FEDERAL COURT OF AUSTRALIA

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

REASONS FOR JUDGMENT

1    The application before the Court is made pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking to quash a decision of the Federal Circuit Court refusing the applicant an extension of time to seek judicial review of a decision of the Refugee Review Tribunal.

2    For the reasons I set out, the application must be dismissed, although that is a conclusion I have reached with some considerable disquiet.

Background

3    The applicant is a national of Egypt who arrived in Australia on a student visa in June 2008 and applied in October 2012 for a Protection (Class XA) visa, which was refused by a delegate of the Minister on 19 December 2012. On 8 October 2013, the Refugee Review Tribunal affirmed that decision.

4    There was then a considerable delay before the applicant filed an application in the Federal Circuit Court on 10 July 2014, seeking judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth) and an extension of time in which to do so under s 477(2). Pursuant to s 477(1) of the Act, an application to the Federal Circuit Court for a remedy to be granted under s 476 in relation to a migration decision must be made within 35 days. The date 35 days after the Tribunal’s decision on 8 October 2013 is 12 November 2013, and accordingly the applicant’s application to the Federal Circuit Court was 240 days out of time.

The Tribunal decision

5    The applicant is a Sunni Muslim from Cairo who worked as a carpenter in his family’s carpentry business. As set out in the Tribunal’s reasons, the applicant claimed to fear persecution by the Muslim Brotherhood in Egypt, who he said had targeted him on account of his membership of and involvement with the National Democratic Party, the dominant ruling party in Egypt from the time of its establishment in 1978 until the overthrow of President Hosni Mubarak in 2011 following a popular uprising against the party.

6    The applicant claimed that he joined the National Democratic Party in 1995 in order to expand his networks and work prospects, and that the party helped him open his carpentry workshop as part of the family business. The applicant said that he did community service work for the party, and that his role was to help people to find work including by providing training. The applicant claimed that the Muslim Brotherhood came to him one year before he came to Australia and approached him on five occasions. They told him to close his workshop, which he did in December 2007. The applicant stated that since he left Egypt the Muslim Brotherhood had asked about his whereabouts.

7    The Tribunal accepted that the applicant is an Egyptian national who was a member of the National Democratic Party from 1995 until the time he came to Australia. However, the Tribunal considered his involvement in the party was limited and was of a low profile. Affirming the delegate’s decision, the Tribunal found the applicant’s fear of persecution by the Muslim Brotherhood (referred to as “MB” in the Tribunal’s reasons) was not well founded:

Country information set out above indicates that the MB was removed from power in July 2013 and a new government has been installed. The above country information indicates that many hundreds of MB supporters have been arrested or killed since. Even during the reign of the MB the country information does not establish that low-profile members of the NDP were targeted or mistreated by the authorities or other group. The NDP was reported to have 1.9m members. Several members of the senior leadership of the NDP and other high profile members were arrested on charges of embezzlement and corruption but the applicant was not in this position. When the NDP was dissolved, its former members were allowed to participate in the November 2011 elections.

The applicant was not directly politically active in elections and did not have any formal role in the party or take part in any of their political activities. At the hearing he displayed only a rudimentary knowledge of the party’s policies. I have accepted that he helped the NDP provide services to the community through training individuals but I find this role to be only of a low-level nature. I have accepted that the applicant was visited on five occasions by MB members and that they twice enquired about his whereabouts with his brother in the months after he left Egypt. He was not however physically harmed by these men nor was there any damage done to his workshop in any of these visits. Furthermore, it is now over five years since the applicant left the country, the NDP no longer exists, there are no reports of low-level NDP members being targeted after the January 2011 revolution and the MB is no longer in power. In response to the country information at hearing, the applicant claimed his social services work was more important than talking and that he was a famous person in the area. I have taken into account this response but I find his role was only low-profile and I am of the opinion that the prospects of the MB or its members and supporters having an adverse interest in the applicant upon his return to Egypt or in the reasonably foreseeable future to be very remote.

The application to the Federal Circuit Court

8    As noted above, the applicant filed an application in the Federal Circuit Court on 10 July 2014, some 240 days out of time, seeking judicial review of the Tribunal’s decision under s 476 of the Migration Act and an extension of time in which to do so under s 477(2).

9    The application was heard by the Federal Circuit Court on 23 June 2015, and orders were made on 30 June 2015.

10    In his written application for an extension of time, the applicant identified the following grounds as to why an extension of time would be necessary in the interests of the administration of justice:

1.    THIS DECISION PUTS MY LIFE AT RISK IF I AM FORCED TO RETURN TO EGYPT

2.    IF I RETURN TO EGYPT I WILL BE IN A DANGEROUS SITUATION WITHOUT ANY SAFETY

3.    IF I AM FORCED TO RETURN TO EGYPT I WILL DEFINETLY BE ARRESTED AND WILL NEVER BE RELEASED FROM JAIL

11    His application also identified the following four grounds for judicial review:

1.    The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (The Tribunal) which a decision was made on 09 October, 2013 where the Tribunal affirmed a decision of a delegate to refuse to grant a Protection (Class XA) visa to the Applicant.

2.    The Tribunal constructively failed to exercise his jurisdiction.

PARTICULARS

i.    The Applicant provided information and documents to the Tribunal to corroborate his claims.

ii.    The Tribunal failed to engage in an active intellectual process of these documents.

iii.    The Tribunal gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents.

iv.    It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

3.    The Applicant satisfies the key elements for a Protection Visa and the Tribunal has not considered this aspect and therefore made factual and legal errors.

PARTICULARS

i.    Criterion I paragraph 36(2)(a) of the Migration Act where Australia has protection obligations because there are grounds to believe that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non – citizen will suffer significant harm (“complementary Protection”.)

ii.    The Applicant satisfies the elements and he is fearful to go back to the receiving country being Lebanon.

iii.    The Tribunal has not made a favourable decision for the Applicant.

