Muaby, Mbuaby Paulo v Minister for Immigration and Multicultural Affairs

[1998] FCA 1093

FEDERAL COURT OF AUSTRALIA

IMMIGRATION – Application for review of Refugee Review Tribunal decision – Grounds of application stated in general terms – Applicant not legally represented and unable to read English – Applicant unaware of terms of decision – Apparent lack of system to ensure applicants before Tribunal are made aware of reasons – Need for provision of interpretation services and independent legal advice.

MBUABY PAULO MUABY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG513 of 1998

JUDGE:         WILCOX J
PLACE:         SYDNEY
DATE:           20 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 513 of 1998

BETWEEN:	MBUABY PAULO MUABY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	20 AUGUST 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Application be dismissed.

1. The applicant, Mbuaby Paulo Muaby, pay the costs of the respondent, Minister for Immigration and Multicultural Affairs.

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	NG 513 of 1998

BETWEEN:	MBUABY PAULO MUABY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	20 AUGUST 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:    The situation in this case is quite unsatisfactory; unfortunately it is not unique. 

An application for a review of a decision of the Refugee Review Tribunal was filed on 27 May.  The document is typed.  Apparently, it came from solicitors.  The grounds of review are stated extremely broadly:

“(1)     The Tribunal incorrectly interpreted the law;

(2)The Tribunal had no evidence or other material to justify the making of the decision;

(3)The Tribunal did not observe procedures that were required by the Migration Act or Regulations to be observed in connection with the making of the decision.”

The matter came before me for directions on 4 June 1998.  The applicant, Mbuaby Paulo Muaby, was before the Court.  He is a person of Angolan nationality who speaks Portuguese but no English.  Unfortunately, no interpreter was present on 4 June, so I adjourned the directions hearing for one week to 11 June.  On that occasion an interpreter,  Ms Noemia Berengut was present.  She assisted me in explaining to Mr Muaby the procedure that the Court undertakes.  I made directions for the filing of affidavit material and fixed the matter for hearing today, 20 August. 

Pursuant to the directions, the solicitor acting on behalf of the respondent, the Minister for Immigration and Multicultural Affairs, filed an affidavit exhibiting the papers relating to Mr Muaby's application for refugee status and his application to the Tribunal for review of the Departmental decision.  Although I suggested to Mr Muaby at the directions hearing that he should endeavour to obtain legal assistance, he was apparently unable to do so.  He appeared in person today, with the assistance of Ms Berengut as interpreter. 

I read the Tribunal’s decision before coming into Court.  When the matter was called on, I explained to Mr Muaby, through the interpreter, the limited role the Court has in relation to a review of the Tribunal's decision and I asked him to identify the particular matters intended to be covered by his grounds of review.  During this exchange, it transpired Mr Muaby had not read the decision, or had it read to him.  It is not surprising that he has not read the decision; it is written in the English language and he does not understand written or spoken English.  What is surprising, and rather dismaying, is that  it seems no steps were taken to have the decision read to him, or at least explained to him, in Portuguese. 

When I learnt Mr Muaby was unaware of the contents of the Tribunal’s decision, I indicated I would adjourn the hearing for such time as was needed for Ms Berengut to read the decision to him in Portuguese, which she kindly agreed to do.  I also asked Ms Henderson, counsel for the Minister, during the adjournment to endeavour to ascertain what system, if any, is in place to ensure that persons who do not read English have the content of the decision in their cases conveyed to them. 

In the time available, Ms Henderson has not been able to answer my inquiry.  She informed me the Tribunal appoints a case manager to deal with each application for review.  This person is responsible for liaison with the applicant for review up to the time of the Tribunal’s decision.  However, she was unaware whether the Tribunal required the case manager to make arrangements for the decision to be made available, or explained, to applicants in their own language. 

If there is no system under which this is done, either by the Tribunal or the Department, I respectfully suggest such a system should be established.  Tribunal members are required to give reasons for their decision.  One purpose of this is to inform unsuccessful applicants why their application failed.  It is absurd to require a Tribunal member to take the time and trouble to prepare reasons, that are not, in practice, made accessible to the applicant. 

The number of applications filed in the New South Wales District Registry for judicial review of decisions of the Refugee Review Tribunal is running this year at a rate more than twice that of last year.  It is the experience of my colleagues, as well as myself, that a large proportion of these matters are commenced by a stereotyped form of application that is uninformative and bears little relationship to what the applicant says at the hearing.  It seems the filing of an application for review has become an almost routine reaction to the receipt of an adverse decision from the Tribunal. 

The solution is not to deny a right of judicial review.  Experience shows a small proportion of cases have merit, in the sense the Court is satisfied the Tribunal fell into an error of law or failed to observe proper procedures or the like.  In my view, the better course is to establish a system whereby people whose applications are refused have assured access to proper interpretation services and independent legal advice.  If that were done, the number of applications for judicial review would substantially decrease.  Those that proceeded would be better focussed and the grounds of review more helpfully stated.  If applicants cannot afford legal advice, as is ordinarily the case, it ought to be provided out of public funds.  The cost of doing this would be considerably less than the costs incurred by the Minister under the present system, in instructing a solicitor (and usually briefing counsel) to resist all applications, a substantial number of which have no merit and are ill-prepared.  That is to say nothing about the desirability of relieving the Court from the burden of finding hearing dates for cases that should not be in the list at all.

I make these remarks today because the present case illustrates the problem.  But I would like to emphasise it is by no means unique in doing so. 

I understand from Ms Berengut that, after she commenced to read the Tribunals’s reasons to Mr Muaby, he told her he did not wish her to continue; he had decided there was nothing further he could say.  When I came back into Court, I checked this with Mr Muaby through Ms Berengut and made clear to him this was his opportunity to say whatever he wished in support of his application for review.  He was not able to say anything.  This is hardly surprising.  If Mr Muaby had been properly advised in the first place, I believe his application would not have been filed. 

Without the benefit of submissions from an applicant, it is usually difficult for a judge to determine whether there is substance in an application for review.  However, I have carefully considered the reasons of the Tribunal, with a view to determining for myself whether there is any arguable basis for the relief sought in the application.  I see none.  The Tribunal's summary of the law is unexceptional.  The claim for refugee status failed, essentially, because the Tribunal found claims made by Mr Muaby to be inconsistent with information as to events in Angola that was before the Tribunal and regarded as reliable.  The sources relied on by the Tribunal are reputable international bodies.  I cannot say the Tribunal erred in having regard to that information.  There are significant differences between some of Mr Muaby's claims and that information.

As it seems to me, the Tribunal, as the judge of the facts, was entitled to disbelieve the claims, or at least some of them.  Essentially, the Tribunal's decision was a decision of fact and it is not within the competence of this Court to review the Tribunal's findings of fact. The application must be dismissed.

The order of the Court will be that the application is dismissed with costs.
`

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:             20 August 1998

Applicant in person
Counsel for the Respondent:	R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor