SZNXP v Minister for Immigration

[2010] FMCA 195

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNXP v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 195

MIGRATION – Application for injunction to restrain Minister from removing applicant – where matter had been finalised by notice of discontinuance on advice of barrister in the Minister’s Legal Advice Scheme – where applicant had filed notice almost 3 months after advice given – where applicant alleged that advice had been inadequate and ultimately incorrect – whether applicant entitled to a second opinion – power to set aside notice of discontinuance considered – whether arguable case.

Migration Act 1958 (Cth), ss.48A, 48B, 417, 429

SZAWY v Ministerfor Immigration (2006) 229 ALR 423
SZFOZ v Minister for Immigration [2007] FCA 1137
Castanho v Brown and Root (UK) Ltd [1981] AC 557
Applicant A26 of 2002 v Minister for Immigration [2003] FCA 1050

Applicant: SZNXP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2287 of 2009

Judgment of: Raphael FM

Hearing date: 19 March 2010

Date of Last Submission: 19 March 2010

Delivered at: Sydney

Delivered on: 19 March 2010

REPRESENTATION

For the Applicant: Mr J Kennedy

For the Respondents: Mr Z Chami

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. No order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2287 of 2009

SZNXP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me this afternoon an urgent application by applicant SZNXP for an injunction to restrain the Minister for Immigration and Citizenship from removing him from Australia.  The applicant is a person who claimed that Australia owed him protection obligations.  He was apparently taken into immigration detention upon his arrival in Australia in April 2009.  On 14 May 2009, following a hearing, a delegate of the Minister refused to grant a protection visa and so the applicant applied for review of that decision from the Refugee Review Tribunal.  The Tribunal made its decision on 27 August 2009 affirming the decision of the delegate.  On 18 September 2009 the applicant filed an application with this Court seeking review of the decision of the Tribunal, claiming that it had fallen into jurisdictional error because it:

   “… allowed, in the absence of the appointed migration agent, an individual who was present only as an observer to question the witness in the case.  The applicant has not been asked for permission for this questioning to take place.”

2. The proceedings in this Court went through the usual processes.  On 8 October 2009, Registrar Chuan Ng made orders, including requiring the respondent to file a bundle of relevant documents by 22 October, and listed the matter for hearing on 8 February before me.  The applicant was asked whether he wished to take advantage of the Minister’s scheme, whereby legal advice is provided to persons in his position by members of the bar or solicitors experienced in this field.  These advisors are required to adopt a protocol which includes them listening to the CD of the Tribunal hearing, meeting with the applicant and preparing an opinion.  All that was done for this applicant by a barrister whose name I do not believe needs to be referred to in these reasons, but who is known to the Court as experienced in the field. 

3. That barrister gave certain advice to the applicant which is no longer privileged because a copy of his advice is annexed to the affidavit of the applicant, sworn on 19 March 2010 and filed in this application. The gravamen of the advice was that the barrister did not believe that the Tribunal had fallen into jurisdictional error in the manner in which it had reached its decision and that the applicant would be best advised to apply to the Minister under s.417 of the Migration Act 1958 (Cth) (the “Act”)  for discretionary relief.  It is said on behalf of the applicant today that the barrister only advised on the basis of the application that had been filed, which contained the ground I have already extracted, but in fact this is not the case. 

4. The barrister advised both upon that matter and upon the suggestion that the Tribunal hearing had not been “conducted in private” as required by s.429 of the Act because Mr Killalea, a migration agent and solicitor, had been present. Leaving aside the restrictions upon a suggestion of that nature, found in the decision of the High Court in SZAWY v Ministerfor Immigration (2006) 229 ALR 423 (“SZAWY”), it would appear clear, from the advice that I have seen, that the Tribunal asked the applicant three times whether he was happy that Mr Killalea be present in the room and the applicant agreed. The applicant appeared to have accepted the advice of the barrister and on 3 February 2010 filed a notice of discontinuance with this Court. 

5. He then made an application under s.417 to the Minister. On 17 March 2010 the Department responded advising that the Minister declined to consider exercising his s.417 powers in the case, and that the Department had considered the possibility of exercising Ministerial powers under s.48B to allow the applicant to make a further application under s.48A and it had been decided that, as the applicant had not met the guidelines set by the Minister, the matter would not be referred to him. On 18 March 2010, the applicant was served with a notice of removal from Australia. Such removal is due to take place on 22 March.

6. It would appear that throughout the applicant’s stay in the Villawood Detention Centre he has had the aid of Mr Kennedy, who is a solicitor of the Supreme Court, but who, I understand, does not practice in this field, and who gave assistance to the applicant as an act of charity, in the true sense of that word, rather than as a legal adviser.  It is Mr Kennedy who assisted the applicant to prepare the application that I am now deciding and who made representations on the applicant’s behalf in support of it. 

7. Shortly before the case came before me there was filed an application and an affidavit.  The application sought the interim injunction that I have previously referred to in order to prevent the applicant’s removal and that the notice of discontinuance which was filed on 3 February 2010 be set aside on the grounds that were contained in the application.  Those grounds indicated that it was believed that the filing of the notice of discontinuance had given rise to a denial of natural justice because:

   “... it was filed on the basis of inadequate and ultimately incorrect advice provided by a lawyer appointed by the panel of the RRT Legal Advice Scheme.

