MZYVQ v Minister for Immigration - [2012] FMCA 856

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYVQ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 856

MIGRATION – Application for judicial review of IMR report – informally filed by solicitor without certificate as to merits – whether competent – applicant released into community – absence of applicant or legal representative from two directions listings – no evidence raising doubt as to applicant’s competence – no apparent arguable merits – application dismissed on grounds of absence.

Federal Magistrates Court Rules 2001 (Cth) rr.11.08, 11.11, 13.03C, 16.05(2)(a), 44.12(1)(a)
Migration Act 1958 (Cth), ss.36(2), 46A, 477(1), 486I

L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432
SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26

Applicant:

MZYVQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRISTOPHER KEHER, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

MLG 204 of 2012

Judgment of:

Smith FM

Hearing date:

7 September 2012

Delivered at:

Sydney

Delivered on:

7 September 2012

REPRESENTATION

Counsel for the Applicant:

No Appearance

Counsel for the Respondents:

Ms H Dejean

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed under Rule 13.03C(1)(c) for absence from a hearing.
The applicant must pay the first respondent’s costs in the sum of $3,239.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

MLG 204 of 2012

MZYVQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRISTOPHER KEHER, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This migration matter has been in the Court’s lists for seven months. It has no apparent merit, and none of the lawyers who have been assisting the applicant have accepted instructions to represent him in the proceeding. I have some doubts whether it was ever properly commenced. The applicant has never appeared before the Court and, in particular, has not appeared in person or by a legal representative on the last two listings before me, despite warnings that the application might be dismissed if he did not attend in person or by a legal representative. I have decided that the time has come to dismiss it summarily.
The applicant arrived at Christmas Island in October 2010 without travel documents, but with identity papers showing Iranian nationality. He was assisted on 4 December 2010 to apply for a determination as to his refugee status, pursuant to administrative procedures established by the Minister to decide whether he would allow an onshore visa application to be made for a protection visa, pursuant to s.46A of the Migration Act 1958 (Cth).The applicant was assisted in making that application, and in all the subsequent administrative proceedings, by a migration agent based in Adelaide under the Immigration Advice and Application Assistance Scheme (“IAAAS Scheme”).
An adverse determination was made by an officer of the Department of Immigration on 6 May 2011. The applicant, assisted by his agent, sought review by an Independent Merits Reviewer. This was conducted by Mr Keher, who interviewed the applicant at Christmas Island. He wrote a report dated 20 December 2011, which was sent to the applicant and his agent on 21 December 2011. In his report, Mr Keher explained why he decided that the applicant’s history, upon which he claims to have been persecuted in Iran and to fear further persecution if he returned, had been “fabricated for the purpose of advancing his protection visa application”. Mr Keher also considered the applicant’s situation generally, and did not accept that the Iranian authorities would have any interest in the applicant. He recommended that the applicant did not meet the criteria for a protection visa set out in s.36(2) of the Migration Act.
The application commencing the present proceeding seeking judicial review of Mr Keher’s report was filed in Melbourne on 24 February 2012. The document appears to have a signature which I was in doubt about, but now appears to me to be that of the applicant himself. The application does not nominate a legal representative on the record. However, it was physically filed in the Registry by a solicitor of “Victoria Legal Aid”, accompanied by an affidavit of the solicitor which attached the report of the Independent Merits Reviewer. The affidavit said:
5.I am the deponent on behalf of the applicant because of the practical difficulties of getting the applicant to have access to a person who can receive affidavits. The applicant is currently detained at the Melbourne Immigration Transit Accommodation, in the state of Victoria. He is filing his application on an urgent basis as he is already out of time. He does not have physical access to a lawyer or another person who can receive his affidavit.
In a covering letter to the Court’s registry, the solicitor said:
I have assisted (the applicant), who is in immigration detention, to prepare materials for a judicial review application to the Federal Magistrates Court.
The applicant is impecunious and has no ability to pay any court fees.
VLA is currently assessing the merits of (the applicant’s) judicial review case. Pending our assessment, (the applicant) has applied for legal assistance from VLA. If VLA is able to represent (the applicant) and his application for legal assistance is approved, VLA should be in a position to pay the reduced $100 fee at a later date.
My concern whether the application thus presented to the Court was competent, arises by reason of s.486I of the Migration Act which provides:
(1)A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.
(2) A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.
On its face, the application which was in fact filed by the lawyer at Victoria Legal Aid did not show any arguable merits, and does not contain the required certificate of a legal practitioner.
The grounds of review that it contains state only as follows:
1.The decision of the second respondent was affected by legal error in that in recommending to the first respondent that the applicant not be recognised as a person to whom Australia owes protection obligations, the IMR was not procedurally fair.
2.The decision of the second respondent was affected by legal error in that in recommending to the first respondent that the applicant not be recognised as a person to whom Australia owes protection obligations, the IMR did not proceed by reference to correct legal principles, correctly applied.
Obviously, in the absence of any particulars of these contentions, these grounds did not raise any arguable case for the relief claimed in the application. However, I shall not pause to consider the implications of s.486I further.
In fact, the application was accepted by the Court’s registry in Melbourne, and it was listed there before a Registrar on 3 April 2012. At that listing, the Minister was represented by a solicitor, who passed up consent orders bearing a signature which appears to be that of the applicant. There was no appearance by or on behalf of the applicant. The consent orders were made by the Registrar. They provided a complete timetable for the presentation of the applicant’s case for judicial review, including the filing of an amended application containing proper particulars of grounds of review, the exchange of written submissions, and a hearing appointed before Burchardt FM on 2 July 2012.
Pursuant of those directions, the Minister’s solicitors filed a Court Book and submissions prior to the appointed final hearing.
However, on 28 June 2012 another set of consent orders was submitted to the Court by the Minister’s solicitors, bearing the signature of the applicant. Their email noted that the applicant “has been released from detention and is currently living in New South Wales”. They requested the vacating of the hearing, and the transfer of the matter to Sydney. Burchardt FM agreed to do that in chambers on 29 June 2012.
The file, therefore, was sent to Sydney without any indication on the file that the applicant had arguable grounds of review, or that he would be legally represented in Sydney, or that he had received advice about the merits of the matter from a lawyer in Melbourne. One implication from the previous involvement of Victoria Legal Aid is that its lawyers had, in fact, looked at the matter and decided not to provide legal aid to allow the applicant to be represented at the appointed hearing in Melbourne.
After the matter reached Sydney, Victoria Legal Aid maintained that they do not represent the applicant. They made this clear in an email to the registry in Sydney dated 11 July 2012, which said:
Just to clarify that VLA do not act for the applicant (MZYVQ) in this matter. We have just assisted the applicant to complete the forms and lodge an application. Also, a Notice of Appointment of Lawyer has not been lodged at the FMC. Please update your record accordingly.
(emphasis in original)