4.    The R.R.T. has failed to investigate the applicant’s claim, especially on the grounds of persecution in Lebanon and based the majority of his decision on Articles and Sources of the Internet which are not reliable. Therefore the Tribunal’s decision was affected by actual bias constituting judicial error.

12    The references to Lebanon are clearly a mistake by the drafter of the document. I return to this issue later in these reasons.

13    In the affidavit accompanying his application, the applicant deposed to having applied for Ministerial intervention. Amongst the correspondence annexed to his affidavit, which appears on the Federal Circuit Court file, were letters from his migration agent who appears to have acted for the applicant from at least October 2012 in his application for a protection visa as well as subsequently in a request for Ministerial intervention made on 1 November 2013. By letter dated 27 June 2014 addressed to his migration agent, the applicant was notified of the Minister’s decision not to intervene in his case. His application to the Federal Circuit Court was filed 13 days later on 10 July 2014.

14    It was an important part of the applicant’s case in this proceeding that the applicant was not, so far as the record of the Federal Circuit Court was concerned, legally represented. None of the documents filed with the Federal Circuit Court bore any details of a solicitor on the record as acting for the applicant. The Federal Circuit Court was, both parties before me accepted, dealing with a person who was self-represented.

15    Before the Federal Circuit Court, the Minister conceded there was no prejudice to him in granting an extension of time, but contended no extension should be granted due to lack of merit in the applicant’s challenges to the Tribunal’s decision.

16    The applicant appeared in person at the Federal Circuit Court hearing and made oral submissions with the assistance of an interpreter, having not otherwise filed any written submissions. There had been a previous directions hearing in October 2014 (at which the applicant had not appeared), at which orders had been made to prepare the matter for hearing on 15 June 2015. When the matter was called on for hearing on 15 June, the applicant appeared. However he sought and was granted an adjournment until 23 June 2015 for health reasons. The hearing then proceeded on 23 June 2015.

17    The manner in which the Federal Circuit Court conducted the hearing on 23 June is significant to the applicant’s claim for relief in this Court, and I return to the hearing process below.

The Federal Circuit Court decision

18    In its reasons, the Federal Circuit Court referred to the preconditions to the grant of an extension of time as they are set out in s 477(2) of the Migration Act.

19    The Federal Circuit Court set out the guidance provided by Foster J in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; 139 ALD 252 in relation to the factors which might ordinarily be taken into account in deciding whether it is in the interests of the administration of justice to extend time. As I have noted in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, like other judicial guidance in relation to statutory discretions expressed in an unconfined way, or expressed by reference to broad considerations (as is the case with s 477(2)), it is critical that such guidance not be taken as exhaustive. Nor must it be applied as if it is a code.

20    In relation to s 477(2)(a), the Federal Circuit Court stated that the applicant had “not addressed the issue of delay in writing at all”. As I have noted, the fact and course of the application for Ministerial intervention would have been apparent to the Federal Circuit Court from the applicant’s affidavit. It is also apparent from the transcript of the Federal Circuit Court hearing, which was in evidence before me, that the applicant gave some explanation to the Federal Circuit Court during the hearing. I infer that what the Federal Circuit Court meant was that the applicant had not set out any explanation in the application itself.

21    The Federal Circuit Court concluded that the fact of applying for Ministerial intervention was not a sufficient explanation for the delay in filing an application to the Federal Circuit Court.

22    Having observed that the Minister did not advance any prejudice to him in the extension of time being granted, the Court turned to consider “the merits of the application for judicial review”.

23    At [6] the Court stated that “[i]t was clear from his submissions before this Court that a lawyer prepared the grounds for him”. The Court also noted there was an error in those grounds because the grounds referred to Lebanon instead of Egypt.

24    In relation to the complaint that the Tribunal did not actively engage in the intellectual process of considering his evidence and documents, the Federal Circuit Court held at [13] that the applicant had been unable to point to anything supporting such a complaint. Instead, his complaint invited the Court to engage in merits review, which it was not permitted to do. The Court also held that to the extent the applicant challenged the Tribunal’s use of country information the applicant said was unreliable, the issue of what weight to place on evidence and material before it was a matter for the Tribunal and not for the Court (referring to Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297). Equally, referring to MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94, the Court held that the Tribunal may also rely on the absence of country information indicating that low profile members of the National Democratic Party were being targeted.

25    The Court held (at [15]):

It is clear from the decision itself that the Tribunal did consider the corroborative evidence that the applicant put forward, but made findings of fact after considering the whole of the evidence before it, which was not limited to the documents provided by the applicant, but also his oral evidence and also country information.

26    The Court found there was no substance to the allegation of actual bias. That was an allegation which at the hearing before the Federal Circuit Court the applicant made clear was included by his lawyer. In its reasons at [18], the Court stated:

The applicant did not expand upon [the bias allegation] in the application and when asked to expand on that at the hearing the applicant indicated that his lawyer had prepared that and that he felt that he did not understand the basis for the Tribunal’s decision and therefore it must be based on some personal element.

27    The Court expressed its conclusions at [20] and [21] of its reasons:

The applicant has not been able to establish any error of law on the part of the Tribunal. The delay in this case is significant. The applicant has not provided any adequate explanation for the delay.

Consequently, there would be no utility in granting the applicant’s application to extend time. Therefore I will dismiss the application to extend time.

The procedural history in this Court

28    The applicant has at all times been represented in this Court by new legal representatives. Some significance attaches to this fact. As I note below, the applicant deposes to having had the means to secure legal representation at all times in the court process.

