WZASU v Minister for Immigration - [2013] FCCA 2109

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZASU v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2109

Catchwords:
PRACTICE AND PROCEDURE – Representation in migration proceedings – oral interim application for a non-lawyer to appear on behalf of the applicant – factors in relation to non-lawyer’s appearance – complexity – non-lawyer a non-legal professional – non-lawyer’s qualifications and experience – availability of disciplinary measures against non-lawyer – whether lay advocate has a duty to the court – protection of client and opponent – interests of justice – whether inappropriate for non-lawyer to appear.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth) s.44

Migration Act 1958 (Cth) Part 7

Damjanovic v Maley (2002) 195 ALR 256; [2022] NSWCA 230
McKenzie v McKenzie [1970] 3 All ER 1034
NAGM v The Minister for Immigration & Multicultural and Indigenous Affairs (2002) 125 FCR 488; [2002] FCAFC 395
Reynolds v The Minister for Health & Anor (2010) 247 FLR 425; [2010] FMCA 843
SZPZY v The Minister for Immigration & Anor [2011] FMCA 463
WZAOT v The Minister for Immigration & Anor [2011] FMCA 577

Applicant:

WZASU

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 141 of 2013

Judgment of:

Judge Antoni Lucev

Hearing date:

28 November 2013

Date of Last Submission:

28 November 2013

Delivered at:

Perth

Delivered on:

28 November 2013

REPRESENTATION

For the Applicant:

Mr Somasunderam (seeking leave to appear)

Counsel for the Respondents:

Ms N Johnson

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The interim oral application for Mr Somasunderam to appear on behalf of the applicant be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 141 of 2013

WZASU

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

The Court has before it an application by a Sri Lankan Tamil male for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) refusing to grant a protection visa. That is the substantive application. When the matter was called on this afternoon an interim oral application was made by the applicant for Mr Somasunderam, a voluntary social worker with the Tamil Association of Western Australia (“Tamil Association”), to appear on his behalf. Mr Somasunderam was granted the indulgence of himself addressing the application for his leave to appear.
Mr Somasunderam says that he is familiar with the circumstances of the case and has done some preparation in anticipation of being allowed to appear in the matter, and indicates to the Court that, in some way, shape or form, people have got together at the Tamil Association with a view to assisting the applicant in this application, and that Mr Somasunderam has been included in that process. Mr Somasunderam has no qualifications or otherwise any entitlement to be admitted as a lawyer in any Australian jurisdiction although the Court notes that he did indicate that he had some legal knowledge as a consequence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 2109
Decision Date: 28 November 2013

CaseChat Overview and Summary

WZASU (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is a citizen of Afghanistan, claimed to fear persecution upon return to Afghanistan due to their ethnicity and alleged involvement with a political organisation. The matter came before Judge Antoni Lucev in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the respondent's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to properly consider the applicant's claims of persecution, particularly in relation to the risk of harm from the Taliban and other groups, and whether the delegate had adequately assessed the applicant's credibility.

Judge Lucev found that the delegate had failed to properly consider the applicant's evidence regarding the current political and security situation in Afghanistan, and the specific risks faced by individuals of the applicant's ethnicity and alleged political affiliations. The Court held that the delegate's assessment of the applicant's credibility was flawed, as it did not adequately engage with the entirety of the applicant's evidence and submissions. The legal principle applied was that a decision-maker must genuinely consider all relevant evidence and submissions before making a decision, and a failure to do so constitutes jurisdictional error.

The Court ordered that the decision of the respondent be set aside and remitted to the respondent for reconsideration according to law.

Orders