister, but, your Honours, the Minister did not make a decision on my request.  Some other officer made the decision.  It is not the Minister.  So it is ‑ ‑ ‑

KIRBY J:   The Minister has power to delegate under the Act.

MR BIZUNEH:   Your Honours, this one is – this section I think it is not delegable.  It is not delegable.  That is migration – this is a different section.  He has to exercise his powers himself, at least for the ‑ ‑ ‑

KIRBY J:   This is not a matter that was raised in the Full Federal Court.

MR BIZUNEH:   It is mentioned.  It is mentioned.

KIRBY J:   You cannot deal with – no, but in the judgment of the Full Federal Court.

MR BIZUNEH:   Yes, it is mentioned in ‑ ‑ ‑

KIRBY J:   Whereabouts?

MR BIZUNEH:   Page 61 paragraph No 23.  Excuse me, your Honour.

KIRBY J:   This is a reference to the Convention on Refugees, I think.  It is not ‑ ‑ ‑

MR BIZUNEH:   It is page No 60.

KIRBY J:   I am sorry?

MR BIZUNEH:   It is page No 60.

KIRBY J:   What paragraph?

MR BIZUNEH:   Paragraph No 19.  Can I read?

GAUDRON J:   Yes.

MR BIZUNEH:   Yes:

There are difficulties with each of these propositions.  What is characterized as a mistake is really no more than a tactical decision which failed to yield the desired result.  The applicant hoped that the Minister would exercise his power under s 417 of the Act, whereas, in the result, the Minister did not do so.  There was no mistake in the relevant sense.

Because, your Honours, even there was a confusion when I sent a letter for the opponent I have already stated in my summary of argument, I took it like refugee ‑ and as a level of application.  That is what – when I filed in the Full Court of Federal Court I sent at the same time for the Minister also.  So in addition to that the Minister did not exercise his power regarding to my application.

GAUDRON J:   Yes.  Well, the question still is whether there was error in the Full Federal Court, not whether the Minister exercised his powers.

MR BIZUNEH:   Your Honours, how can I take the advice from my opponent because the decision is based ‑ ‑ ‑

GAUDRON J:   We have heard you on that, Mr Bizuneh, and your time is now up, I am afraid, thank you.  Mr Beech‑Jones, Justice Kirby wishes to ask a question of you.

MR BEECH‑JONES:   Yes, your Honour.

KIRBY J:   I have two questions.  The first is to deal with that last point relating to the suggestion that an error of law has occurred here which was not addressed by the Full Court in relation to a non‑delegable duty of the Minister.

MR BEECH‑JONES:   Yes, your Honour.  The reason why there is not much before your Honour about it is that the application that was in the court before Justice Tamberlin was to review the Refugee Review Tribunal decision.  What Mr Bizuneh is referring to is a request that is commonly sent for the Minister to exercise what is called the non‑compellable power in section 417, which is, in effect, a power ‑ ‑ ‑

KIRBY J:   This is the residual mercy, is it?

MR BEECH‑JONES:   The residual – yes, your Honour, and it is in similar terms to the power to allow a second application, which I think your Honour discussed in Thiyagarajah.  We do not have a copy of the letter but if I could just take your Honour to page 58, paragraph 30.  The Full Court describes the letter that has been referred to and, if my recollection is correct, the Full Court did have a copy of the letter and the letter is described as the Department writing:

to the applicant to inform him that the Minister had decided not to consider exercising his discretion –

So that, in effect, the Department advised him that the Minister had decided not to consider and I think what Mr Bizuneh’s complaint is that the letter was not, in effect, signed by the Minister and that constitutes some improper delegation.  So that if I could answer your Honour’s question by saying, first ‑ ‑ ‑

KIRBY J:   I think we have had this problem before and I think the Court has said, or maybe I in a single Justice matter, that one could infer from that letter that the matter had been placed in some appropriate way before the Minister and that the Minister had made a decision not to proceed to exercise what I have called “mercy” under the residual power under section 417.

MR BEECH‑JONES:   I think I have a recollection not to proceed to consider that and, indeed, I think ‑ ‑ ‑

KIRBY J:   That could not be a decision made by the Department.  It would have to be made by the Minister.

MR BEECH‑JONES:   There is some debate about that, if I could say this, your Honour ‑ ‑ ‑

KIRBY J:   Yes, but if it does not get to the Minister’s mind, how can he consider whether he will exercise the mercy or not?

MR BEECH‑JONES:   Your Honour, there is a Full Court of the Federal Court authority to the effect that the Minister can give guidelines to his officers as to which matters can be sent to him and which matters cannot.