29    The originating application for judicial review and statement of claim as initially filed made an allegation of fraud against the migration agent who had previously acted for the applicant in the Tribunal, Ms Saraya. The applicant deposed that Ms Saraya worked at Challenge Migration Services.

30    The particulars of the alleged fraud were said to be set out in the accompanying affidavit affirmed by the applicant. In that affidavit the applicant deposed he believed his migration agent was a lawyer and his agent had never informed him of the option to appeal the Tribunal’s decision to the Federal Circuit Court, nor that a time limit applied for the lodging of such an appeal. He stated that he was instructed by his agent to sign a letter (annexed to his affidavit) stating he had prepared the application to the Federal Circuit Court by himself, when in fact those documents were prepared by his migration agent. He stated when he attended the Federal Circuit Court hearing, he believed based on his agent’s advice that the hearing was for the purpose of the Court gathering evidence and was unaware that it was in fact a final hearing. He deposed he was not told by his agent and did not know that he could have sought the assistance of a legal representative for that hearing, and that had he known he would have arranged legal representation.

31    When the parties appeared before me for case management on 2 September 2015, I raised with the parties the need for an amended originating application and amended statement of claim setting out full particulars of the fraud alleged to have occurred, and made orders granting the applicant leave to file those amended documents. So that Ms Saraya might make an election whether to respond to the serious allegations made against her in this proceeding, I further ordered that the applicant serve on her the amended originating application, amended statement of claim and the applicant’s affidavit material. As it turned out, the allegation of fraud was not pursued. Nevertheless the applicant’s solicitor subsequently filed with the Court an affidavit of service showing service on Ms Saraya, in substantial compliance with my orders, of the amended originating application, the statement of claim as originally filed and what was described as an “amended affidavit” of the applicant, which appears to refer to the further affidavit affirmed by the applicant and filed on 23 September 2015.

The amended statement of claim and the evidence before me

32    As I have noted, the amended statement of claim did not pursue an allegation of fraud. The amended statement of claim did not particularise the alleged fraud as the applicant had been ordered to do. Rather, it raised a wholly new ground: namely, that the Federal Circuit Court had failed to afford the applicant procedural fairness. That ground was particularised as follows:

a.    Prior to the arrival of the interpreter (who arrived late to the hearing), the learned Judge commenced substantive discussion of the matter, including asking the applicant whether he had “had a chance to read through” the Respondent’s submissions, but did not make any further inquiries as to whether they had been interpreted to him, or whether he had understood them, or discussed them with a lawyer, or whether indeed he understood the nature of the proceedings at all;

b.    The court failed to inform the applicant during the hearing on 23 June 2014 that the hearing would be the final hearing of the matter;

c.    The court failed to invite the applicant to address the question of extension of time;

d.    Despite:

i.    the court’s acknowledgement that “it’s a very technical legal argument”,

ii.    the applicant’s obvious confusion and fundamental misunderstanding of the nature of the proceeding,

iii.    the fact that the applicant had not personally prepared the grounds for review,

iv.    repeated references to the wrong country (Lebanon) in the grounds for review, and

v.    the applicant’s manifest unpreparedness to make submissions on the application for the extension of time and the substantive application,

the court failed to inquire as to whether the applicant was legally represented or intended to be legally represented at the final hearing of the matter, or to ask why the “lawyer” who appeared to have prepared the grounds was not present for him at the hearing.

(Footnotes omitted.)

33    By those failures, the Court was said to have failed to ensure the applicant would receive a fair hearing.

34    The Minister did not oppose leave being granted to the applicant to rely on the amended statement of claim. Accordingly, I granted leave, as well as dispensing with the remaining requirements in the Federal Court Rules 2011 (Cth) which would otherwise have followed from the filing of a statement of claim.

35    The applicant’s further affidavit filed on 23 September 2015 was the evidence upon which he relied at the hearing before me. It contained some evidence which had in substance been given in the applicant’s original affidavit, but also contained further detail about some aspects of his application for Ministerial intervention and his application to the Federal Circuit Court.

36    The applicant was not subject to any cross-examination on his evidence in this affidavit. No submissions were made on behalf of the Minister seeking to challenge or question any of his evidence. Those circumstances have some importance for the disposition of this application. It is necessary to set out the terms of the applicant’s evidence (omitting those parts which simply exhibit documents):

1.    I previously received assistance with my Protection visa application from Challenge Migration Services, and worked directly with a migration agent, namely, Ms Emily Saraya.

2.    Ms Saraya presented herself as being able to handle all the legal issues involved with my matter. She also went through other matters that she had worked on which were similar to mine in which she was successfully able to obtain her clients a visa, in order to illustrate that she had the relevant capabilities and experience to assist me.

3.    As a result, up until I was otherwise informed, I believed that Ms Saraya was a lawyer, who held all the necessary expertise and qualifications.

4.    Furthermore, given that I was paying a significant amount in fees to Challenge Migration Services and the fact that it was never previously mentioned to me that there would be the need for assistance from other individuals, I remained under the belief that Ms Saraya would be able to successfully assist me with my entire application. Accordingly, I did not seek out support from any other services.

5.    After my appeal to the Refugee Review Tribunal (RRT) was dismissed on 9th October 2013, I was advised by Ms Saraya to seek a ministerial intervention instead of lodging any form of appeal. I was told that this request, given my circumstances, in being a person of good repute and as a labourer with work skills, had a good chance of success and was thus the appropriate course of action.

6.    At the time, I was never informed of the option available to me, to appeal the matter to the Federal Circuit Court (FCC).

7.    Accordingly, I was never aware that there was a time limit for the lodging of an appeal of the RRT decision, until after my ministerial intervention request was rejected.

8.    Had I been aware of the fact that there was an opportunity to lodge an appeal against the RRT decision and that there was an applicable time limit in which to lodge, I would have requested that such an appeal be lodged in order to avoid missing the relevant deadline.