Notwithstanding this assistance, the applicant was never assisted to file a notice of his address for service in Sydney, and did not do so until very recently. In that situation, the Minister had only an address for the applicant where he understood the applicant was residing after having been released into the community. The Court also had no address for service except as suggested by an email from the Minister’s solicitors, providing that address.
The matter reached my docket and was listed for directions on 31 July 2012. The Court and the Minister’s solicitors sent letters to the address at which the applicant was thought to be residing, informing him of that listing. However, there was no attendance by the applicant nor by any legal representative on his behalf at the listing. I therefore directed that the directions hearing be adjourned, and that the applicant be sent a notice to the last address known to the Minister, stating that if he failed to attend in person or by legal representative on 21 August 2012, the matter would be dismissed for non-attendance. I am satisfied that a letter to this effect was sent in accordance with my directions, and that it enclosed a copy of my order which also contained that warning.
Shortly before 21 August 2012, the Court received an email from a barrister in Sydney. The barrister said by email sent on 20 August 2012:
Dear Associate,
I have recently been asked to review the Applicant’s case and in order to enable me the opportunity to review the relevant material, and in order to enable the Applicant to undergo a psychiatric evaluation, the parties are agreeable to this matter being stood over to the call-over on 6 November 2012, if this is convenient to the Court.
With the consent of (a solicitor) at the Australian Government Solicitor, I am contacting you this afternoon in order to ask whether Federal Magistrate Smith would be prepared to make an order in chambers this afternoon standing the proceedings over until 6 November 2012 thereby dispensing with the necessity for the parties to appear tomorrow.
The reference to “6 November” is a reference to some draft minutes which had earlier been forwarded by my associate to the solicitors for the Minister, on the assumption that the applicant would be represented or otherwise show a desire to proceed with his matter. The barrister was informed that the Court would not vacate the listing for directions.
The directions listing then went ahead on 21 August. There was no appearance by or on behalf of the applicant. The barrister attended, but was emphatic that he did not have instructions to appear on behalf of the applicant or otherwise act on his behalf. The barrister’s status was therefore left entirely ambiguous, and the Court was placed in an embarrassing position. The barrister informed the Court that he had been told that the applicant might have a serious psychiatric condition that might affect his capacity to instruct a lawyer. No evidence to this effect was tendered. The barrister had not received the Court Book from the applicant, had not looked at the IMR report to see whether the application had any arguable merit, and denied being instructed by the applicant to provide advice as to this. He appeared to concede that the applicant was aware of the listing, and he referred to the applicant receiving unexplained assistance from a person at the “Asylum Seekers Centre of New South Wales” which, so far as the Court is aware, is not a firm of solicitors and does not have legal expertise.
Faced by this unsatisfactory situation, I made directions as follows:
1.The proceeding is adjourned for further directions on 7 September 2012 at 9.30 a.m. at Court 6D, Level 6, John Maddison Tower, 88 Goulburn Street, Sydney.
2.The applicant must file a notice of his address for service before that listing
3.Note that the Court has been informed that the applicant may be medically incapable of instructing a legal representative and appearing at Court in the proceedings.
4.The applicant or any person or persons seeking to be heard in the matter whether on behalf of the applicant or otherwise must no later than 5 September 2012 file and serve an affidavit or affidavits, including any relevant medical evidence, explaining the applicant’s absence from today’s hearing and any further or anticipated inability to attend court and otherwise participate in the proceedings.
5.The first respondent must within the next 2 days send to the applicant at his last know address a copy of today’s order together with a map showing the location of the Court, and must inform the applicant that his application may be dismissed if he fails to attend on the next listing in person or by his legal representative.
I indicated to the barrister, that since he did not represent the applicant, I could not direct him to give the applicant notice of the listing.
There was no appearance at the listing today by the applicant, by a legal representative, or by the barrister or any other person seeking informally to provide assistance to the applicant in relation to the proceedings. Nothing had been filed or presented to the Court in accordance with order 4 made on 21 August 2012.
I am satisfied by an affidavit today that my directions for the service of those orders on the applicant were complied with by the Minister’s solicitor. I am also satisfied that the applicant in fact received copies of my orders, and is aware of today’s listing. I make that finding based on two facts.
First, I am informed by the solicitor for the Minister that she received an email from a person at the Asylum Seeker Centre of New South Wales yesterday, indicating that she would be meeting the applicant to draw his attention to his need to attend the hearing. The email confirmed that the applicant would be “unrepresented tomorrow”. The person indicated that she was aware that there would be an interpreter available today in the applicant’s language. [I note that, in fact, there is an interpreter available today for the applicant, should he have attended.]
Secondly, the Registry received a facsimile “Notice of Address for Service” this morning at approximately 9:30 am signed by the applicant, and giving the address that was previously known to the Minister as his address where he is living in Sydney. There was no covering communication accompanying that document to explain the applicant’s absence today.
It is now 10:20 am and there has been no appearance by or on behalf of the applicant, and I must therefore decide what to do.
As I have noted, no documents whatsoever had been filed by any person to show that the applicant suffers from any medical condition at all, or that he is unfit for any reason to instruct a legal representative or anyone in relation to the proceedings. Nor is there any clear evidence that anyone has yet looked at the merits of the matter on his behalf and advised him whether it has merits. There has certainly been no attempt to file an amended application raising any comprehensible ground for judicial review of the IMR report.
I can put aside completely, the suggestion from the barrister on the last occasion that the applicant suffers from a mental illness rendering him incapable of instructing somebody to obtain advice about the merits of his matter and to represent him at the hearing, if it has merits. There is absolutely no evidence presented to the Court that he might be a person who meets the description of somebody who is so incapacitated as to lack that ability. Such a person, who therefore needs a litigation guardian, is defined by r.11.08 of the Federal Magistrates Court Rules 2001 (Cth):
Person who needs a litigation guardian
(1)For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2)Unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
The Court has power under r.11.11 to appoint a litigation guardian, on the application of somebody who presents evidence showing that the applicant meets that description. The Court also has, in theory, a power to move on its own motion to appoint a litigation guardian. However, the Full Court has drawn attention to the caution with which such a power needs to be considered. In L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432 at 26, their Honours said:
[26]There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs: Masterman-Lister at [17] per Kennedy LJ; Murphy v Doman (2003) 58 NSWLR 51 ; [2003] NSWCA 249 at [36] (Murphy) per Handley JA. When it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister at [17] per Kennedy LJ; Dalle-Molle v Manos (2004) 88 SASR 193 ; [2004] SASC 102 at [17] per Debelle J; Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.
[27]The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):
[17] … even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists.
Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30; AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd [2005] NSWSC 709 (AJI Services) and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy at [37] per Handley JA; AJI Services at [57] per Bell J.

