MZZZL v Minister for Immigration & Anor
[2014] FCCA 1309
•16 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZZL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1309 |
| Catchwords: MIGRATION – Judicial review – decision of Refugee Review Tribunal – protection visa application. |
| Legislation: Migration Act 1958 (Cth) |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR; [2009] HCA 27 Fair Work Ombudsman v Kentwood IndustriesPty Ltd [2010] FCA 98 Perera vMinister for Immigration & Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515; [2009] FCAFC 42 WZAPM v Minister for Immigration & Citizenship [2013] FCCA 266 |
| Applicant: | MZZZL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 105 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 16 June 2014 (by video-link to Melbourne) |
| Date of Last Submission: | 16 June 2014 |
| Delivered at: | Perth (by video-link to Melbourne) |
| Delivered on: | 16 June 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr N Dour |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicant’s application in a case filed 5 June 2014 is dismissed.
The applicant pay the first respondent’s costs of today in an amount and at a date to be determined.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
MLG 105 of 2014
| MZZZL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
Before the Court this morning is an application in a case filed on 5 June 2014. The grounds of the original application are as follows:
1.The Refugee Review Tribunal did not afford me procedural fairness.
2. The Refugee Review Tribunal applied the wrong legal test.
In the application in a case, the orders that are sought are as follows:
1.The hearing of 18 June 2014 be adjourned.
2.The final hearing date is moved to 12 August 2014.
The hearing of the matter is listed for this Wednesday, 18 June 2014. The adjournment application is opposed by the first respondent, the Minister for Immigration & Border Protection (“Minister”). The applicant’s application in a case for adjournment is supported by an affidavit, sworn on 4 June 2014 which is in the following terms:
1.I have applied for a grant of legal assistance from Victoria Legal Aid for this matter and have been unsuccessful in obtaining this grant; this was confirmed on 14 May.
2.I do not have the means to engage private counsel to represent me on this matter, unless this is done pro bono.
3.I have engaged the help of several advocacy groups to connect me with practitioners who could represent me in this matter pro bono or at the very least advise me on how to represent myself at the hearing. These organisations are presently actively seeking such assistance for me.
4.I do not believe I will have been able to secure pro bono representation before 18 June 2014, nor do I believe I will have had sufficient preparation time before 18 June 2014 to self-represent.
5.Due to the fact that I can only rely on pro bono legal assistance, the time it will take to find assistance is longer than normal.
6.I believe that by 12 August 2014, if pro bono representation is available to me, I will have secured it or, at the very least, I will have had sufficient preparation time to self-represent.
7.I believe I will be at a great disadvantage if I do not have legal representation or have not had assistance in preparations for self-representation.
8.I do not believe an adjournment of eight weeks will prejudice the other parties in this case.
At hearing today the applicant made submissions to the following effect, in addition to what was contained in the affidavit which the Court has just read: firstly, that there were two firms of lawyers who were now prepared to review his case and represent him, namely Rice Lawyers and Clothier Anderson; secondly, that he intended to allege at hearing that there had been a misinterpretation of his evidence at the hearing before the Refugee Review Tribunal (“Tribunal”).
It is significant to note that in the affidavit sworn less than two weeks ago there is no mention of, firstly, the specific law firms which are now said to be prepared to represent the applicant, or that the applicant intended to raise any difficulties with the interpretation of his evidence at the Tribunal hearing. And the Court further notes that this is, in fact, the first time that that latter matter has been raised at all.
The Court also notes that, on the basis of what has been put today by the applicant, he would not be in a position to pay the Minister’s costs thrown away of Wednesday’s hearing.
The Court has already noted the grounds set out in the substantive application filed on 21 January 2014. A response to the substantive application was filed expeditiously on 29 January 2014 by the Minister. There were orders made by a Registrar of the Court on 16 April 2014, and in particulars orders 3 and 4 which were in the following terms:
(3) On or before 35 days prior to the final hearing the applicant shall file and serve:
(a) an amended application, if any;
(b) a supplementary court book, if any;
(c) written submissions.
(4) On or before 14 days prior to the final hearing the first respondent shall file and serve written submissions.
The applicant has not complied with order 3 or the requirement in order 4 to file written submissions. The Minister filed written submissions on 4 June 2014. It was only after the Minister filed written submissions that the applicant filed the application in a case seeking an adjournment of the hearing on 18 June 2014.
The application for an adjournment must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Circuit Court Rules2001 (Cth) (“FCC Rules”) and as prescribed by the objects of the FCCA Act in ss.3 and 42 and the objects of the FCC Rules in r.1.03 provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
The Court must also take into account the following when determining whether or not to grant leave to allow an adjournment:
a)the paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources,
and the Court refers to the High Court judgment in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213-215 per Gummow, Hayne Crennan, Kiefel and Bell JJ; [2009] HCA 27 at para.30 per French CJ and paras.97-103 per Gummow, Hayne Crennan, Kiefel and Bell JJ; and Fair Work Ombudsman v Kentwood IndustriesPty Ltd [2010] FCA 98 at para.2 per McKerracher J, a decision of the Federal Court.