9.    It was only after my ministerial intervention request was rejected, that I learnt about the ability to appeal the RRT decision to the Federal Circuit Court.

10.    My FCC application which was eventually lodged with the court on 10th July 2014 was prepared by Ms Saraya. At no time did I assist in the drafting or formulation of the application.

11.    I also never had any involvement in the preparation of any other document related to my application. My contribution to all applications or requests was solely my signature to the respective documents. I signed these documents, when instructed to do so by Ms Saraya.

12.    On 11th June 2014, I was told to sign a letter noting that I prepared the Federal Circuit Court application by myself.

13.    Ms Saraya informed me the contents of the letters were that I had prepared the application myself, and that she had just assisted me with the preparations.

14.    Given that my understanding of English is limited, I did not completely understand the details contained in this letter and its effect. I only signed the document as a result of being instructed to do so by Ms Saraya.

…

16.    Throughout the process of my matter, I was never aware of the context and the details of the arguments in the documents lodged on my behalf as my ability to read and understand documents written in English is quite restricted. My limited understanding of what arguments were being made on my behalf, only came as a result of what was explained to me by Ms Saraya.

17.    My hearing date for the Federal [Circuit] Court was scheduled for 15th June 2015. Ms Saraya informed me that I should attend the hearing by myself. I asked her if she needed to attend, to which she responded that her attendance was not necessary. Ms Saraya explained that the point of the hearing was for the court to listen to my story and take evidence.

18.    I informed Ms Saraya that I had attended the court on the original hearing date of 15th June 2015 and that the matter had been postponed by a week, due to my involvement in a car accident. Ms Saraya once again re affirmed that there was no need for her to attend the hearing on the now re scheduled date of 23rd June 2015.

19.    Upon attending the Federal Circuit Court hearing on 23rd June 2015, I believed, based on advice provided by Ms Saraya, that this date was solely for the purpose of the court to gather evidence. I was thus unaware that from the hearing, the final decision on my matter would be made.

20.    Furthermore, given that Ms Saraya had informed me that she would not be attending, I did not believe that this was my last opportunity to present my case and thus did not think I needed to have my final arguments ready. As a result I was underprepared on the date of the final hearing.

21.    In particular, I was therefore not able to provide reasons for the delay in lodging the application which appealed the RRT decision.

22.    At no point did Ms Saraya ever inform me that I could have representation with me at the hearing and told me that it was suitable for me to attend the court by myself. Had I known that legal representation could have assisted me at the hearing, I would have undoubtedly arranged for such representation to attend and assist me.

23.    Since I did not prepare the application to the Federal [Circuit] Court and do not have a full understanding of the relevant legal principles that are applicable to my matter, I was unable to sufficiently argue the legal points at my final hearing and explain the reasons that there had been error in the RRT decision.

24.    During the hearing the judge presiding over the matter noted that it appeared that I had received assistance with the preparation of my application. I was asked by the judge as to who prepared the FCC application and I noted that it was prepared by my lawyer. This was because at the relevant time, I was still under the belief that Ms Saraya was my lawyer.

25.    I was also informed by Ms Saraya that the decision of the court would take approximately six to seven months and that in that time I would have further opportunities to put forward other claims to bolster my chances of receiving a visa. This turned out not to be correct, as the decision of the Federal Circuit Court was handed down just one week after the hearing on 30th June 2015.

26.    It was only after I visited Ms Saraya following the FCC decision and she noted that she could refer me to a lawyer, that I realised that she was not a lawyer.

27.    Had I been aware of the fact that Ms Saraya was not a lawyer at an earlier stage of this process, I would have immediately sought out to obtain the proper legal representation that was required, in order to avoid the delays that occurred in this matter and to ensure that I was properly represented.

37    Neither this affidavit nor the applicant’s earlier affidavit contained any indication that their contents had been translated into Arabic for him, nor that their contents had been interpreted to him. At the hearing of this application, on raising this with counsel, the applicant’s solicitor Mr Assaad gave some short evidence about the manner in which the applicant’s affidavits were prepared and affirmed. In substance his evidence was that each paragraph of the applicant’s affidavits had been translated to him by a person fluent in the Arabic language to ensure the applicant understood and agreed with their contents. The Minister did not cross-examine Mr Assaad. I accept his evidence.

38    Subject to the findings I make at [118] below, I accept the evidence given by the applicant.

The parties’ submissions

39    In his written submissions and by reference to the Federal Circuit Court transcript, the applicant contends that at that hearing:

The sum of the discussion of the application for extension of time was as follows:

HER HONOUR: … the purpose of that, if you’re seeking an extension of time, is to say why you didn’t file the application when it was supposed to do – when you were supposed to. So your application is, essentially, 240 days late.

THE INTERPRETER: Okay. He applied to – and then … the Minister rejected the application. That’s why he applied to the court afterwards.

HER HONOUR: So then looking at your substantive grounds …

(Footnote omitted.)

40    The applicant submits (at [14]-[15] of his written outline of submissions):

The court did not offer the applicant an opportunity to explain the reason for the delay (and thus the basis for the application to extend time). No further discussion was conducted regarding the application to extend time. Significantly, during the course of the hearing, the applicant was not asked a single question in relation to the basis for the application to extend time.

The entirety of the FCC application was disposed of by dismissing the application for extension of time, and this decision appears to have been made on the basis that “the applicant has not been able to establish any error of law on the part of the Tribunal”. The applicant submits that in circumstances (being the client’s confusion, lack of legal representation, and apparent unpreparedness to address the grounds in his application), and in combination with the total failure of procedural fairness that attended the decision, this was not an appropriate basis on which to dismiss an application for extension of time.

