MZAIB v Minister for Immigration & Border Protection

Case [2015] FCA 1392

FEDERAL COURT OF AUSTRALIA

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

Citation: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
Parties: MZAIB v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and FEDERAL CIRCUIT COURT OF AUSTRALIA
File number: VID 419 of 2015
Judge: MORTIMER J
Date of judgment: 9 December 2015
Catchwords:

MIGRATION – application to Federal Circuit Court to extend time in which to bring judicial review proceedings under s 477(2) of the Migration Act 1958 (Cth)

ADMINISTRATIVE LAW – judicial review of decision of Federal Circuit Court refusing to extend time under s 477(2) of the Migration Act 1958 (Cth) – whether Federal Circuit Court denied procedural fairness by failing properly to explain procedure to or make inquiries of self-represented litigant who believed incorrectly he was represented by a lawyer in his proceeding – whether applicant denied an effective choice as to how to conduct his application – no requirement to show prospects of successfully impugning the Tribunal’s decision to succeed where judicial review application based squarely on denial of procedural fairness by the Federal Circuit Court – consideration of relevant factors including difficulty of explaining in ordinary language what the applicant needed to prove to succeed on judicial review – application dismissed
Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 476, 476A(3), 477(1), 477(2)
Cases cited: Abram v Bank of New Zealand [1996] FCA 635; ATPR ¶41-507
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38
Dietrichv The Queen [1992] HCA 57; 177 CLR 292
Hamodv State of New South Wales [2011] NSWCA 375
MacPherson v The Queen [1981] HCA 46; 147 CLR 512
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; 84 FCR 438
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
Panagopoulos v Southern Healthcare Network (unreported, Sup Ct, Vic, Smith J, 15 September 1997)
R v Gidley [1984] 3 NSWLR 168
R v Macfarlane; Ex parte O’Flanagan [1923] HCA 39; 32 CLR 518
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301
Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141
SZRIQv Federal Magistrates Court of Australia [2013] FCA 1284; 139 ALD 252
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
SZTSU v Federal Circuit Court of Australia [2015] FCA 224
SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88; 229 FCR 317
Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55
Tomasevic v Travaglini [2007] VSC 337; 17 VR 100
Date of hearing: 11 November 2015
Place: Perth (heard…

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MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Case
[2015] FCA 1392
Decision Date

CaseChat Overview and Summary

In the matter of MZAIB v Minister for Immigration & Border Protection, the applicant, a national of Egypt, sought judicial review of a decision of the Federal Circuit Court (the "Court") which had refused to extend the time in which to bring judicial review proceedings under s 477(2) of the Migration Act 1958 (Cth). The primary issue before the Court was whether the Federal Circuit Court had denied procedural fairness to the applicant by failing to properly explain the procedure to him or make inquiries of him as a self-represented litigant who believed incorrectly that he was represented by a lawyer. The Court also considered whether the applicant was denied an effective choice as to how to conduct his application.

The Court found that the applicant's case was based squarely on a denial of procedural fairness by the Federal Circuit Court. The Court considered the relevant factors, including the difficulty of explaining in ordinary language what the applicant needed to prove to succeed on judicial review. The Court concluded that the applicant's case did not require him to show prospects of successfully impugning the Tribunal’s decision to succeed. The Court dismissed the application.

The Court's reasoning was based on the principles of administrative law and the need for procedural fairness in judicial review proceedings. The Court noted that the pressure of high volume decision-making in the migration jurisdiction should not result in hearings which do not accord with the principles of procedural fairness. The Court also noted that unrepresented applicants must be given some reasonable time to regularise their materials and present their arguments.

The Court concluded that the Federal Circuit Court had denied procedural fairness to the applicant, but that the applicant's case did not require him to show prospects of successfully impugning the Tribunal’s decision to succeed. The Court dismissed the application, finding that the applicant's case was not made out.

The final orders of the Court were that the application was dismissed. The Court's decision highlights the importance of procedural fairness in judicial review proceedings, and the need for courts to consider the relevant factors in determining whether to grant relief in such cases.