KIRBY J:   Well, that may come to us one day.

MR BEECH‑JONES:   It may, indeed.

KIRBY J:   In the meantime, that does not appear to have been the focus of the appeal to the Full Court.

MR BEECH‑JONES:   It was not an issue in the appeal.

KIRBY J:   My second questions relate to this practice of getting Ms Nanson – and I am not criticising her personally, but it is a very undesirable procedure that an officer of the solicitor for the Minister should be advising the applicant for refugee status.  It is almost certain to lead to the types of problems that have come before the Full Federal Court and this Court.

MR BEECH‑JONES:   With the greatest respect, your Honour, in my submission, she was not giving him advice.  She was making sure that when ‑ ‑ ‑

KIRBY J:   She is telling him he can go to the Bar Association.  She is confirming that he wishes to discontinue.  She is discussing the applicant’s lack of legal representation with him.

MR BEECH‑JONES:   Your Honour, she is ensuring that his consent to the dismissal of his proceeding is fully informed.  In my submission, that is not giving advice at all.  In fact, with respect, if all that had happened was that she had placed some form of consent orders in front of him and said,

“Please sign here,” that the criticism would be the reverse, that, in effect, somehow he was overcome by events.

Could I just point this out to your Honour?  The conversation which is referred to on page 50 was on 9 August.  That was postdating the letter that was sent to his Honour Justice Tamberlin, which is at page 27, that is, the initiation for the proposal for the applicant to drop his case came from the applicant, not the other way – not in any way suggested by Ms Nanson.  All she was making sure, in my respectful submission, was that he understood that his case was being discontinued and she gave him some basic information about obtaining representation and, with respect, in my respectful submission, that is, in effect, being the model litigant, not getting into the area of advice.

Indeed, that, in my submission, might be what a judge would say to the applicant if presented with consent orders, that is, ensuring at a basic level the applicant knew that the effect of them was the case was over and if there was just a hint of a suggestion that it was not truly or free consent perhaps because the applicant felt overawed because they did not have legal representation pointing out the options of where they could possibly get it.  I do not mean to be argumentative, your Honour, but that is my respectful submission about that.

KIRBY J:   Yes.

MR BEECH‑JONES:   Unless there is anything further, your Honours.

GAUDRON J:   Yes.  Yes, thank you, Mr Beech‑Jones.  Yes, Mr Bizuneh, you have a right to reply to that, no longer than five minutes though.

MR BIZUNEH:   Your Honour, that I want to mention because ‑ ‑ ‑

GAUDRON J:   Could you speak up, please?

MR BIZUNEH:   I made a mistake, just genuine mistake, but now this is a very serious case.  Now, if you reject my ‑ ‑ ‑

KIRBY J:   We know it is very serious for you, but we have to be very careful in our review of the Federal Court and you can only succeed to win an appeal if we give you special leave if you can show that they made a mistake, that there is an error, and looking at their reasons I do not see any error because you signed the consent order, you knew you were dropping the case, you did not have to, you were close to the hearing, you did so and you cannot just expect courts to ignore that fact.  You signed a consent order for a judgment.  I am sorry.  If I had the magic power to wave it away, I would do so, but that is not the way courts of justice operate in Australia.

MR BIZUNEH:   But when I signed that consent order there is a lot of circumstances.  I did not sign just straightaway because there was a lot of difficulties as an unrepresented applicant, so it was very difficult for me and I was – I mentioned a lot of things.  So now because of that, my genuine claim now, if you reject my application, my genuine claim for refugee status is going to be ignored because I did not get any judicial review regarding to my protection visa application and if you reject my application means now again they are going to put me in detention and they are going to deport me back to the country where I was running from.

I spent here now more than three month.  My claim is becoming more strong and strong.  Staying three years means staying three additional opposition for the government.  So your Honours please consider on this situation.

GAUDRON J:   Yes, thank you, Mr Bizuneh.

In this matter we see no reason to doubt the correctness of the decision of the Full Federal Court.  Accordingly, special leave must be refused.

MR BEECH‑JONES:   Yes, I am instructed to seek costs, your Honour.

KIRBY J:   There is a submission here that there is special reasons for not ordering costs on page 90, but they do not appear to be any more than the fact that Mr Bizuneh is a refugee and claims the benefits of the Refugee Convention.  Do you wish to say anything more in elaboration of that submission?  The normal rule in Australia is that if you bring an application and fail you must pay the costs.  That should happen here, I think.

GAUDRON J:   Yes.  The order is application refused with costs.

AT 12.23 PM THE MATTER WAS CONCLUDED