(Footnotes omitted.)

41    As to the factors relevant to the Federal Circuit Court’s decision whether to grant an extension of time, the applicant first submits that contrary to what is recorded in the Federal Circuit Court’s reasons, it was not the application for Ministerial intervention itself that was the reason for the delay, but rather that the applicant was not advised or made aware of any right to seek judicial review before the Federal Circuit Court until after the Ministerial intervention application was refused. This, he submitted, was a more cogent and persuasive explanation than the one attributed to him by the Federal Circuit Court.

42    In respect of the merits of his judicial review application, the applicant submits the Federal Circuit Court improperly relied on the substantive merits of the case as a primary basis for refusing to extend time. The applicant referred to observations of Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [102] that:

Where an application to extend time under s 477(2) of the Act is listed for hearing at the same time as the substantive application for review, and where full argument takes place in relation to the merits of the application, care should be taken to ensure that the issues that arise in relation to the extension application are dealt with clearly and discre[te]ly from the issues that arise in relation to the substantive application. That will avoid the sort of confusion that arose in this matter. Furthermore, when the merits of the substantive application are fully argued, it will ordinarily be quite artificial to import into the consideration of the extension application an assessment of the likelihood of success of the application. Where the only issue on the extension application is the merits of the substantive application, and where the merits are fully argued, the better course in all but clearly hopeless cases would be to extend time and deal with the merits on a final basis.

43    The Minister submits that, in the circumstances of this case, the content of the Federal Circuit Court’s procedural fairness obligations did not extend to enquiring whether the applicant was or intended to be legally represented, nor to ensuring that he had received legal advice, nor that he in fact understood the contents of the Minister’s submissions, nor that he understood the nature of the proceedings. The Minister contends it was a matter for the applicant as to whether he sought legal advice and from whom, and that there was nothing to indicate to the Court that he was under a misapprehension about the nature of his migration agent’s qualifications. The Minister submitted:

Beyond being satisfied that the applicant had received the [Minister’s] submissions and had the opportunity to read them and take advice about them, there was nothing further the Court should have done to ensure that the hearing was fair.

44    In any event, the Minister contends the application should fail on the basis the applicant has not shown he has suffered any “practical injustice” in the way the hearing was conducted in the sense of showing the loss of any opportunity to put an argument or information to the Court, relying on the reasons of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [36]-[38].

45    At the hearing, both parties sought to rely on aspects of the Full Court’s decision in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 to support their submissions.

Relevant provisions and the jurisdiction of this Court

46    Section 477(2) is in the following terms:

The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)      an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)      the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

47    There is no dispute the first limb of that test was satisfied by the written application to the Federal Circuit Court, and para (a) need not be considered further in these reasons.

48    While ordinarily an appeal lies albeit by leave from an interlocutory decision of the Federal Circuit Court, s 476A(3) of the Migration Act relevantly provides:

Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a)     a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or

(b)     a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).

49    The present application is thus by way of judicial review of, rather than appeal from, the Federal Circuit Court decision. It invokes the jurisdiction accepted by the Full Court of this Court in Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55. There, the Full Court considered whether Mr Tang’s proceeding to quash orders of the Federal Circuit Court refusing to extend the time for making an application to quash the “migration decision” of the Migration Review Tribunal was a proceeding “in relation to” that migration decision, and held at [11]:

Mr Tang’s proceeding to quash the orders made by the Federal Circuit Court is not “in relation to a migration decision” and s 476A(1) does not remove any original jurisdiction this Court otherwise had to hear his claim. As it happens, the Court has original jurisdiction to entertain applications for constitutional writs: Judiciary Act, s 39B(1). This is appropriate in the hierarchical structure of the federal judiciary where this Court is a superior court of record with appellate jurisdiction over the Federal Circuit Court. Consequently, Mr Tang’s suit in this Court was within its original jurisdiction. We would note for completeness that this conclusion means that there is no need for applications such as Mr Tang’s to be commenced in the High Court; they can be commenced directly in this Court under s 39B(1) of the Judiciary Act.

50    There have now been a number of decisions of this Court considering applications made under s 39B, following Tang: see for example SZRIQ [2013] FCA 1284; 139 ALD 252; my own decision in SZTSU v Federal Circuit Court of Australia [2015] FCA 224; and SZTES [2015] FCA 719.

Section 477(2) and procedural fairness

51    In SZRIQ, Foster J stated at [46]-[48]:

There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

(a)    Whether there has been a reasonable and adequate explanation for the applicant’s delay;

(b)    Whether there is any prejudice to the Minister;

(c)    Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

52    Recently in MZABP at [38] to [70] I have set out my views on the nature of the task under s 477(2), and I have also set out (at [29] to [34]) the somewhat fluid scope of jurisdictional error as a concept applying to the decisions of inferior courts.

53    Here, the applicant contends the Federal Circuit Court fell into jurisdictional error because the Court failed to afford him procedural fairness. The applicant’s submissions tended to mix the nature and content of procedural fairness obligations owed by administrative decision-makers and those exercising executive power with the nature and scope of the obligation as it applies to those exercising judicial power. The nature and content is not necessarily the same, although just as with administrative decision-makers, a denial of procedural fairness by a court is generally characterised as a legal error of a jurisdictional kind.

54    The Minister did not make any contrary contentions on these general matters in his submissions. Counsel correctly submitted that much depends on the particular circumstances facing a court. He submitted that in the particular circumstances facing the Federal Circuit Court in this case there was no denial of procedural fairness, especially given facts about the applicant’s situation not known to the Federal Circuit Court but which only emerged in evidence before this Court. Relying (as I have noted) on the words of Gleeson CJ in Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]-[38] counsel submitted the applicant needed to show some practical injustice flowed from the way the Federal Circuit Court dealt with the extension of time application.

