FEDERAL COURT OF AUSTRALIA

SZRIF v Minister for Immigration and Border Protection [2015] FCA 680

THE COURT ORDERS THAT:

1.    The first applicant be appointed litigation representative of the second applicant for the purposes of these proceedings.

2.    The application be dismissed.

3.    The first and third applicants pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an application for leave to appeal from the decision of the Federal Circuit Court refusing the applicants constitutional writ relief in respect of a decision of the Refugee Review Tribunal dated 30 July 2014 to affirm the decision of a delegate of the Minister not the grant the applicants, who are husband, wife and their young child, visas based on the complementary protection ground in s 36(2)(aa) of the Migration Act 1958 (Cth): SZRIF v Minister for Immigration and Border Protection [2015] FCCA 493.

2    Due to some confusion on his part the first applicant, who is the only one of the family who has taken an active role in the proceedings, lodged an application for leave to appeal from her Honour’s decision, rather than filing a notice of appeal. The Minister pointed out that because her Honour’s decision was a final, and not interlocutory, decision, the applicants should have commenced the proceedings with a notice of appeal. The Minister filed a notice of objection as to competency and invited them to regularise that matter on the basis that he would not oppose the grants of an extension of time and leave to appeal. The applicants failed to respond or to regularise the proceedings.

3    I have heard the matter on the basis that any error which her Honour is said to have made in her decision could be ventilated for the purposes of determining how I should dispose of the proceedings. I also permitted the first applicant to be assisted in the presentation of his case today by another person who is in immigration detention and who wished to act as his McKenzie friend: cf Nepal v Minister for Immigration and Border Protection [2015] FCA 366, where Edelman J discussed the concept of such assistance after McKenzie v McKenzie [1971] P 33.

The attempt to raise new issues

4    The McKenzie friend appears to have suggested to the first applicant that he should concentrate his efforts on challenging the decisions of both her Honour and the Tribunal on the basis of what has become colloquially known as the “data breach” issue. That issue was first raised with the applicant on 12 March 2014, in a letter written by the Secretary of the Minister’s Department to a large number of persons who were in immigration detention as at 31 January 2014, informing them that there had been a revelation of personal information on the internet concerning many persons in immigration detention for a brief period. This had occurred when information embedded in a Departmental report published on the internet was accessible by an indirect means if a person reviewed the report. It is not necessary to describe the details of that matter.

5    Importantly, the applicants did not raise any concerns relating to themselves about the data breach, to the extent that it may have affected them, whatever level of information they may have had about it beyond the terms of the 12 March 2014 letter, at their interview before the delegate between the date of their receipt of the Secretary’s letter and the delegate’s decision of 12 June 2014, or at the hearing before the Tribunal or before her Honour.

6    Ordinarily, a proceeding by way of appeal on a rehearing requires the appellant to identify error on the part of the primary decision-maker, and the appellate court cannot exercise its appellate functions unless that is done: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204 [14] per Gleeson CJ, Gaudron and Hayne JJ.

7    Moreover, an appeal court must ensure that the proper appellate processes are respected in the ordinary course of litigation. An appeal by way of rehearing, such as would occur had the applicants filed a notice of appeal in time or if they were to be granted leave to appeal, ordinarily does not enable parties to raise completely new issues that were not agitated in the Court below. In University of Wollongong v Metwally [No 2] (1985) 49 ALJR 481 at 483, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said that:

a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

8    In Coulton v Holcombe (1986) 162 CLR 1 at 7-8, Gibbs CJ, Brennan, Wilson and Dawson JJ cited that passage with approval and also held that there is an important public interest in finality of litigation, and in ensuring that new facts are not sought to be introduced on appeal. The trial, ordinarily, is where the issues and the facts are settled and decided.

9    This morning the first applicant appeared before me in person with the assistance of his McKenzie friend and sought to rely on a vastly expanded draft notice of appeal that particularly concentrated on the data breach issue. The applicants’ original draft notice of appeal, attached to the first applicant’s affidavit in support of the application for leave to appeal dated 11 March 2015, raised only two grounds, being:

(1)    The Court did not consider claims that the first applicant might raise as a consequence of the release of his personal information on the internet (the data breach) in February 2014.

(2)    Natural justice was denied because the first applicant had no legal advice or representation.

10    The Minister relied on a letter written by an officer of the Department to the first applicant on 20 January 2015, referring to the March 2014 letter and offering the first applicant the opportunity of a review if he provided information within 14 days. The first applicant told me today that he had sought to obtain advice from a human rights organisation within Villawood Detention Centre and had been informed that he should await some unspecified decision about the data breach matters raised in the 20 January 2015 letter. Because it appeared that there may have been some misunderstanding on the first applicant’s part if, as the Minister informed me, the applicants had not sought a review as provided in that letter, the Minister’s solicitor indicated that the applicants could now avail themselves of the opportunity to have that review take place, notwithstanding the delay that has occurred. The first applicant said that he wished to take that opportunity up.

