SZMBL v Minister for Immigration
[2008] FMCA 1162
•8 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMBL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1162 |
| MIGRATION – Practice and procedure – application for judicial review of RRT decision – legal representation of witness – migration agent subject to allegations of fraud – not a necessary party – not permitted to make submissions on evidence – permitted to be represented in applications arising from status as witness. MIGRATION – RRT decision – allegation of fraud by migration agent – previously expressed judicial concerns about agent – whether reasonable apprehension of bias – no application for reconstitution – a change of docket not ordered. |
| Evidence Act 1995 (Cth), ss.18, 128 Judiciary Act 1903 (Cth), s.78 Migration Act 1958 (Cth), s.476 |
| Annetts v McCann (1991) 170 CLR 596 Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577 Forestry Tasmania v Brown (No 2) (2007) 159 FCR 467 Livesey v The New South Wales Bar Association (1983) 151 CLR 288 Marsdenv Amalgamated Television Services Pty Ltd [2000] NSWSC 238 Marsdenv Amalgamated Television Services Pty Ltd [2000] NSWSC 238 News Ltd v The Australian Rugby Football League Ltd (1996) 64 FCR 410 R v Andrews (No.3) [2005] SASC 298 Sharman Networks Ltd v Universal Music Australia Pty Ltd (2006) 155 FCR 291 SZFDE & Ors v Minister for Immigration & Citizenship [2007] HCA 35 SZHVN v Minister for Immigration & Citizenship [2008] FCA 600 SZIVK v Minister for Immigration & Citizenship [2008] FCA 334 SZLOY v Minister for Immigration (No. 2) [2008] FMCA 450 SZMBG v Minister for Immigration [2008] FMCA 792 Vakauta v Kelly (1989) 167 CLR 568 WABZ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 134 FCR 271 |
| Applicant: | SZMBL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 661 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 8 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the First Respondent: | Ms V McWilliam |
| Solicitors for the Respondents: | DLA Phillips Fox |
| Counsel for Mr R Solaiman: | Mr L Karp |
ORDERS
The applicant must file and serve any amended application and additional affidavits no later than 29 August 2008. No later evidence in chief shall be admitted without the leave of the court.
The first respondent must file and serve all affidavits on which he relies no later than 12 September 2008.
The applicant must file and serve any affidavits in reply no later than 26 September 2008.
The application is listed for final hearing on 12 November 2008 at 10.15 a.m. at Court 6D, Level 6, John Maddison Tower, 88 Goulburn Street, Sydney (2 days allowed).
Any party may request that the proceeding be listed for further directions or for the hearing of an application in a case on a date allowing 5 clear days’ notice to the other parties. The appointment shall be obtained from the Associate on 9377 5528.
The applicant must file and serve in the Registry a short written outline of submissions and list of authorities 7 days before the hearing.
The first respondent must file and serve a short written outline of submissions and list of authorities 3 days before the hearing.
Raymond Solaiman is not included as a party in the proceeding.
The subpoena issued on 17 July 2008 requiring the attendance of Raymond Solaiman to give evidence is adjourned to the hearing.
Any application by Raymond Solaiman in respect of any right or privilege as a witness in the proceeding may be made by him or his legal representative at the hearing.
The application in a case filed on 6 August 2008 by Raymond Solaiman is otherwise refused.
Costs in relation to today’s listing are reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 661 of 2008
| SZMBL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The principal application in this matter is an application made under s.476 of the Migration Act, seeking orders quashing a decision of the Refugee Review Tribunal and remitting the matter, being the applicant’s eligibility for a protection visa, to the Tribunal for determination according to law.
One of the grounds of the application invokes principles established by the High Court in SZFDE & Ors v Minister for Immigration & Citizenship [2007] HCA 35. In that judgment, the High Court held that a Tribunal's decision may be invalid if a ‘fraud’, understood in a broad sense, adversely affected an applicant's involvement in the review proceeding in the Tribunal, and “had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to that person” (see SZFDE at [49] and [51], and note the discussion of recent authorities by Middleton J in SZHVN v Minister for Immigration & Citizenship [2008] FCA 600).
The present application alleges that the applicant's migration agent employed in the proceedings before the Tribunal, Mr Raymond Solaiman, conducted himself in relation to the applicant's involvement so as to give rise to a ground of invalidity of the Tribunal’s decision coming within SZFDE.
