SZRUR v Minister for Immigration and Border Protection

Case [2013] FCAFC 146

FEDERAL COURT OF AUSTRALIA

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146

Citation: SZRUR  v Minister for Immigration and Border Protection [2013] FCAFC 146
Appeal from: SZRUR v Minister for Immigration & Anor [2013] FCCA 915
Parties: SZRUR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION AND THE REFUGEE REVIEW TRIBUNAL
File number: NSD 1550 of 2013
Judges: ALLSOP CJ, ROBERTSON AND MORTIMER JJ
Date of judgment: 29 November 2013
Catchwords: MIGRATION – appeal from Federal Circuit Court – self-represented litigant who could not speak or read English –  where primary judge did not explain procedure to self-represented litigant, including that the Court would not act on statements from the bar table and that his allegation of fraud against his migration agent would fail in the absence of evidence as such
Legislation: Migration Act 1958 (Cth) s 426A
Cases cited:

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Hamod v State of New South Wales and Anor [2011] NSWCA 375
Macleod v R [2003] HCA 24; (2003) 214 CLR 230
Marcolongo v Chen [2011] HCA 3; (2011) 242 CLR 546
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501

1  Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189

Date of hearing: 29 November 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 61
Counsel for the Appellant: Ms TT Baw
Counsel for the First Respondent:

Mr GT Johnson SC with Ms A Mitchelmore
Solicitor for the First Respondent:

DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1550 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

SZRUR
Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGES:

ALLSOP CJ, ROBERTSON AND MORTIMER JJ

DATE OF ORDER:

29 NOVEMBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2.The appellant have leave to amend his notice of appeal in the form of the Amended Notice of Appeal annexed and marked SZRUR1 to his affidavit affirmed on 15 November 2013.

3.The appeal be allowed.

4.The orders of the Federal Circuit Court of Australia made on 16 July 2013 be set aside.

5.The amended application be remitted to that court for rehearing.

6.The first respondent pay the applicant’s costs of the application to the Federal Circuit Court of Australia to date, as agreed or assessed.

7. The first respondent pay the appellant’s costs of the appeal from the date on which the first respondent had notice of the proposed amended notice of appeal. Each party is to bear his own costs of the appeal up to that date.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

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SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146
Case
[2013] FCAFC 146
Decision Date

CaseChat Overview and Summary

The case of SZRUR v Minister for Immigration and Border Protection involves an appeal by the appellant, who has Chinese nationality, against the decision of the Federal Circuit Court dismissing his application for judicial review of a decision by the Refugee Review Tribunal not to grant him a Protection (Class XA) visa. The primary issue in the appeal is whether the appellant was denied procedural fairness in the Federal Circuit Court as a self-represented litigant, where the primary judge did not explain to him that the Court would not act on statements from the bar table and that his allegation of fraud against his migration agent would fail in the absence of evidence. The appellant argued that he did not attend the hearing in the Tribunal because the notice of the hearing, sent to a migration agent, was not given to him and he was not notified of its contents.

The court considered the duty of the trial judge to ensure a fair trial for unrepresented litigants and the need to balance this with ensuring a fair trial for all parties. The court found that the primary judge was not making findings of fact but merely illustrating the absence of evidence of fraud. The court held that the appeal should be allowed, the orders of the primary judge set aside, and the matter remitted to the Federal Circuit Court for rehearing. The Minister for Immigration and Border Protection was ordered to pay the costs of the applicant before the Federal Circuit Court to date, as agreed or assessed, and the appellant's costs of the appeal from the date on which the Minister had notice of the proposed amended notice of appeal. Each party was to bear their own costs of the appeal up to that date.

This case highlights the importance of procedural fairness in judicial proceedings, particularly for self-represented litigants who may not be familiar with the legal system. The court's duty to ensure a fair trial for all parties, including unrepresented litigants, must be balanced with the need to maintain impartiality and avoid giving judicial advice or conducting the case on behalf of the litigant. The decision in this case reinforces the need for judges to take appropriate steps to ensure that unrepresented litigants have sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial.

Orders

Orders of the court

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The appellant have leave to amend his notice of appeal in the form of the Amended Notice of Appeal annexed and marked SZRUR1 to his affidavit affirmed on 15 November 2013.

3. The appeal be allowed.

4. The orders of the Federal Circuit Court of Australia made on 16 July 2013 be set aside.

5. The amended application be remitted to that court for rehearing.

6. The first respondent pay the applicant’s costs of the application to the Federal Circuit Court of Australia to date, as agreed or assessed.