   The discontinuance referred to in order number 2 above has given rise to a denial of natural justice to the applicant in that he was not provided with the opportunity to get a second opinion on the merits of his case.”

8. The grounds of application then go on to say why the applicant believed that there was a jurisdictional error.  The first matter is that contained in the original application, namely, the Tribunal allowing Mr Killalea to question the witness.  The second ground relates to what are described as “serious communication errors” that were material to the final outcome, including difficulties with the interpreter.  The third ground relates to the Tribunal erring in allowing a Mr Peters, an uncle of the applicant, to speak on behalf of the applicant without his consent.  And there are two other grounds which are of a general nature and which are not particularised.

9. By the time the matter came before me today I had had an opportunity to read the decision of the Tribunal.  I did not have a copy of the transcript, though I understand one exists, and I have not heard the tape.  Mr Chami, who appears on behalf of the Minister, reminds me correctly that there are a number of hurdles that the applicant must overcome before I can grant the injunction requested.  I must be satisfied that there is an arguable case, and I must be satisfied that the balance of convenience favours the grant of the injunction. 

10. Having heard Mr Kennedy and read the affidavit of the applicant, and accepting all that he says there as correct for the purposes of this hearing, I do not think that the applicant has established to my reasonable satisfaction that there was any serious problems with the interpretation.  One of the things that the applicant claims is that he is suffering from post-traumatic stress disorder and that this gave rise to the confusion which he experienced at the hearing before the Tribunal, and that included and overflowed into the problems with the interpretation.  It is fair to say that the Tribunal, which was made up of a very experienced member, deals at some length with the applicant’s claim about his ability to participate effectively in the hearing before the Tribunal.  The Tribunal’s views on this matter are contained at [73-76] [CB 352-353].  It is neither alleged, nor do I believe that it could be, that the Tribunal fell into jurisdictional error in the manner in which it considered that particular aspect of the matter.  The Tribunal was presented with certain medical evidence, which my reading of the reasons indicates did not refer to the applicant’s ability to attend the hearing, only to his suffering from this disorder based upon the history that the applicant had outlined to the psychologist. 

11. I have already indicated why I am of the view that the applicant’s claims concerning s.429 of the Act are unarguable. I have little doubt that the facts in this case would fall neatly within those that would be affected by the High Court decision in SZAYW, even if the applicant had not clearly given the Tribunal an indication that he was happy that Mr Killalea attend.

12. I also have serious concerns about the suggestion made in the draft amended application that there was a jurisdictional error on the part of the Tribunal by the applicant not being allowed to have a second legal opinion on his case.  This has nothing whatsoever to do with the Tribunal; it was a matter entirely out of the Tribunal’s control.  It did not constitute a fraud on the Tribunal.  Legal representation in these matters is a privilege, not a right.  It would be well if every applicant before this Court did have the benefit of legal advice and legal representation, but given the numbers of people who do apply for Australia’s protection, it is hardly likely that such a state of perfection would exist.  In this particular case, the applicant is asking not for one legal advisor, but for two.  He had one, whose advice he is happy to place before the Court for the Court to give its own views upon.  For what it is worth, the Court’s views are that the advice would appear to be entirely in order.  I am unable to see how the giving of the first piece of advice prevented the applicant from obtaining a second.  He did not pay for the first.

13. The notice of discontinuance which was filed by the applicant was a voluntary act on the applicant’s behalf.  Certainly, it was influenced by the advice given to him, but the act of filing the notice was undertaken on 3 February 2010 whereas the advice was received on 12 November 2009.  It could not be said, and I do not believe it is said, at least in the evidence provided to me, that this barrister’s influence was so pervading that it lasted all those months before the applicant made what he would have to say was a non-independent decision to file the notice.

14. Having filed the notice in a manner that was, so far as the evidence appears to me, voluntary, the applicant comes up against the decision of Ryan J in SZFOZ v Minister for Immigration [2007] FCA 1137. At [17] his Honour explained there were no relevant provisions of the Federal Magistrates Court rules that empower the Court to set aside a notice of discontinuance or reinstate proceedings which have been regularly discontinued in accordance with the rules. Such an action could only occur in the type of circumstances envisaged by the House of Lords in Castanho v Brown and Root (UK) Ltd [1981] AC 557 per Lord Scarman at [571] that was referred to with approval in Applicant A26 of 2002 v Minister for Immigration [2003] FCA 1050 per Mansfield J at [2] and [5]. There is nothing more I have heard today that would indicate that the notice of discontinuance was filed contrary to the applicant’s instructions or in ignorance of its effect.

15. The applicant filed the notice so that he could proceed immediately to a s.417 application, he probably having been informed that the Minister would not consider such an application whilst there were still processes extant it in the federal courts. Under those circumstances, the Court is powerless to reinstate as requested by the applicant. That being so, I must come to the conclusion that there are no reasonable prospects of success should I grant the injunction and should the applicant be allowed to argue his case at greater length before some other federal magistrate.

16. If there are no prospects of success, the question of the balance of convenience does not really enter into it.  The Court is grateful to Mr Kennedy for the speed with which he has acted on behalf of the person who now has become his client.  I am grateful to Mr Chami and those who appear for the Minister for being prepared to come to Court so quickly and present arguments in their usual efficient, effective but brief manner.  I dismiss the application for the injunction.  I understand from Mr Chami that costs are not sought.

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

Associate: 

Date:  24 March 2010