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

1. 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)

1. 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.

2. 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 of what the Court understood to be administrative examinations with respect to the legal system in Sri Lanka.

3. Mr Somasunderam has no right of appearance before the Court on an application for judicial review. He is not a person entitled to practise as a barrister or a solicitor in a federal court or otherwise authorised under any law of the Commonwealth to represent a party in an application for review of a decision of the Tribunal. Thus, by reason of s.44 of the Federal Circuit Court of Australia Act1999 (Cth), he is not entitled to represent the applicant in this proceedings, at least not without leave of the Court.

4. Mr Somasunderam does however have significant tertiary qualifications from a variety of universities both in Western Australia and overseas, having graduated in arts, and attained graduate qualifications in social work and a Master’s degree in education. The Court notes that Mr Somasunderam in terms of his legal qualifications is in no different a position to the applicant: both are without legal qualifications. The authorities, based upon the New South Wales Court of Appeal decision in Damjanovic v Maley (2002) 195 ALR 256; [2002] NSWCA 230 (“Damjanovic”), which has been followed by this Court in Reynolds v The Minister for Health & Anor (2010) 247 FLR 425; [2010] FMCA 843 (“Reynolds”), indicate that any discretion that the Court has to allow an unqualified person to appear before it must be exercised cautiously. The Court also notes that generally speaking the experience of the federal courts with respect to allowing the appearance of persons in migration matters who are not qualified as lawyers is such that they have been of little assistance to the federal courts, and importantly, to their clients. In that regard the Court refers to NAGM v The Minister for Immigration & Multicultural and Indigenous Affairs (2002) 125 FCR 488; [2002] FCAFC 395, SZPZY v The Minister for Immigration & Anor [2011] FMCA 463 and WZAOT v The Minister for Immigration & Anor [2011] FMCA 577. In Reynolds, this Court observed at FLR 429, FMCA at para.8 as follows:

   When deciding whether to exercise discretion to grant leave to allow a non-lawyer to appear on behalf a party, courts generally take into account the following principles:

   (a) the complexity of the matter;

   (b) the genuine difficulties of a self-represented party;

   (c) the unavailability of disciplinary measures against, and the absence of any duty to the Court by, lay advocates;

   (d) protection of the client and the opponent from the actions of an unqualified person;

   (e) whether lay advocates ought to appear in inferior courts and tribunals; and

   (f) the interests of justice.

   Those principles are largely taken from Damjanovic.

5. Turning first then to the complexity of this matter, the issues in this matter are on their face no more or less complex than the usual judicial review applications for review of protection visa application cases. In this case the grounds are three simple and straightforward grounds, although that says nothing about their competence, which assert jurisdictional error by the Tribunal, a failure to afford procedural fairness and that the decision was affected by legal error. Even though those grounds are not particularised, they are grounds which the Court regularly sees in a similar or not dissimilar form in applications such as this. There is nothing in respect of the complexity of the matter on its face which would warrant the intervention of an external unqualified advocate.

6. Looking then at the genuine difficulties of a self-represented party in an application for a protection visa. Setting aside the language issues, most self-represented litigants in this Court have difficulties in presenting their cases to the Court in migration proceedings, and other areas of the Court’s jurisdiction. That is because they are laypersons, and again generally speaking, persons who are unfamiliar with the Court and its processes.

7. In relation to protection visa applicants it is true to say that the vast majority of them speak little or no English, or have English as a minor or secondary language, and in that respect at least are disadvantaged compared to English speaking litigants. Mr Somasunderam in making the application on behalf of the applicant appeared to assert that the applicant was at least ignorant in relation to the English language but also ignorant generally. That is, as the Court pointed out in the course of the submissions, not a submission properly made in this case or arguably in any case. It is relevant to observe, as the Court did during the submissions, that the applicant has had the wherewithal to get to Australia from Sri Lanka. Further, prior to coming to Australia, he also had the wherewithal to work in Dubai as a security officer between 2008 and 2011. In his interview upon entry to Australia, an interview conducted on 28 July 2012, the applicant indicated that he had studied in Udappu from 1990 after having moved from Vulaythalu, that he had got a lot of talents but had not got anything out of it and was becoming frustrated, and that he was studying with the expectation of becoming a doctor or scientist. Those statements, made upon entry, together with the general tenor of what was said upon entry, do not signify a person who is either ignorant or unable to advocate on his own behalf. The applicant is, insofar as he is non-English speaking, in no different a position to the vast majority of unrepresented persons who appear in these types of cases before this Court with the assistance of an interpreter.