7. The first respondent pay the appellant’s costs of the appeal from the date on which the first respondent had notice of the proposed amended notice of appeal. Each party is to bear his own costs of the appeal up to that date.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The main issue in this appeal is whether the appellant was denied procedural fairness in the Federal Circuit Court where, being self-represented, the primary judge did not explain to the appellant that the Court would not act on statements from the bar table and that his allegation of fraud against his migration agent would fail in the absence of evidence as such. The appellant’s case in the Federal Circuit Court was that he did not attend the hearing in the Refugee Review Tribunal (the Tribunal) because the notice of the hearing, although sent to the address of a migration agent, was not given to him and he was not notified of its contents, in the circumstances which I set out below.Background This appeal is from the judgment of the Federal Circuit Court given on 16 July 2013 dismissing, with costs, an application to that Court seeking judicial review of a decision of the Tribunal dated 22 August 2012 affirming the decision not to grant the appellant a Protection (Class XA) visa. The appellant has Chinese nationality. The Tribunal noted that he arrived in Australia on 22 October 2011. He applied to the Department of Immigration for a Protection (Class XA) visa on 16 November 2011. He attended an interview with the Department on 30 March 2012. On 4 April 2012 the appellant lodged amended written claims. The delegate refused to grant the visa on 11 April 2012. The Tribunal On 26 April 2012 the appellant applied to the Tribunal for review of that decision. That application gave the appellant’s residential address, mobile telephone number and email address in answer to the item on the form “Your contact details in Australia”. He answered the question “Do you want to appoint a representative to act on your behalf and to be your authorised recipient?” “No”. To the question “Where do you want us to send correspondence about your application?”, the appellant answered “To Me”, gave the postal address of 301/401 Sussex Street, Haymarket, NSW and gave the same email address as before. On 23 May 2012 the Tribunal wrote to the appellant acknowledging receipt of the application. That letter was addressed to the appellant at 301/401 Sussex Street, Haymarket, NSW. That letter said that it was important that the appellant tell the Tribunal immediately if he changed his contact details “(such as your residential address, mailing address, telephone number, fax number or email address)”. On 25 June 2012 the Tribunal sent a letter by registered post to 301/401 Sussex Street, Haymarket, NSW. The letter stated that the Tribunal had arranged a hearing for 9:30 am on 21 August 2012. A response to the hearing invitation was received by the Tribunal on 4 July 2012 stating that the appellant would take part in the Tribunal hearing scheduled for 21 August 2012. At the foot of the form under the words “Signed on behalf of, and with the consent of, all applicants” the appellant’s name appeared in handwriting and underneath that handwriting was a signature in Chinese characters.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is not necessary to consider in any detail the second ground of appeal. In my view the short answer to it is that the primary judge was not making findings of fact in the passage complained of but was merely illustrating, in his Honour’s view, the absence of evidence of what happened and thus the absence of evidence of fraud.Conclusion In my opinion, the appeal should be allowed, the orders of the primary judge set aside and the matter remitted to the Federal Circuit Court for rehearing. The respondent should pay the costs of the applicant before the Federal Circuit Court of Australia to date, as agreed or assessed. In this Court, the respondent should pay the costs of the appellant from the date on which the respondent had notice of the proposed amended notice of appeal. Each party should bear his own costs of the appeal up to the date on which the respondent had notice of the appellant’s proposed amended notice of appeal. The name of the (first) respondent should be changed to “Minister for Immigration and Border Protection”. I agree with the reasons of Robertson J. I would add the following comments, in no way in derogation from anything that has fallen from his Honour. May I commence these reasons by emphasising that I make no personal criticism of the learned Federal Circuit Court judge. The appellant had a case before the Federal Circuit Court, a court established under Chapter III of the Constitution. The Federal Circuit Court was exercising the judicial power of the Commonwealth. The judge had before him a self-represented litigant, with no facility in English, and no facility with the Australian legal system. The appellant, in an unsworn statement from the bar table, stated that someone, in effect, had forged his signature on a document provided to the Refugee Review Tribunal (the Tribunal), that is that it was signed without his authority. He identified a migration agent at the end of the hearing. There is a heavy burden of proving fraud on an applicant who seeks to set aside an otherwise blameless decision of the Tribunal by reason of the fraud of some third party. The heaviness of that burden is identified in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 and Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501. If I may say so, before the Federal Circuit Court the matter was hopelessly confused, and lacking in any presentable form. Nevertheless, there was before that Court a body of facts which might have founded a case that someone signed a form that represented to the Tribunal that the appellant knew of the hearing date, and was acting for himself, both matters being false. The person who signed that document should, on one view, be judged by the standards of ordinary decent people, that is, in this context, ordinary decent migration agents conducting their affairs with one of the most important tribunals that they will deal with in the interests of their clients. In relation to that standard, reference only need be made to Macleod v R [2003] HCA 24; 214 CLR 230 at 242, Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 162, referred to in a bankruptcy context in Marcolongo v Chen [2011] HCA 3; 242 CLR 546 at 559.

Ratio Decidendi

Legal Principle Established

As to the second ground of appeal the respondent submitted that the primary judge was not intending to reach any concluded view as to the nature of the appellant’s engagement of the agent or what had taken place between them. In circumstances where the primary judge was well aware of the paucity of evidence before him the appellant’s contention that his Honour made findings of the nature led should be rejected.Consideration In Hamod v State of New South Wales and Anor [2011] NSWCA 375 the Court, Beazley, Giles and Whealy JJA, said:Courts’ duty to unrepresented litigants[309] Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v R [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94–95. In MacPherson Mason J, at [31] 534, noted that:A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as “fair”.[310] However, the court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]–[53].[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v New South Wales (No 2) [2006] NSWSC 914.[313] The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant.[314] Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.[315] There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.[316] The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.