The particulars of his alleged conduct were not fully indicated in the application. I therefore gave directions at the first Court date on 8 April 2008 to allow the applicant to present his evidence in affidavits, and to amend his application so as properly to particularise this ground of review. His evidence was only filed on 21 and 29 July 2008, long after the time provided in the timetable, and only shortly before the final hearing which I had appointed for yesterday, 7 August 2008. This evidence consists of one affidavit sworn by the applicant which narrates various actions by Mr Solaiman which are claimed to have adversely affected his case before the Tribunal.
In view of the applicant’s failure to comply with the timetable, the first respondent, the Minister, applied to the Court for a directions hearing to have the hearing vacated, so that the first respondent’s representatives could have a proper opportunity to take instructions and make difficult decisions about what evidence to present in response to the applicant's evidence. On 5 August, I acceded to that request and vacated the hearing, awarding costs against the applicant.
At the direction’s hearing on 5 August, counsel for Mr Solaiman appeared and made two oral applications. These were first, that I should disqualify myself from conducting the proceedings, at least at the final hearing stage. Secondly, that counsel should be allowed to represent Mr Solaiman at the final hearing in a manner which was not clearly indicated.
I was concerned that neither application had been properly presented to the Court and to the parties, and declined to address them on that occasion. Rather, I made directions for the applications to be made by an application in a case and affidavit, and appointed today to hear such an application. I also noted a subpoena which the applicant had caused to be issued on 17 July, requiring Mr Solaiman to attend the hearing appointed for yesterday, both to give evidence and produce documents. With the agreement of all representatives, I adjourned the subpoena in relation to production of documents to today, and I adjourned for further directions the subpoena to attend and give evidence. Some documents have been produced in response to the subpoena to produce, and it seems a copy of these have also been given informally to the parties' representatives. These documents will not become evidence in the proceeding, unless they are tendered by a party and admitted by the Court.
In relation to my continuing to constitute the Court in the proceeding, Mr Solaiman did not file an application seeking my disqualification. Nor was such an application made orally today by his counsel, or by either of the representatives for the parties to the proceeding. It is, however, appropriate for me to record the basis for the application which was foreshadowed last Tuesday, and to indicate my reasons for not disqualifying myself on my own motion.
The foreshadowed application was based upon statements made by me in two recent judgments, in which I dismissed applications for judicial review brought by two of Mr Solaiman’s clients. The first was SZLOY v Minister for Immigration (No. 2) [2008] FMCA 450, where at [11] and [16] I identified a concern arising from sworn evidence given by the applicant in the course of the hearing in that matter. My concern was that Mr Solaiman might have assisted the applicant to present an improper affidavit and application to the Court, and might also have performed legal work without being a legal practitioner. I referred this evidence and my concern to the District Registrar for forwarding to an appropriate authority for investigation. In my opinion, it is clear from my judgment that I made no findings myself about Mr Solaiman’s conduct. An informed lay observer would have understood the provisional nature of my expressions of concern, particularly since I was not required to make any findings about Mr Solaiman’s conduct in that proceeding, and there was no evidence as to Mr Solaiman’s possible responses to the evidence of his former client.
Similar concerns arose from evidence given by another applicant, and were similarly referred by me to the Registrar in SZMBG v Minister for Immigration [2008] FMCA 792 at [14].
Counsel for Mr Solaiman inaccurately cited the first of these judgments last Tuesday, and I then drew the parties' attention to the correct citation of both judgments. As I have indicated above, there is today no application by a party that I disqualify myself from the present matter. Mr Solaiman’s counsel did not seek to persuade me that he has standing to make such an application, nor that I should disqualify myself on my own motion.
This situation might be enough for me to let the issue pass without further comment. However, I shall record that I have independently considered how principles of apprehended bias have been applied in possibly analogous situations, such as was referred to in Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 293-294 and 300. That case is distinguishable because, as I have indicated, it would be apparent to an informed observer that I have not, in fact, formed any views about the credibility of Mr Solaiman as a witness, nor as to his conduct as a migration agent, either in general or on any issue, whether relevant to the present proceedings or not. The concerns which I referred to the Registrar, were proper concerns for the Court to take note of, since, if found by a relevant authority to be supported, they were an affront to the Court's processes. In this context, I do not consider that anything which I said in my judgments might suggest to an informed lay observer that I might have arrived at preconceived opinions about any issue which might fall for my judgment in the present proceedings concerning Mr Solaiman's evidence or conduct (cf. Vakauta v Kelly (1989) 167 CLR 568 at 571).