11    Accordingly, it is unnecessary for me to deal with the issues that would have arisen had I had to consider the data breach issue.

The proceedings in the Tribunal

12    The first applicant’s earlier claims for a protection visa, based on s 36(2)(a) of the Act, asserted that he was entitled to a protection visa because he fell within the definition of being a refugee. That claim had been rejected by the Minister. However, following the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the first applicant, who continued to remain in immigration detention, was permitted to make a subsequent application for complementary protection under s 36(2)(aa) of the Act. The applicants did so and were represented in relation to the review before the Tribunal by their registered migration agent who was also a lawyer. The first applicant has told me today that all that that representation entailed was that the migration agent assisted in the filling out of forms.

13    In any event, the first applicant attended at a hearing before the Tribunal on 23 July 2014 and gave evidence. It suffices to say that the Tribunal, having carefully considered the history of the first applicant, his dishonesty and his having put forward false information and claims, concluded that he was:

… not a credible witness and that none of the matters he has now claimed can be accepted at face value.

14    The Tribunal noted that the first applicant’s claims had changed when interviewed by the delegate and then subsequently at the hearing. It noted that he had been in Australia illegally for nearly 12 years prior to lodging a protection visa application and that he only lodged that application shortly after he was detained. The Tribunal concluded that his claims, the subject of the application for a complementary protection visa, were not true and that he was making these claims to try to suggest that he was of adverse interest to someone in Malaysia. The Tribunal did not believe that any of his claim was true. It found that the application was opportunistic and that it had been made because the first applicant had been arrested and taken into immigration detention.

15    Accordingly, the Tribunal found that the applicant’s claim for a protection visa based on the complementary protection ground should be refused.

The proceedings before the trial judge

16    The applicants then applied to the Federal Circuit Court and, in a careful and comprehensive judgment, the trial judge reviewed each of the 10 grounds in the application for review and dismissed each of them. Her Honour noted that the first applicant, as here, appeared for himself and, as here, he was appointed as litigation representative of the couple’s young child. Only the first applicant had claims and the members of his family’s rights to a protection visa were entirely dependent upon the success of the first applicant’s case. Essentially, the grounds before her Honour involved assertions that:

    some integers of the first applicant’s claims for protection were not properly taken into account by the Tribunal;

    the applicants had more evidence;

    the Tribunal had deprived the applicants of natural justice; and

    the Tribunal had made a variety of factual errors (being grounds that her Honour correctly held involved an attempt to engage the Federal Circuit Court in a merits review of the Tribunal’s reasoning and fact finding processes).

17    During the course of argument, the first applicant told her Honour that he could not find a lawyer and had not received a disk or a recording of the Tribunal’s hearing. However, the first applicant acknowledged that he had made no request for access to a disk or recording, as was confirmed to her Honour by the Minister’s solicitor. This had occurred despite her Honour having given pre-hearing directions that any evidence of the transcript or the recording of the hearing should be filed. In those circumstances, her Honour found there could be no jurisdictional error on the part of the Tribunal arising from the first applicant’s complaint that it had not dealt with some aspect of his claims. She held that the first applicant had had sufficient opportunity to make any request for a copy of the disk or the recording and had chosen not to do so.

18    Next, the first applicant informed her Honour that he had no further evidence or information to provide in support of his claim for complementary protection, despite what was in the second ground of the application in the Court below and that, as her Honour noted, he had filed no documents since the proceedings commenced below.

19    Despite not expressly raising the quality of the interpretation in the Tribunal as a ground of judicial review, the first applicant told her Honour, in explaining the third ground, that he had been denied natural justice because the interpreter had not understood his local language or dialect. This was why, he asserted, he was unable to explain matters which the Tribunal found incomprehensible when the first applicant attempted to explain his position. Her Honour noted that the first applicant had informed her that he had not complained to the Tribunal about the quality of the interpretation during the hearing and that the first time he had raised any issue about the quality of interpretation was at the hearing before her Honour. She found, and I agree, that he had had every opportunity to provide evidence in support of such a contention and had failed to do so. Her Honour was not satisfied that there was any denial of natural justice to the applicants in relation to the first applicant’s allegations concerning the quality of the interpretation. Her Honour found the Tribunal’s summary of the oral evidence given by the applicant at the hearing before it was accurate and that this was the only evidence before her Honour. I agree: NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1.

20    Her Honour found that there was nothing in the Tribunal’s decision record to suggest that the applicants had not received a real and fair opportunity to put whatever they wished and to participate in the hearing in a way that left open any question about the fairness of the hearing. Her Honour found the other grounds of review were essentially an attempt to seek merits review which was beyond the jurisdiction of the court. I agree.