It was with these principles in mind that I made order 4 on the last occasion.
The Minister, I am informed today, has no evidence of the applicant suffering from a mental incapacity. The Court has no basis for doubting the competency of the applicant to take necessary steps as a litigant in the proceedings, whether by acting and appearing for himself or by instructing a lawyer to assist or represent him. I shall, therefore, proceed on the basis that at all times while his matter has been before the Court, the applicant has had full competence to understand the simple orders and directions requiring him to prepare his case and attend at hearings, if necessary, with the assistance of a lawyer instructed for that purpose. The Court’s experience in IMR matters is that there is no dearth of lawyers willing and available to provide that assistance, whether de bono or for a fee.
However, it is difficult to detect any direction that the Court has made over seven months which has been complied with by or on behalf of the applicant. He is in default of directions requiring him to show an arguable case. However, most importantly, he is in default of appearance today.
The Court’s options in relation to a default of appearance are set out in r.13.03C of the Rules:
13.03C Default of appearance of a party
(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:
(a)adjourn the hearing to a specific date or generally;
(b)order that there is not to be any hearing, unless:
(i) the proceeding is again set down for hearing; or
(ii) any other steps that the Court directs are taken;
(c)if the absent party is an applicant — dismiss the application;
(d)if the absent party is a party who has made an interlocutory application or a cross‑claim — dismiss the interlocutory application or cross‑claim;
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned

in subrule 13.03B (1), (2) or (4), or any other order, or

may give any directions, and specify any consequences for non‑compliance with the order, that the Court thinks just.
Considering these options, I do not consider it appropriate to proceed to a final hearing in the absence of the applicant, whether today or on a later date, due to the absence of any arguable case raised by the documents that have been filed by him or on his behalf.
In the absence of any person today to point to an arguable case, and reading the report of Mr Keher unaided by any submissions, I am unable to detect that the applicant has an arguable case for relief. It might therefore be open to the Court today to dismiss the proceedings under r.44.12(1)(a) because of the absence of an arguable case. Certainly, the applicant, and those advising and helping him, have had more than enough time to identify arguments which might raise an arguable case of invalidity of the report or relevant defect affecting the report of Mr Keher.
If the applicant had appeared before me at a prior directions listing, I would not have hesitated to have dismissed the matter today under r.44.12(1)(a) after giving him due notice of an intention to consider that issue. However, he has not been given such notice, and he is not here today, to show cause why I should not proceed under that rule. I therefore do not propose to dismiss the application on the ground of its lack of any apparent merit.
However, I do consider that the time has come to give finality to the proceedings, notwithstanding the indulgence that the applicant has previously been given for the adjournment of his matter, and notwithstanding that the Minister has not previously objected to the protraction of the proceedings to an extent far beyond the normal timescale expected of a migration matter in this Court. I consider the Court itself should consider the dismissal of the proceeding due to the applicant’s absence today, and I note that the Minister’s representative today seeks an order under r.13.03C(1)(c).
In the circumstances I have outlined above, I consider that this would be the appropriate order to make. The applicant has had access since the inception of the proceedings to sources of legal and other assistance from persons able to arrange for him to be properly advised. The applicant has not shown the Court that he has any interest in continuing the proceedings, nor that he has arguable grounds for invoking the jurisdiction of the Court. I consider that he has been afforded more than sufficient opportunity to demonstrate both of these things. I consider that it would be in the interests of the administration of justice in this Court for the application to be dismissed by reason of the unexplained absence of the applicant or a legal representative from today’s listing.
Moreover, the making of that order would not give rise to any apparent prejudice to the applicant. He would retain the option to apply to reinstate the present proceeding under r.16.05(2)(a) of the Federal Magistrates Court Rules. Such an application would need to be supported by affidavits explaining his defaults in the past and his absence today, and pointing to arguable merit in the principle application.
Alternatively, as a result of SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26, proceedings such as the present are not subject to the time limit under s.477(1) of the Migration Act. It would therefore be open to the applicant to file a fresh proceeding raising proper grounds for review of the IMR report, at any time into the future and until he is actually threatened with deportation or other adverse action by the Minister or by his Department in reliance on the IMR recommendations. No time limits would apply to such fresh proceedings, although the applicant might need to explain his delay in challenging the report, if the Minister invoked discretionary objections to relief.
On either of those options, the applicant would be able to present any proper arguments for the relief sought in the present application. However, I am not today satisfied that such arguments exist, and I consider it appropriate to dismiss the matter today due to the applicant’s absence from an important listing of which he has been given appropriate notice.
In relation to costs, the Minister seeks costs as taxed on a party/party basis including the Minister’s costs of preparing the matter for a final hearing in Melbourne. However, I am not satisfied that I should make an award of costs on that basis. It seems to me that the Minister has acquiesced or contributed to the inordinate protraction of the proceedings in the face of their lack of apparent merit and their unreadiness for a final hearing. I therefore propose to award costs only under Item 1(b) of Part 3 of Schedule 1 of the Federal Magistrates Court Rules, as a migration proceeding which was “concluded after the first court date for the proceeding and at or before the hearing under rule 44.12 or other interlocutory hearing—$3 239”.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 8 October 2012