Orders

Orders of the court

1. The application is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

Background

Background to the litigation

For the reasons I set out, the application must be dismissed, although that is a conclusion I have reached with some considerable disquiet.BACKGROUND The applicant is a national of Egypt who arrived in Australia on a student visa in June 2008 and applied in October 2012 for a Protection (Class XA) visa, which was refused by a delegate of the Minister on 19 December 2012. On 8 October 2013, the Refugee Review Tribunal affirmed that decision. There was then a considerable delay before the applicant filed an application in the Federal Circuit Court on 10 July 2014, seeking judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth) and an extension of time in which to do so under s 477(2). Pursuant to s 477(1) of the Act, an application to the Federal Circuit Court for a remedy to be granted under s 476 in relation to a migration decision must be made within 35 days. The date 35 days after the Tribunal’s decision on 8 October 2013 is 12 November 2013, and accordingly the applicant’s application to the Federal Circuit Court was 240 days out of time. THE TRIBUNAL DECISION The applicant is a Sunni Muslim from Cairo who worked as a carpenter in his family’s carpentry business. As set out in the Tribunal’s reasons, the applicant claimed to fear persecution by the Muslim Brotherhood in Egypt, who he said had targeted him on account of his membership of and involvement with the National Democratic Party, the dominant ruling party in Egypt from the time of its establishment in 1978 until the overthrow of President Hosni Mubarak in 2011 following a popular uprising against the party. The applicant claimed that he joined the National Democratic Party in 1995 in order to expand his networks and work prospects, and that the party helped him open his carpentry workshop as part of the family business. The applicant said that he did community service work for the party, and that his role was to help people to find work including by providing training. The applicant claimed that the Muslim Brotherhood came to him one year before he came to Australia and approached him on five occasions. They told him to close his workshop, which he did in December 2007. The applicant stated that since he left Egypt the Muslim Brotherhood had asked about his whereabouts. The Tribunal accepted that the applicant is an Egyptian national who was a member of the National Democratic Party from 1995 until the time he came to Australia. However, the Tribunal considered his involvement in the party was limited and was of a low profile. Affirming the delegate’s decision, the Tribunal found the applicant’s fear of persecution by the Muslim Brotherhood (referred to as “MB” in the Tribunal’s reasons) was not well founded:Country information set out above indicates that the MB was removed from power in July 2013 and a new government has been installed. The above country information indicates that many hundreds of MB supporters have been arrested or killed since. Even during the reign of the MB the country information does not establish that low-profile members of the NDP were targeted or mistreated by the authorities or other group. The NDP was reported to have 1.9m members. Several members of the senior leadership of the NDP and other high profile members were arrested on charges of embezzlement and corruption but the applicant was not in this position. When the NDP was dissolved, its former members were allowed to participate in the November 2011 elections.The applicant was not directly politically active in elections and did not have any formal role in the party or take part in any of their political activities. At the hearing he displayed only a rudimentary knowledge of the party’s policies. I have accepted that he helped the NDP provide services to the community through training individuals but I find this role to be only of a low-level nature. I have accepted that the applicant was visited on five occasions by MB members and that they twice enquired about his whereabouts with his brother in the months after he left Egypt. He was not however physically harmed by these men nor was there any damage done to his workshop in any of these visits. Furthermore, it is now over five years since the applicant left the country, the NDP no longer exists, there are no reports of low-level NDP members being targeted after the January 2011 revolution and the MB is no longer in power. In response to the country information at hearing, the applicant claimed his social services work was more important than talking and that he was a famous person in the area. I have taken into account this response but I find his role was only low-profile and I am of the opinion that the prospects of the MB or its members and supporters having an adverse interest in the applicant upon his return to Egypt or in the reasonably foreseeable future to be very remote. THE APPLICATION TO THE FEDERAL CIRCUIT COURT