21    Her Honour also found that on the face of the Tribunal’s decision record, its findings were open to it, on the evidence of the material before it and for the reasons it gave, including its adverse credibility findings concerning the first applicant. She held that none of the applicant’s complaints demonstrated any error on the part of the Tribunal going to its jurisdiction and there was none apparent on the face of the Tribunal’s decision. I agree.

22    Accordingly, her Honour dismissed the application for review.

These proceedings

23    This morning, the first applicant sought to argue that the applicants should have been provided with a lawyer to act for them, first, in the Tribunal, secondly, before her Honour and, thirdly, before me. In particular, they relied on the fact that the couple’s son was a minor and asserted that he should be protected by the provision of a lawyer.

24    I reject that argument. First, the applicants appear to have had access to a migration agent who was also a lawyer for the purposes of the conduct of the review of proceedings in the Tribunal. Whether or not the applicants availed themselves of the opportunity to have that person represent them at the hearing before the Tribunal or, indeed, in the Court below or this Court, was a matter for the applicants. They had the resources, apparently, to engage someone to act for them initially and there is no reason why anything that was sought to be raised by them before her Honour or me would have required either Court to refer them for legal assistance under r 4.12 of Federal Court Rules 2011 (Cth) or its analogue in the Federal Circuit Court.

25    The simple fact is that the Tribunal had made findings that the first applicant was not telling it the truth about his circumstances when he gave evidence to it. That is why his claim failed before the Tribunal. There is nothing from my reading of the Tribunal’s decision or the reasons given by her Honour for dismissing the application for constitutional writ relief which suggests to me that there is any basis on which an appeal might be brought, even on the sole ground of appeal that was open in this case, namely that the applicants were denied natural justice because they had no legal advice or representation.

26    The Tribunal must deal with a vast number of persons of all different nationalities, ages, personalities, languages, and circumstances making claims before it for protection visas under s 36(2). There is no requirement in the law that those persons be provided with legal representation in the Tribunal at the expense of the Commonwealth. Nor is that the position in relation to litigation in the Courts. The Courts recognise that, among other things, they are assisted by trained lawyers appearing before them to present evidence and put arguments. Nonetheless, ordinarily, it is a fundamental right of every individual to appear in person before a court to represent himself or herself, or, if the person wishes or can afford to do so, he or she may be represented by a lawyer. There is no common law right for persons to have a lawyer to represent them in court proceedings at public expense: Dietrich v The Queen (1992) 177 CLR 292. However, as the High Court held in Dietrich 177 CLR 292, the Courts have powers to stay criminal proceedings where an accused is unrepresented if that lack of representation will result in an unfair trial.

27    Similarly, there is no common law right for persons to have a lawyer represent them at public expense in administrative proceedings, such as those before the Tribunal, or in claims for judicial review arising from administrative decisions. Often a court will be assisted by the provision of an argument and evidence presented by a lawyer on behalf of a party. But, everyone has the personal right to come before a court to present his or her own case and argument.

28    There is nothing in this case that called for the provision to the applicants of a lawyer if they did not choose to engage one, or to find one who was prepared to appear for them. Having regard to the Tribunal’s findings of fact, there is no reasonable basis on which it could be said that the failure to have a lawyer would have made any difference to the outcome. That is because the Tribunal just did not believe the account given by the first applicant on which the claim for complementary protection was solely based.

29    Moreover, although the migration agent/lawyer who represented the applicants in the Tribunal would have been aware of the circumstance of the data breach revealed in the letter of 12 March 2014, that person raised nothing to do with that subject in the course of the review in the Tribunal. Nor was there any obligation on the part of the Tribunal to raise that issue. Its process is inquisitorial. The Tribunal’s function was to assess the applicants’ claims. The applicants were aware of the data breach from their receipt of the 12 March 2014 letter, and said nothing about it to either the Tribunal or even to her Honour, despite having received the subsequent letter of 20 January 2015, over a month before the hearing before the trial judge.

30    In all of the circumstances, I see no basis upon which leave to appeal could be granted. A party seeking an extension of time in which to file a notice of appeal ordinarily must show the court that there is some merit in the argument that he or she wishes to advance. Flimsy cases that are weak on the merits ordinarily will not obtain the grant of an extension of time: Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J, 540 [66(4)] per Kirby J.

31    An application for leave to appeal requires that the party seeking leave demonstrates that, first, the decision in question is attended with sufficient doubt to warrant the grant of leave and, secondly, that substantial injustice will result if leave to appeal is refused: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.

Conclusion

32    In my opinion, any appeal from her Honour’s decision would have no prospects of success. In those circumstances, I refuse an extension of time in which to seek leave to appeal with costs.

Associate:

Dated:    3 July 2015

SCHEDULE

NSD 210 of 2015

SZRIH

Second Applicant

SZRIG

Third Applicant