55    SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88; 229 FCR 317 dealt with an egregious denial of procedural fairness, concerning the summary dismissal of an applicant’s judicial review application on the first return date on the Court’s own motion, in circumstances where the Minister was content for the matter simply to be programmed in the ordinary course for hearing.

56    At [43] the Full Court referred to a passage from the judgment of Gageler J in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [186], and the passage is worth repeating again:

Justifications for procedural fairness are both instrumental and intrinsic. To deny a court the ability to act fairly is not only to risk unsound conclusions and to generate justified feelings of resentment in those to whom fairness is denied. The effects go further. Unfairness in the procedure of a court saps confidence in the judicial process and undermines the integrity of the court as an institution that exists for the administration of justice.

(Citations omitted.)

57    In that case, the denial of the ability to act fairly of which Gageler J spoke was a denial implemented through the Queensland legislation there impugned. The effects however are no different where a court, through its own action, fails to adopt a fair process.

58    Gageler J also described (at [194]) procedural fairness as an “immutable characteristic” of a court. In a case decided at the same time as SZWBH, Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301 at [41]-[44], the Full Court gave the following summary of the way procedural fairness manifests itself in a court exercising judicial power:

At the level of general principle, it is as true now as it was in 1944 that:

It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.

(Cameron v Cole at 589 per Rich J)

In Re JRL; Ex parte CJL at 350 Mason J said:

A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed.

There are many more recent restatements of similar principles.

In International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at [54] French CJ, stated:

Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary.

The Court’s duty to assist self-represented litigants

59    Bound up with the obligation to act in a procedurally fair manner is the suite of obligations attending the manner in which courts deal with self-represented litigants. These are issues of considerable complexity, both in terms of how the principles which have been articulated are in reality to be applied by judges responsible for the conduct of trials and hearings involving a self-represented party, and in terms of working out the consequences of identifying failures or omissions to act entirely in conformity with those principles.

60    The interconnection is critical in the determination of the present application because the contentions of the applicant all revolve around what he submits the Federal Circuit Court should have done, because he was self-represented.

61    Some of the relevant authorities were considered by the Full Court in SZRUR [2013] FCAFC 146; 216 FCR 445. The proceeding concerned an appellant who had not appeared at his review hearing in the Tribunal. He said this was because he did not know about it. He alleged his migration agent had fraudulently placed his signature on the Tribunal hearing response form without his authority and thus falsely represented to the Tribunal that the appellant was aware of the review hearing date and would attend on that date. In the Federal Circuit Court, where the appellant was self-represented, he was unsuccessful because the Court found it did not have sufficient evidence before it to prove fraud. The Court found there was insufficient documentary evidence and the appellant’s account given from the Bar table could not be taken into account.

62    On appeal the Full Court held the appellant had been denied procedural fairness by the Federal Circuit Court. Robertson J (with whom the Chief Justice and I agreed) said (at [39] and [43]):

I see no difficulty as a matter of fairness in the primary judge telling the appellant that if he wanted the Court to rely on his statements from the bar table it was necessary for the appellant to go into the witness box and make those statements formally after having been sworn. It is not at all clear that the appellant understood that procedure without it having been explained to him by the primary judge. I infer that the appellant was unaware that the statements he was making from the bar table would not be taken into account by the Court as evidence. The transcript appears to show the primary judge encouraging the appellant to “tell” the judge matters from where he was.

…

In my opinion, in the circumstances, the failure to explain the procedure to the appellant was not fair and it could have affected the outcome. I take into account not only that the appellant was self-represented but also that he could not speak or read English. I also take into account the importance to the appellant of the subject matter of his application to the Federal Circuit Court. As I have noted, the primary judge did not apparently advert to the appellant’s statement that he did not authorise the migration agent to sign any documents on his behalf.

63    The Chief Justice added, at [53]-[55]:

With respect, it was not appropriate to simply hear him from the bar table and dismiss his case. Dealing with litigants in person is difficult. SZLIX reveals the difficulty of the type of case that this litigant in person had. Procedural fairness required at least that this appellant be given the opportunity of going into the witness box to give evidence, with knowledge of the issues that he had to address, including the exploration of the role of the migration agent. He was not afforded that fairness.

He should have been sworn and possibly, at the end of that evidence, he may have been required to be told of the inadequacy of the matters thus far, and of the issues that he had to address. He may not have been able to do so, but that is not the point. These are difficult cases. Nevertheless, that difficulty does not mean that they should be dealt with other than with due procedural care and, where necessary, important formality.

The appellant is entitled, and was entitled, to a hearing reflecting the indicia of the exercise of the judicial power of the Commonwealth. He may well have lost his case, but he is entitled to lose his case after a hearing which has afforded him procedural fairness as an incident of the exercise of the judicial power of the Commonwealth.

64    I expressed similar views, adding (at [60]):

… as the New South Wales Court of Appeal in Hamod observed at [312], the primary judge was also required to put an unrepresented litigant in a position to make an effective choice about how to conduct his case.

65    A great deal of the judicial consideration on the content of the obligation to ensure a fair trial for a person who is self-represented was collected by Bell J in Tomasevic v Travaglini [2007] VSC 337; 17 VR 100. One of the two grounds on which Bell J allowed the proceeding to succeed was that there had been a breach of natural justice because the County Court judge (who heard Mr Tomasevic’s appeal from his conviction in the Magistrates’ Court) failed to perform his duty to give sufficient assistance to Mr Tomasevic as a self-represented litigant. As the authorities (both Australian and comparative) to which his Honour refers make clear, the complexity for a supervising or appellate court arises in determining how much assistance is sufficient, before the judge and the court cross a line, which is far from well illuminated, and become an advocate for, or advisor to, the person.