8. Mr Somasunderam put a submission to the Court that he wanted to tell the Court what the applicant had told him with respect to the Tribunal proceedings. There was no real answer to the question as to why the applicant could not do that utilising the services of the interpreter who has been provided today.

9. In all the circumstances the Court is not persuaded that there are genuine difficulties that apply to this applicant as a self-represented party over and beyond the difficulties which would ordinarily apply to a person in his position.

10. The Court notes that it has no disciplinary measures available in the event of any misbehaviour or misconduct by Mr Somasunderam before the Court. The Court hastens to add that there has been nothing in the conduct of Mr Somasunderam to date which would indicate that he would act in such a manner, at least not advertently. It is unnecessary in the circumstances to make any reference to the Court’s powers with respect to contempt of Court.

11. With respect to the protection of the client, that is, the applicant, from the actions of an unqualified person, the Court notes that:

    a)Mr Somasunderam is, as it is already observed, not a lawyer and has no relevant legal qualifications;

    b)it would appear, at least in some form of collective sense as Mr Somasunderam described it, that he has assisted with the drafting of the application which, as the Court has observed, is unparticularised and which the Court further observes does not indicate what form of jurisdictional or other legal error is alleged to have been perpetrated by the Tribunal, or in what respects the Tribunal is alleged to have departed from the relevant standards of fairness or procedural fairness, bearing in mind particularly that the common law of procedural fairness does not apply in this case and the applicable standard of procedural fairness is tightly confined by the terms of Part 7 of the Migration Act 1958 (Cth);

    c)it is not satisfied from what it has heard from Mr Somasunderam today that he has any detailed understanding of the concept of jurisdictional error as it operates in judicial review applications before this Court; and

    d)Mr Somasunderam is a member of the Tamil Association and as such is more likely to be closely aligned to the applicant’s arguments, and not able to necessarily bring the degree of professional objectivity that a trained lawyer would bring in the circumstances. That, to some degree, was exemplified by his remark that we “have to tell them what to do.”

12. As to whether lay advocates ought to appear, the Court notes Mr Somasunderam’s submission that he has appeared at least once before this Court in a similar matter. The reasons for that are not apparent but each case in any event falls to be determined on its own particular facts by the application of the Damjanovic criteria. The Court particularly bears in mind that consistent with the purpose and object of the relevant legislation restricting the rights of non-lawyers to appear in federal courts, it must be very much the exception rather than the rule that non-lawyers appear. Allowing a person who is professionally qualified in other areas to appear and who is a member of a voluntary association which would appear to be aligned with the applicant, invites the question as to where the Court might draw the line with respect to the appearance of professionals or persons who are members of associations aligned with or who “advocate for” a particular applicant. In that respect, were the Court to allow a person to appear on the basis that he was professionally qualified in another area or a member of a particular association, there would be no dividing line between that person and other professionals such as doctors and psychologists, or persons in holy orders, or members of various associations involved in advocacy for particular causes. The Court considers it appropriate in the circumstances of this case to indicate that it does not consider that it is likely to be assisted by the appearance of a person who is professionally qualified in another area and who is a member of an association which, at least in part, advocates for the rights of particular persons of whom the applicant is one.

13. The Court takes the view that having heard what it has heard from Mr Somasunderam, and having regard to the drafting of the existing application, there is nothing in those facts and materials which would indicate that Mr Somasunderam’s appearance would advance the interests of justice in this case. Finally, the Court observes that the applicant is not disadvantaged by himself putting his case to the Court. What it is that Mr Somasunderam says the applicant has put to him, and a process which Mr Somasunderam described as torturous by reason of the necessity to have an interpreter put the submissions of the applicant to the Court, is a position that the Court commonly encounters.

14. For all of the above reasons the Court is of the view that the applicant’s interim oral application to be represented by a non-lawyer, namely, Mr Somasunderam, ought to be dismissed.

15. The Court, and this was not the subject of submissions, has no difficulty if Mr Somasunderam sits at the Bar table and assists the applicant in the capacity of what is generally referred to as a McKenzie friend after the English case of McKenzie v McKenzie [1970] 3 All ER 1034. That would allow Mr Somasunderam to make suggestions to, prompt and otherwise assist the applicant without actually making any submissions on his behalf.

16. There will be a formal order of dismissal with respect to the interim oral application that has been made.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate:

Date: 10 December 2013