Applying the general test of apprehended bias, which was recently applied in Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577 at 609, I do not consider that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I will be required to decide in this proceeding. I therefore propose to allow the matter to continue in my docket and to remain the trial judge in the matter.
Mr Solaiman did file on 6 August 2008 an application in a case seeking an order “That Raymond Solaiman be given leave to have separate legal representation at the hearing of this matter”.
An order in those terms is, in my opinion, of such uncertainty that the Court would not make it. I therefore endeavoured to discover what status was being claimed by Mr Solaiman in relation to the present proceeding, and what involvement by his legal representative was being sought.
His counsel's submissions about this were not clear. At one point, I thought he was making an informal application that Mr Solaiman be joined to the proceedings as a respondent pursuant to Pt.11 of the Federal Magistrate's Court Rules 2001 (Cth) as a ‘necessary party’. Under r.11.01:
A person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding.
This rule, and the other rules concerning joinder in this Court and the Federal Court, invokes a concept of ‘necessary parties’ to adversarial litigation which is settled. The leading authority in the Federal Court is News Ltd v The Australian Rugby Football League Ltd (1996) 64 FCR 410, where at 525 the Full Court confirmed a test which distinguishes between persons with commercial or personal or other indirect concerns in factual issues which might fall to be addressed in a proceeding, and persons whose legal rights or liabilities would be directly affected by the Court's judgment. Only the latter persons are entitled to be joined as ‘necessary’ parties. The test of being affected in relation to legal rights is plainly narrower than the broad concept applied in relation to rights of procedural fairness in administrative inquiries. The Court, in my opinion, is not required to give Mr Solaiman rights of involvement in the present proceedings upon principles of administrative law considered in the High Court in Annetts v McCann (1991) 170 CLR 596 at 599 and 601, to which I was referred by counsel for Mr Solaiman.
The distinction between administrative proceedings giving rise to obligations under procedural fairness for a person to be heard and judicial proceedings in a Chapter III Court, was recently referred to by Finkelstein J in SZIVK v Minister for Immigration & Citizenship [2008] FCA 334, in the same context in which I must decide the present application for representation. That is, where a migration agent has been identified in an allegation that a Tribunal’s decision on a protection visa is invalid under the principles of SZFDE. At [22]-[25] his Honour said:
[22] In the absence of a detailed explanation it is difficult to know what legal justification the Magistrate had in mind in declining to deal with the case raised by the appellant. What the Magistrate said (at [36]) was that, without the migration agent being put on notice about the allegations of fraud and being given an opportunity to tell his side of the story, it was improper to make an adverse finding of fact against him. There is a rule (an aspect of procedural fairness) that, subject to statutory exceptions, an administrative decision-maker must provide an opportunity for a person to be heard before a decision is made that destroys, defeats or prejudices that person's rights, interests or legitimate expectations: see eg Kioa v West (1985) 159 CLR 550 at 584; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653. Accordingly, findings adverse to the interests of a person will not be made without first providing the person an opportunity to be heard: Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 315 and 324; Annetts v McCann (1990) 170 CLR 596 at 599-601. A person's reputation is protected by the rule: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 577-578.
[23] The rules of procedural fairness applicable in administrative tribunals apply, usually equally, but sometimes with greater force, in curial proceedings. But the procedures in the two fora are not entirely the same and the rules must be modified to take account of the differences. One difference is that curial proceedings are adversarial whereas administrative proceedings usually are not. Being adversarial, in curial proceedings it is the parties, not the decision-maker, that define the issues to be contested, select the witnesses they intend to call, choose the evidence they wish to lead and to which they intend to object, and decide which arguments will be pursued and which will be abandoned: Jones v National Coal Board [1957] 2 QB 55 at 63-64; Ratten v R (1974) 131 CLR 510 at 517; Crampton v R (2000) 206 CLR 161 at 173; Dhanhoa v R (2003) 217 CLR 1 at 9; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at 393.