66    Bell J’s decision did not take into account the provisions of the Victorian Charter of Human Rights and Responsibilities, because the events in dispute predated the Charter’s commencement. Separately however, his Honour also considered a range of international human rights cases, including human rights cases from jurisdictions such as the United Kingdom, especially in examining the right to equality before the law and how that might inform, and give content to, the duty to afford procedural fairness.

67    Drawing on authorities at state and federal level, his Honour noted at [73] the many ways in which Australia’s international obligations under treaties such as Art 14 of the 1966 International Covenant on Civil and Political Rights can at least inform the interpretation of statutes (so as to be consistent with and not to abrogate international obligations), the exercise of relevant statutory and judicial powers and discretions, the application and operation of the rules of natural justice, the development of the common law and judicial understanding of the value placed by contemporary society on fundamental human rights.

68    He noted very early statements endorsing the importance of a fair trial, albeit often in the context of the criminal law, such as the statements of Isaacs J in R v Macfarlane; Ex parte O’Flanagan [1923] HCA 39; 32 CLR 518 at 541 that there was an “elementary right of every accused person to a fair and impartial trial”.

69    At [79], he noted that Mr Tomasevic, in common with many self-represented litigants, lacked two critical qualities possessed by competent lawyers: professional skill and ability, and objectivity. The lack of these two critical qualities put Mr Tomasevic at considerable disadvantage in putting his claims to the County Court judge.

70    Bell J referred to the decision of the High Court in MacPherson v The Queen [1981] HCA 46; 147 CLR 512, decided before Dietrich v The Queen [1992] HCA 57; 177 CLR 292. In that case the High Court described at 542 the duty of a trial judge to ensure a fair trial had:

no limited category of matters regarding which a judge must advise an unrepresented accused – the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial.

71    At [89] Bell J cited a lengthy list of cases which dealt with the application of these principles in civil trials. In particular his Honour referred to a decision of the Full Court of this Court in Abram v Bank of New Zealand [1996] FCA 635; ATPR ¶41-507, at 42,347, where the Court (Hill, Tamberlin and Sundberg JJ) said:

What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.

72    One guiding approach is to ask whether a litigant has been given sufficient information by a judge so as to enable the litigant to make an “effective choice” in the conduct of the proceedings: see Hamod v State of New South Wales [2011] NSWCA 375; and my reference in SZRUR [2013] FCAFC 146; 216 FCR 445 at [60]. Another decision which employed that approach is R v Gidley [1984] 3 NSWLR 168, a decision of the NSW Court of Criminal Appeal.

73    As Bell J recognised in Tomasevic, another authority which has long been seen as offering guidance is Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; 84 FCR 438, a decision of the Full Court of this Court. The Court (Sackville, North and Kenny JJ) said (at [29]):

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.

74    Where, and how, to draw the line between assistance and advice or advocacy, which I have described as not well illuminated, is informed by the approach of Smith J in Panagopoulos v Southern Healthcare Network (unreported, Sup Ct, Vic, 15 September 1997), to which the Full Court in Minogue referred. In Panagopoulos at 9 Smith J said:

In my view, however, the need to preserve the appearance of neutrality should be seen as marking the boundary for judicial intervention. It is a boundary that is flexible and its location will be affected by the circumstances of the case. It will be affected by the extent to which a judge needs, and may properly be seen to need, to intervene to ensure a fair and just trial.

75    I would add the point made by the Court of Appeal in Hamod at [310] that the Court’s duty to ensure a fair trial is not just a duty owed to the self-represented litigant, but to all parties. Where conduct by a court designed to assist a self-represented litigant unduly disrupts or disturbs the balance of a trial or hearing, the trial may become unfair to another party.

76    Two further matters should, in my opinion, be recalled. First, courts applying these principles to completed trials and hearings (whether by way of review or appeal) do so with the benefit of hindsight, removed from the sometimes tense and adversarial atmosphere in which decisions about how to assist a self-represented person are in fact made, and far away from the pressures of getting through busy court lists. Reviewing and appellate courts, as in the current case, may also be better informed about what the self-represented person wished to achieve, do or say, during the trial or hearing.

77    Second, as the Full Court in Shrestha [2015] FCAFC 87; 229 FCR 301 said at [53]-[54], and subject to any legislative provisions manifesting a contrary intention, the pressures which may be involved in hearing and determining matters in the migration jurisdiction of the Federal Circuit Court do not mean that applicants in that jurisdiction should receive hearings which do not accord with the principles set out above:

The pressure of high volume decision-making, such as that undertaken by the FCC in the migration jurisdiction, should be recognised. Essential tools in managing high volumes of cases include the show cause process in Pt 44 of the FCC Rules, and the power outside that process, in s 17A of the FCC Act, summarily to dismiss a judicial review application. The existence and utilisation of those processes do not obviate the need to consider the material before the Tribunal (rather than simply its reasons), nor to explain in plain terms to unrepresented applicants that they must identify to the Court why the Tribunal’s decision was not made lawfully and by a fair process. Insisting to an unrepresented applicant that she or he identify a “jurisdictional error” is a pointless, and unfair, exercise. Further, the processes in s 17A and Pt 44 do not remove the obligation to give parties, whether represented or unrepresented, some reasonable time to regularise their materials and present their arguments.

It is no fault of an individual litigant in a migration judicial review that there are thousands of other migration cases, nor that there are insufficient resources to provide all impecunious applicants with legal representation. Much is at stake for an individual litigant in the migration jurisdiction in the sense of fundamental rights, including her or his liberty in Australia by reason of the mandatory detention regime in the Act. High volumes of cases should if anything give rise to extra caution to ensure no injustices are being done because of judicial workload pressures.