Turning then to the issue of legal representation: there is no right to legal representation in migration proceedings in this Court. In particular there is no right to free legal advice and the denial of an adjournment on the basis of a lack of access to free legal advice has been held not to be a denial of procedural fairness: see SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at para.4 per Gyles J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at para.24 per Katzmann J; WZANN v Minister for Immigration & Another [2009] FMCA 643 at paras.3 and 9 per Lucev FM (“WZANN”). It follows therefore that a lack of legal representation, including pro bono assistance, is not a necessary basis for an adjournment of proceedings in this Court, and the Court refers again to WZANN. The Court further notes that decisions of the Federal Court are binding on this Court: Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515 at 522 per Spender, Buchanan and Perram JJ; [2009] FCAFC 42 at para.29 per Spender, Buchanan and Perram JJ.
It is fair to observe that, if not a majority, then certainly a very significant minority, of applicants in migration cases before this Court appear self-represented. If the absence of free legal advice or representation were generally accepted as a ground for adjournment of migration judicial review proceedings in this Court then the work of this Court would be significantly impaired by significant delay in the hearing of applications in migration judicial review proceedings contrary to the legislative objects cited above.
There has in the Court’s view been sufficient time to ensure that the applicant, as a self-represented person, prepare and argue his case: Singh v Minister for Immigration & Border Protection [2014] FCA 563 at para.15 per Perry J. The application was filed almost five months ago and orders were made by the Registrar two months ago. Apart from a generalised reference to the assistance from some advocacy groups said to be seeking legal assistance for the applicant, there has been no indication prior to today that the applicant has done anything to prepare for the forthcoming hearing. Moreover, there is no indication when the relevant advocacy groups were approached or why, if they were approached some time ago, they have not been able to advise the applicant on how to represent himself at hearing which is one of the things that he says that they were doing for him or what, in fact, those groups have done to try to obtain legal representation or assistance for the applicant. The Court notes that today it has been said that there are two firms of lawyers prepared to review the applicant’s case. The applicant says that they may also be prepared to represent him at any future hearing. There is, however, no evidence before the Court as to the preparedness of those lawyers to act for or represent the applicant in proceedings before this Court. There is also no indication that those firms have any instructions per se from the applicant or that any endeavour has been made to contact the Minister’s lawyers with respect to the proceedings. The mere fact that there are said to be two firms “prepared to review” the application would also indicate that there is nothing certain about what might happen in the future. Any lawyer or firm of lawyers prepared to act for the applicant would, in light of the Registrar’s orders of 16 April 2014, be under a professional obligation to contact the Minister’s lawyers to indicate that they were considering acting and to seek to approach the Court for some indulgence with respect to the time frames. That is not an unusual occurrence in this Court where firms are prepared to act pro bono and come to act late for an applicant.
It is obviously now some time since the Registrar’s orders were made, requiring the applicant to do certain things in order to comply with those orders. Nothing in the applicant’s affidavit or what has been said today by the applicant would indicate that any steps have been taken to comply with the terms of the Registrar’s orders, or, and this is particularly pertinent to the issue of lawyers being prepared to act for the applicant, to seek an extension of time for compliance with the Registrar’s orders, or to seek an adjournment of the hearing when it was obvious that there had not been compliance, or an ability to comply with, the Registrar’s orders.
Both the delay and the failure to comply with the Court’s orders, together with the failure to take any steps to remedy the non-compliance, particularly in circumstances where the applicant now says that there are lawyers who are prepared to act for him, weigh in the balance against the grant of an adjournment.
There is, further, no explanation as to why, when the applicant knew that Victoria Legal Aid had declined his application for legal aid on 14 May 2014, an adjournment application or an application for extension of time for compliance with the Registrar’s orders was not then made.
The applicant says he now seeks a further eight weeks by way of an adjournment of these proceedings, but there is no specific evidence which would indicate that there will actually be or be likely to be any legal representation afforded to him within that time frame. Notably, none of the advocacy groups to which the applicant generally refers or any of the lawyers to whom he has referred have gone on affidavit to indicate any likelihood of the applicant obtaining assistance within a particular time frame.
The Court also notes that the application for adjournment was made very late. It was filed five weeks after the applicant’s submissions were due to be filed, which they were not, and the day after the Minister’s submissions were filed. The lateness of the application for adjournment has implications in terms of costs. The applicant concedes that he would not be able to pay costs, in any event. And to this extent, the Minister is prejudiced insofar as any costs incurred either on the adjournment application or otherwise might not be recoverable.