Evidence

Evidence Before The Court

When the parties appeared before me for case management on 2 September 2015, I raised with the parties the need for an amended originating application and amended statement of claim setting out full particulars of the fraud alleged to have occurred, and made orders granting the applicant leave to file those amended documents. So that Ms Saraya might make an election whether to respond to the serious allegations made against her in this proceeding, I further ordered that the applicant serve on her the amended originating application, amended statement of claim and the applicant’s affidavit material. As it turned out, the allegation of fraud was not pursued. Nevertheless the applicant’s solicitor subsequently filed with the Court an affidavit of service showing service on Ms Saraya, in substantial compliance with my orders, of the amended originating application, the statement of claim as originally filed and what was described as an “amended affidavit” of the applicant, which appears to refer to the further affidavit affirmed by the applicant and filed on 23 September 2015. THE AMENDED STATEMENT OF CLAIM AND THE EVIDENCE BEFORE ME As I have noted, the amended statement of claim did not pursue an allegation of fraud. The amended statement of claim did not particularise the alleged fraud as the applicant had been ordered to do. Rather, it raised a wholly new ground: namely, that the Federal Circuit Court had failed to afford the applicant procedural fairness. That ground was particularised as follows: a.Prior to the arrival of the interpreter (who arrived late to the hearing), the learned Judge commenced substantive discussion of the matter, including asking the applicant whether he had “had a chance to read through” the Respondent’s submissions, but did not make any further inquiries as to whether they had been interpreted to him, or whether he had understood them, or discussed them with a lawyer, or whether indeed he understood the nature of the proceedings at all;b.The court failed to inform the applicant during the hearing on 23 June 2014 that the hearing would be the final hearing of the matter;c.The court failed to invite the applicant to address the question of extension of time;d. Despite:i.the court’s acknowledgement that “it’s a very technical legal argument”,ii.the applicant’s obvious confusion and fundamental misunderstanding of the nature of the proceeding,iii.the fact that the applicant had not personally prepared the grounds for review,iv.repeated references to the wrong country (Lebanon) in the grounds for review, andv.the applicant’s manifest unpreparedness to make submissions on the application for the extension of time and the substantive application,the court failed to inquire as to whether the applicant was legally represented or intended to be legally represented at the final hearing of the matter, or to ask why the “lawyer” who appeared to have prepared the grounds was not present for him at the hearing.(Footnotes omitted.)

Decision

Reasons for decision

There was then a considerable delay before the applicant filed an application in the Federal Circuit Court on 10 July 2014, seeking judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth) and an extension of time in which to do so under s 477(2). Pursuant to s 477(1) of the Act, an application to the Federal Circuit Court for a remedy to be granted under s 476 in relation to a migration decision must be made within 35 days. The date 35 days after the Tribunal’s decision on 8 October 2013 is 12 November 2013, and accordingly the applicant’s application to the Federal Circuit Court was 240 days out of time. THE TRIBUNAL DECISION The applicant is a Sunni Muslim from Cairo who worked as a carpenter in his family’s carpentry business. As set out in the Tribunal’s reasons, the applicant claimed to fear persecution by the Muslim Brotherhood in Egypt, who he said had targeted him on account of his membership of and involvement with the National Democratic Party, the dominant ruling party in Egypt from the time of its establishment in 1978 until the overthrow of President Hosni Mubarak in 2011 following a popular uprising against the party. The applicant claimed that he joined the National Democratic Party in 1995 in order to expand his networks and work prospects, and that the party helped him open his carpentry workshop as part of the family business. The applicant said that he did community service work for the party, and that his role was to help people to find work including by providing training. The applicant claimed that the Muslim Brotherhood came to him one year before he came to Australia and approached him on five occasions. They told him to close his workshop, which he did in December 2007. The applicant stated that since he left Egypt the Muslim Brotherhood had asked about his whereabouts. The Tribunal accepted that the applicant is an Egyptian national who was a member of the National Democratic Party from 1995 until the time he came to Australia. However, the Tribunal considered his involvement in the party was limited and was of a low profile. Affirming the delegate’s decision, the Tribunal found the applicant’s fear of persecution by the Muslim Brotherhood (referred to as “MB” in the Tribunal’s reasons) was not well founded:Country information set out above indicates that the MB was removed from power in July 2013 and a new government has been installed. The above country information indicates that many hundreds of MB supporters have been arrested or killed since. Even during the reign of the MB the country information does not establish that low-profile members of the NDP were targeted or mistreated by the authorities or other group. The NDP was reported to have 1.9m members. Several members of the senior leadership of the NDP and other high profile members were arrested on charges of embezzlement and corruption but the applicant was not in this position. When the NDP was dissolved, its former members were allowed to participate in the November 2011 elections.The applicant was not directly politically active in elections and did not have any formal role in the party or take part in any of their political activities. At the hearing he displayed only a rudimentary knowledge of the party’s policies. I have accepted that he helped the NDP provide services to the community through training individuals but I find this role to be only of a low-level nature. I have accepted that the applicant was visited on five occasions by MB members and that they twice enquired about his whereabouts with his brother in the months after he left Egypt. He was not however physically harmed by these men nor was there any damage done to his workshop in any of these visits. Furthermore, it is now over five years since the applicant left the country, the NDP no longer exists, there are no reports of low-level NDP members being targeted after the January 2011 revolution and the MB is no longer in power. In response to the country information at hearing, the applicant claimed his social services work was more important than talking and that he was a famous person in the area. I have taken into account this response but I find his role was only low-profile and I am of the opinion that the prospects of the MB or its members and supporters having an adverse interest in the applicant upon his return to Egypt or in the reasonably foreseeable future to be very remote. THE APPLICATION TO THE FEDERAL CIRCUIT COURT