[24] It is common for parties locked in adversarial litigation to make all sorts of allegations to advance their own cause. If the opposite party is criticised he can be called to rebut the criticism. If a third party is criticised, he can be called by one of the parties. In both circumstances the individual who has been criticised will have the opportunity to rebut the criticism.
[25] But it is often the case that a third party is criticised and not called as a witness. The reason he is not called, assuming him to be available to give evidence, is that the party who may be adversely affected if the criticism is accepted has made a decision not to call that person. That is the party's right. In some cases the exercise of that right may lead to an adverse inference being drawn against that party. However that may be, there is no rule to the effect that the criticised person must be given notice that he is to be attacked in evidence to be given. There are good reasons why there is no such rule. As I have explained, it follows from the adversarial nature of our trial system. In any event, even if given notice there is usually nothing the third party can do. He cannot demand that he be permitted to give evidence. If that were the position, trials would become unmanageable. In limited circumstances a judge may allow a non-party to be heard: see eg r 2.13 of the Federal Court (Corporations) Rules 2000 (Cth). But the circumstances in which leave will be granted are rare.
His Honour concluded that there was no justification for this Court to refuse to decide a contention under SZFDE on the ground that a migration agent had not been given notice of the allegations about his or her conduct.
In my opinion, the foundation for his Honour's reasoning is that the migration agent has no legal interest which is brought into issue in a proceeding under s.476 of the Migration Act concerning the validity of a Refugee Review Tribunal's decision. Such a proceeding does not involve any cause of action of a civil nature against the agent, it does not involve any criminal prosecution of the agent, and it does not involve any disciplinary consequence for the agent. The migration agent is a stranger to the proceeding, in a legal sense.
The rules and practices of courts which normally refuse a person permission to assume the role of a party if he or she is not a ‘necessary party’, can operate for the advantage of such a person, and not to their disadvantage. This is due to the legal effect of a person’s involvement in a judicial proceeding as a party, upon the pronouncement of judgment in the matter. The judgment has legally conclusive effects on a party under principles of res judicata and issue estoppel, but has no legally binding effects on a stranger, even one who was a witness. It would usually be contrary to the interests of a migration agent to be given the status of a party in a matter such as the present, if this would result in the agent becoming bound by the court’s findings about his or her conduct, unless a claim on a cause of action seeking to impose a legal liability on the agent were clearly part of the proceeding. The Court's processes could be embarrassed if there is ambiguity about this.
In the present proceeding, the applicant has disclaimed invoking the Court's associated or related jurisdictions, so as to seek any relief against Mr Solaiman. There is no cross-claim by the Minister seeking relief against him. The matter before the Court is purely an application for relief in the nature of Constitutional writs relating to the Tribunal’s decision, and Mr Solaiman has no legal interest in upholding or disputing the validity of that decision. In my opinion, on the authorities I have cited above, he is not a necessary party, and it would not be appropriate to join him as a respondent to the proceeding, nor to give him the same rights of participation as if he were a party.
There are exceptional circumstances where courts allow persons who are not necessary parties to participate in proceedings as an intervenor or amicus curiae (cf Sharman Networks Ltd v Universal Music Australia Pty Ltd (2006) 155 FCR 291 at [5] and [11]). There may be doubts how far an inferior court has inherent power to permit this, absent any statutory provision. In the present situation, there is no specific right of a migration agent to intervene in a s.476 application conferred by any statute, and the Federal Court rules adopted by our rules would not seem to be applicable (cf. Forestry Tasmania v Brown (No 2) (2007) 159 FCR 467 at [10]). In any event, Mr Solaiman’s counsel did not seek to support his application by reference to any statutory or implied power to permit the involvement of an intervenor or amicus curiae.
Mr Solaiman’s present application to be permitted ‘legal representation’ therefore appears based upon his status in the proceedings which is no more than a stranger who may be called, voluntarily or under compulsion, to give evidence as a witness in support of the case of one of the parties. Somewhat surprisingly, I was referred by counsel to little by way of legal authority which addresses the occasions on which a witness or potential witness is allowed legal representation and the nature of such representation. No doubt, the usual role of a witness, i.e. to give such testimony as the parties require and the court allows, requires a personal involvement in a trial which cannot be delegated to a representative, so that the normal inference of a right to act through an agent cannot apply. However, a witness might also wish to be heard through a legal representative about matters incidental to his or her giving of testimony.