In terms of case management, the migration case load of this Court, particularly in the Sydney, Melbourne and Perth registries, is significant, and this is a matter which is being heard out of the Melbourne registry by video-link to Perth. The late making of the adjournment application means that the time allocated for the hearing of the application on Wednesday 18 June 2014 would not be able to taken up by another matter. Inevitably, that means that were the adjournment to be granted, there would be a further delay in respect of another matter being delayed to enable this matter to be heard at a later time because of the adjournment. The Court bears in mind that in that regard, there may be some prejudice to others, including the Court, from the adjournment of this hearing which is sought by the applicant; although, the Court also bears in mind that this will not be a long matter or a matter of several days which would cause significant problems if it were to be adjourned.
In terms of the merits of the matter, the Court can really only have limited regard to the prima facie merits of the application, particularly in the absence of written submissions from the applicant. In terms of the grounds as filed with the original application, it is sufficient to observe that, firstly, it is not obvious that the applicant has been denied procedural fairness on the face of the relevant papers, and, secondly, it is not obvious what wrong legal test the Tribunal might have applied as is alleged by the applicant. There is nothing in that brief overview of the merits which indicates that the applicant has a manifestly arguable case which ought not be denied an opportunity to be heard.
Today, the applicant has raised the issue of the proper interpretation of the Tribunal proceedings. It is the case that if an applicant has had proceedings misinterpreted in a manner which has a significant impact upon the outcome of the proceedings because, for example, the Tribunal has been misled as to relevant facts or claims, or relevant facts or claims have not been put before the Tribunal as a consequence of the misinterpretation, that that has been held to be a denial of procedural fairness by both the Federal Court and this Court: the Court refers to Perera vMinister for Immigration & Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 in the Federal Court and WZAPM v Minister for Immigration & Citizenship [2013] FCCA 266 in this Court, by way of example.
In this case, the applicant has not previously raised the interpretation issue, but has had ample opportunity to do so. He had an opportunity to do so in the original application filed five months ago, when the matter was before the Registrar, and in the applicant’s affidavit filed in support of the adjournment application. And indeed, since then, given that there would doubtless have been no objection to any affidavit material filed in support of such an issue, if filed subsequent to the adjournment application, given the Minister’s obligation to act as a model litigant. Apart, however, from what might best be described as a general reference to procedural fairness in the original application, there has been no hint of an issue as to interpretation or misinterpretation of the Tribunal hearing until today. Further, those issues are not supported by any affidavit material, or any indication as to what the actual interpretation issues are, in circumstances where it appears from the applicant’s submissions today that the transcript of the Tribunal’s hearing has not yet in any event been subject to analysis by an accredited interpreter.
The Court, in coming to a decision on the adjournment application, has regard to the fact that the applicant is an applicant for refugee status under the Migration Act 1958 (Cth) with the inherent strains and stresses that are incurred as a result of that process; and that the applicant does not have English as a first language and requires an interpreter for these proceedings; and that it is fair to infer that the applicant might have difficulty appearing and representing himself and in complying with Court orders. The Court nevertheless notes that the applicant has been able, in the time since making the application, to make an application to Victoria Legal Aid for legal aid, to access assistance from what he describes in his affidavit as several advocacy groups, has had the benefit and knowledge of a Court-ordered timetable, and has been able to file an application in a case for the adjournment, supported by an affidavit sworn by him.
The Court also notes that in the circumstances, and also bearing in mind, what the applicant says about assistance from lawyers, and notwithstanding the assistance given to the applicant, the guidance given to the applicant, and his obvious ability to file an application for an adjournment supported by affidavit, there has been a failure to afford the Minister any indication of the likelihood of an adjournment application prior to it being made, which, as the Court has already indicated, came late in the piece.
The Court has also considered the disadvantage that might be suffered by the applicant as a self-represented person, particularly when the Minister is represented by a lawyer. That is, no doubt, a disadvantage or a prejudice to the applicant, but it is a disadvantage or prejudice suffered by many applicants in migration proceedings, as the Court has earlier explained, and by many parties in proceedings in this Court, not just in migration matters, but in other areas of the Court’s jurisdiction. The mere fact of self-representation and not having English as a first language is not a proper basis without more for an adjournment, particularly in the circumstances of this case where the applicant has, it would appear, had significant assistance throughout the process from certain advocacy groups.
The Court has considered and weighed carefully, and with some degree of anxiety given what is now said with respect in particular to the issue of interpretation, all the considerations which go to whether an adjournment might or might not be granted. In all the circumstances of this case, bearing in mind in particular the legislative objects, the delay and lateness of the application, issues of case management and the failure of the applicant, with the assistance of those who have been assisting him, to take steps with respect to a possible adjournment earlier than he did, the Court is not persuaded that it is appropriate to adjourn the hearing of this matter listed for Wednesday, 18 June 2014. There will, therefore, be an order dismissing the applicant’s application in a case which was filed on 5 June 2014.
The Court will also order that the applicant pay the first respondent’s costs of today in an amount and on a date to be determined.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 23 June 2014
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