Ratio Decidendi

Legal Principle Established

Second, as the Full Court in Shrestha [2015] FCAFC 87; 229 FCR 301 said at [53]-[54], and subject to any legislative provisions manifesting a contrary intention, the pressures which may be involved in hearing and determining matters in the migration jurisdiction of the Federal Circuit Court do not mean that applicants in that jurisdiction should receive hearings which do not accord with the principles set out above:The pressure of high volume decision-making, such as that undertaken by the FCC in the migration jurisdiction, should be recognised. Essential tools in managing high volumes of cases include the show cause process in Pt 44 of the FCC Rules, and the power outside that process, in s 17A of the FCC Act, summarily to dismiss a judicial review application. The existence and utilisation of those processes do not obviate the need to consider the material before the Tribunal (rather than simply its reasons), nor to explain in plain terms to unrepresented applicants that they must identify to the Court why the Tribunal’s decision was not made lawfully and by a fair process. Insisting to an unrepresented applicant that she or he identify a “jurisdictional error” is a pointless, and unfair, exercise. Further, the processes in s 17A and Pt 44 do not remove the obligation to give parties, whether represented or unrepresented, some reasonable time to regularise their materials and present their arguments.It is no fault of an individual litigant in a migration judicial review that there are thousands of other migration cases, nor that there are insufficient resources to provide all impecunious applicants with legal representation. Much is at stake for an individual litigant in the migration jurisdiction in the sense of fundamental rights, including her or his liberty in Australia by reason of the mandatory detention regime in the Act. High volumes of cases should if anything give rise to extra caution to ensure no injustices are being done because of judicial workload pressures.CONSIDERATION If there has been a denial of procedural fairness (whether by a failure in the Court’s duties to a self-represented litigant or otherwise) and that failure is properly characterised as jurisdictional, this Court retains a discretion concerning whether to grant relief. However, given the error is jurisdictional and therefore the underlying proposition is that the Federal Circuit Court acted without power or authority in making the decision it did, the threshold is relatively low: whether the denial of procedural fairness denied the applicant the possibility of a successful outcome (see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147, and Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [56]). In this case, the Minister submitted that the decision in SZTES [2015] FCA 719 demonstrated that an applicant needed to show an arguable error in the way the Federal Circuit Court dealt with the alleged jurisdictional errors in the Tribunal’s decision. That is, an applicant needed to show some prospects of success in impugning the Tribunal decision before an order in the nature of certiorari should issue to quash the decision of the Federal Circuit Court not to extend time. I do not accept that proposition as a necessary condition precedent to the grant of relief in all judicial review applications of this kind. It may be that often an argument about why the Federal Circuit Court was wrong to find no reasonably arguable grounds of review as part of its refusal to exercise the discretion in s 477(2) will form part of an applicant’s contentions under s 39B but the nature of the challenge to the Federal Circuit Court decision need not involve such an argument. Unlike SZTES, that is the case here. The applicant’s case is squarely (and only) based on a denial of procedural fairness by the Federal Circuit Court. The key result of the denial of procedural fairness was, the applicant submits, that he did not have the opportunity to retain a lawyer to examine the Tribunal’s decision and give him proper, and qualified, advice on whether there were any arguable legal errors in the decision, or whether he had an arguable case that he had been denied procedural fairness.