There can be no assumption of any person’s right to be legally represented in court proceedings, in the absence of express or implied statutory rights or judicial powers or discretions. It has been suggested that there is no common law entitlement to legal representation in criminal or civil cases (cf. WABZ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 134 FCR 271 at [96]). Such entitlements have, therefore, been conferred by statute. In this Court a right of legal representation arises under s.78 of the Judiciary Act 1903 (Cth) and s.44 of the Federal Magistrates Act 1999 (Cth), but this is conferred only on a "party". I accept that the concept of a ‘party’ in these provisions might encompass a person who is not a necessary party to the principal application, but has a right to be heard in an incidental or interlocutory application. However, this would not convert such a person into a ‘party’ whose legal representative can participate in a final hearing in the principal matter as if they were a necessary party.
There are, however, suggestions in authorities that a person whose involvement in a proceeding is that only of a witness or potential witness, whether under subpoena or otherwise, might at times have rights to make an application to the Court or be otherwise heard in relation to that person's involvement as a witness, and which might appropriately be recognised in the Court by receiving applications or submissions from a legal representative.
A clear example where this would seem to be implicit is found in the Evidence Act 1995 (Cth), s.128, which gives a witness the right to claim privilege and obtain immunity in relation to incriminating evidence. The Evidence Act also contains other provisions appearing to give rights to witnesses to have the Court make particular rulings or orders for their benefit, where it might seem appropriate for the Court to recognise a right of representation for the purposes of making such applications. Counsel for the Minister referred me to cases where representation was permitted for a witness to apply to be exempted from compulsion to give evidence against a spouse or close relative (see R v Andrews (No.3) [2005] SASC 298 at [7]), and to seek a pseudonym order (see Marsdenv Amalgamated Television Services Pty Ltd [2000] NSWSC 238 at [13]).
In my opinion, this Court would have the power to permit a legal representative to make or be heard on these and similar applications on behalf of a witness. I would locate its source implicitly in the legal rules which require or allow applications by or concerning witnesses, and in the incidental procedural powers of the Court. However, I do not propose to make any specific ruling about legal representation by Mr Solaiman at this stage of the present proceeding. This is better left to be determined in the course of the final hearing, if the occasion for such an application arises.
Mr Solaiman's counsel also sought a more extended right of representation in relation to any evidence concerning Mr Solaiman’s conduct as a migration agent. He did not seek the right to adduce or test the evidence of any witness. However, he sought to be heard by way of submission on possible findings by the Court on issues concerning Mr Solaiman's credit and conduct, both if he is called as a witness and if he is not.
No authority for allowing such involvement by a witness, whether or not through a legal representative, was cited. On principle, in my opinion, it would not be appropriately allowed. Such rights are those only of a party under our adversarial system, and a non-party has never, in my experience or understanding, been given a right to be heard in submissions on the evidence tendered or admitted in a proceeding, because of a concern that the judge’s findings might reflect adversely upon a non-party’s conduct. Without making a conclusive ruling at this stage, I would not be disposed to allow Mr Solaiman or his representative any opportunity to be heard on what evidence should be admitted nor what findings should be made about his conduct relevant to the applicant’s SZFDE ground of jurisdictional error.
It is well established that a judge when giving a judgment having possible defamatory consequences on a person who is not a party to the proceedings will be cautious not to make findings which are not essential to the matter for determination, and will endeavour not to cause avoidable injury to parties and non-parties. Sometimes adverse findings about non-parties are not avoidable, but such findings would not have any legal effect in relation to that person's rights. It would always remain open to that person to contest the same evidentiary issues if they arose later in civil, criminal or disciplinary proceedings brought by or against the non-party. In my opinion, in a case such as the present, it would usually be in the interests of a migration agent that his detachment from the proceeding should be preserved, rather than be compromised as a result of an ambiguous involvement in the trial through the participation of a legal representative.
For the above reasons, I shall refuse the application in a case brought by Mr Solaiman, except to the limited extent that I have indicated above.
Today's listing has also addressed the future course of the proceeding leading to a final hearing. I would expect the new timetable to be observed.
I shall reserve questions of costs in relation to today’s listing.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 27 August 2008
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