SZLOY v Minister for Immigration and Anor (No.2)

[2008] FMCA 450

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLOY v MINISTER FOR IMMIGRATION & ANOR (No.2) [2008] FMCA 450

MIGRATION – RRT decision – application for judicial review dismissed at show-cause hearing – abusive application to vacate order – application refused.

Federal Magistrates Court Rules 2001 (Cth), rr.16.05(2)(c), 44.12(1)(a)
Migration Act 1958 (Cth)

SZLOY v Minister for Immigration [2008] FMCA 97
SZLRR & Anor v Minister for Immigration (No. 2) [2008] FMCA 422

Applicant: SZLOY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3402 of 2007

Judgment of: Smith FM

Hearing date: 1 April 2008

Delivered at: Sydney

Delivered on: 1 April 2008

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms L Buchanan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The notice of motion filed on 17 March 2008 is dismissed.

2. The applicant must pay the first respondent’s costs of that application in the amount of $600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3402 of 2007

SZLOY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application which seeks an order setting aside an order I made on 29 January 2008, dismissing the substantive application on the ground that it did not raise an arguable case for the relief claimed.

2. The applicant had attended a first court date before me on 27 November 2007.  In accordance with the Court's normal procedures, he was given an information sheet concerning a free legal advice scheme, and he completed a request to be referred to a lawyer under that scheme.  These documents were in English, but an interpreter was in attendance to translate them to the applicant.  In the orders which I made on that date, there was provision for the Court's registry to send the applicant a letter giving him the contact details of the free legal adviser.  I explained this to the applicant, and am confident that what I said was translated to him. 

3. The applicant now denies that the interpreter translated the information sheet and request form to him.  I have doubts about this, but am unable to make clear findings about that.  The applicant has, however, told me that he has a friend who was able to translate English documents to him.  I see no reason why he could not have used his friend to translate the documents which he received during his attendance at court, including my orders, if he was unclear as to their contents.

4. The orders made on 27 November 2007 also included a timetable under which the applicant was sent a bundle of relevant documents, and was then given time to obtain advice and to file an amended application with any evidence, before his case was listed on 29 January 2008 for a hearing under r.44.12 on whether his application raised an arguable case for the relief claimed. 

5. I am confident that the effect of the order for a show-cause hearing, and in particular the warning that the application might be dismissed if the Court was not satisfied that it raised an arguable case for the relief claimed, was translated to the applicant.   This is because it is my invariable practice at first court dates to request the interpreter to translate the sentence in capital letters in Order 7 to applicants appearing in person. 

6. The Court's correspondence file indicates that the applicant was sent a letter dated 29 November 2007, informing him that Mr David Prince of Kah and Associates, Solicitors, had been appointed as the next adviser on the panel list to give him advice. 

7. The applicant, in his sworn evidence today, agreed that he received the letter containing the name and contact details of the free adviser.  He also denied that he read the letter.  He did, however, admit that he attended on Mr Prince on 20 December 2007, when he was given oral advice about his case in this court.  The content of Mr Prince’s advice is privileged, and has not been disclosed to the Court by the applicant.  I note that the holding of this conference is also confirmed by an email to the legal panel administrator from Mr Prince, which says:

   Detailed oral advice was provided to the applicant at that time of our face-to-face meeting. 

   The applicant's evidence under oath today is consistent with that statement. 

8. On 29 January 2008, the applicant attended at the show-cause hearing, where he was assisted by an interpreter in a language he understood.  He had not filed any amended application before that date, and had no documents to submit to the Court to show an arguable case for the relief claimed.  In an oral judgment which was translated to applicant, and which was subsequently revised and published as SZLOY v Minister for Immigration [2008] FMCA 97, I explained my reasons for dismissing the application under r.44.12(1)(a) on the ground that it did not raise an arguable case for relief claimed.

9. On 17 March 2008 a document headed “Notice of Motion” was filed in this court in the proceeding, seeking that the orders I made on 29 January “be vacated”. Presumably the author of the document had in mind the Court's power to set aside interlocutory orders under r.16.05(2)(c).

10. The application was accompanied by a document purporting to be an affidavit, which the applicant today agreed that he had signed.  However, he gave evidence that he does not read English, that he did not read this document, and that it was not read to him in his own language, before he signed it.  It does not bear a proper jurat to indicate that it was translated to the applicant in accordance with r.15.27(2) and the approved form of affidavit.  It was, therefore, not properly made and should not have been filed. 

11. Although the notice of motion and the affidavit purport to have been prepared by the applicant acting for himself, he gave evidence under oath that, in fact, the affidavit was prepared, and he was invited to sign it by a migration agent, Mr Raymond Solaiman.  This is the same person who assisted the applicant to lodge his protection visa application, which was filed and lodged with the Department of Immigration on 30 April 2007.  Mr Solaiman at that time also assisted 21 other members of the Rajasthan Indoor Cricket Federation to make identical applications.  I conclude that Mr Solaiman has been continuing to advise the applicant, including by assisting him in the conduct of legal proceedings in this Court, and by preparing documents for filing in this court.  That is a matter of concern to me, if he does not hold a certificate to practise as a legal practitioner. 

12. Also of concern to me is the content of the purported affidavit.  Paragraph 1 states:

    On 27 November 2007 His Honour Smith FM passed an order that ‘The Court’s Registry will refer the applicants to a lawyer in the NSW RRT Legal Advice Scheme panel on or before 4^th December 2007’.  Accordingly I received a document about information on legal advice scheme.  The court also ordered to file amended application on or before 22 January 2008.  I was under impression that after the order of the Honourable Court I will be provided with legal assistance and my amended application will be submitted by the government appointed lawyers.  Nevertheless the order of the Court I was not provided with any advice and on 29 January 2008 his honourable Smith FM dismissed my application under Rule 44.12(1)(a) as I could not represent an arguable case.

13. As I have indicated, this paragraph contains a false statement that the applicant was not provided with any advice under the free legal advice scheme administered by the Federal Court’s Registry.  The applicant's evidence on oath was directly inconsistent with the contents of his purported affidavit.  For that reason, the application has been brought on a false basis.

14. No other reason is presented for vacating my previous order. The applicant today had no submissions to show that, in fact, he has an arguable case for judicial review of the decision of the Refugee Review Tribunal, and I remain of the opinions I expressed in my earlier judgment. 

15. I see no reason to disturb the orders I made on 29 January 2008, and the present application is therefore dismissed. 

16. I am concerned about the bringing of this unmeritorious application, since it is in identical terms to an application which was before me last week, which also was supported by a false assertion that legal advice had not been given (see SZLRR & Anor v Minister for Immigration (No. 2) [2008] FMCA 422). It appears to me that the present application is essentially abusive in nature, and is designed solely to protract litigation in this Court. I am concerned that Mr Solaiman appears to be assisting the bringing of such applications. I therefore propose to direct the District Registrar to forward a copy of this judgment to the appropriate authorities in relation to the regulation of legal practitioners and migration agents.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  11 April 2008