Consideration

78    If there has been a denial of procedural fairness (whether by a failure in the Court’s duties to a self-represented litigant or otherwise) and that failure is properly characterised as jurisdictional, this Court retains a discretion concerning whether to grant relief. However, given the error is jurisdictional and therefore the underlying proposition is that the Federal Circuit Court acted without power or authority in making the decision it did, the threshold is relatively low: whether the denial of procedural fairness denied the applicant the possibility of a successful outcome (see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147, and Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [56]).

79    In this case, the Minister submitted that the decision in SZTES [2015] FCA 719 demonstrated that an applicant needed to show an arguable error in the way the Federal Circuit Court dealt with the alleged jurisdictional errors in the Tribunal’s decision. That is, an applicant needed to show some prospects of success in impugning the Tribunal decision before an order in the nature of certiorari should issue to quash the decision of the Federal Circuit Court not to extend time. I do not accept that proposition as a necessary condition precedent to the grant of relief in all judicial review applications of this kind. It may be that often an argument about why the Federal Circuit Court was wrong to find no reasonably arguable grounds of review as part of its refusal to exercise the discretion in s 477(2) will form part of an applicant’s contentions under s 39B but the nature of the challenge to the Federal Circuit Court decision need not involve such an argument. Unlike SZTES, that is the case here. The applicant’s case is squarely (and only) based on a denial of procedural fairness by the Federal Circuit Court. The key result of the denial of procedural fairness was, the applicant submits, that he did not have the opportunity to retain a lawyer to examine the Tribunal’s decision and give him proper, and qualified, advice on whether there were any arguable legal errors in the decision, or whether he had an arguable case that he had been denied procedural fairness.

80    As I have noted, no aspect of the applicant’s evidence to this Court was contested by the Minister. However, what the applicant now says in evidence to this Court about his state of knowledge, and what he would have done at the hearing before the Federal Circuit Court, must nevertheless be seen in the context of what did in fact occur at the hearing. In my opinion, the question is: what could the Federal Circuit Court have reasonably been expected to know from the material before it, and from what the applicant said during the hearing?

81    It is correct, as the Minister submitted, that the hearing had been adjourned on a previous occasion because the applicant was unwell and unable to proceed, although he was in attendance. In that sense, this was not his absolute first time in the Federal Circuit Court, and on the last occasion he had secured an adjournment. The Minister submitted this Court should infer the applicant therefore knew how to seek an adjournment if he wanted one, and could have done so if he thought he needed to have the person he considered to be his lawyer present. Indeed, the Federal Circuit Court and the Minister’s counsel were contemplating a second adjournment because no interpreter had attended court to assist the applicant. The transcript records the interpreter arriving some minutes after the hearing commenced, and so the Court proceeded to deal with the matter. There is some force in this submission. I accept the applicant did understand he could ask the Court to postpone the hearing.

82    There were three ways in which the applicant submitted the Federal Circuit Court denied him procedural fairness: failure to make it clear the hearing was a final hearing at which his judicial review would be determined and what the applicant needed to do at such a hearing; a failure to invite the applicant to explain the real reason for the delay in filing the judicial review; and whether Federal Circuit Court should have made further inquiries of him about the status of the applicant’s legal representation. I consider each of those in turn, but first I set out my findings about the course of the Federal Circuit Court hearing.

83    Both parties submitted that there was in fact no lawyer on the record for the applicant, and although the application contained parts which were expressed in the kind of language a lawyer might use, especially in relation to the grounds of review, the parties agreed the Federal Circuit Court was required to treat the applicant as self-represented. I agree.

84    The applicant’s evidence, which I accept, is that he thought he was legally represented. He thought Ms Saraya was a lawyer and would give him all necessary assistance in that capacity. He was very much mistaken on both counts.

85    I accept the applicant’s submission that although in response to a question from the Federal Circuit Court whether he had read the Minister’s submissions, the applicant said that he had, it is clear from the remainder of the transcript that the applicant did not attempt to address the contents of those submissions to the extent they were against his interests. I am prepared to infer that is because he did not understand them. His answers to the Federal Circuit Court judge are consistent with a lack of understanding about the need for him to focus on legal errors. More importantly, there is nothing to suggest in the evidence that the applicant had the experience, training or capacity to make any meaningful submissions on legal errors. That is why, as he deposed, he had paid for a person to represent him, who he thought was a lawyer.

86    The way the Federal Circuit Court informed the applicant of what was happening was the following. Just before the interpreter arrived, the Federal Circuit Court said to the applicant that when the interpreter did arrive “we will be able to proceed”. I doubt the applicant understood this meant anything beyond the Court was going to continue in session – but I am not satisfied he knew what for. However the Federal Circuit Court then asked him whether he had his extension of time application with him and directed his attention to the grounds. The following exchange occurred:

HER HONOUR: All right. Because that’s – the purpose of that, if you’re seeking an extension of time, is to say why you didn’t file the application when it was supposed to do – when you were supposed to. So your application is, essentially, 240 days late.

THE INTERPRETER: Okay. He applied to – and then ..... the Minister rejected the application. That’s why he applied to the – this court afterwards.

87    Her Honour then told the applicant she was looking at his substantive grounds for judicial review, explaining the purpose of the hearing in the following way:

HER HONOUR: So then looking at your substantive grounds, the application for review, so page 4, you really – it’s really, say, point 2, 3 and 4. What you need to understand is that this hearing is a judicial review. So it’s considering whether or not the tribunal made an error of law. So it’s not considering the merits of your case again. So what you need to do is to make arguments in support of the grounds that you have set out in your application. So we’re going to look at those one at a time. Okay.

THE INTERPRETER: Okay. I will explain this part to him, your Honour.

88    Although her Honour used straightforward language, which was interpreted, I am satisfied this explanation would have meant little in any substantive way to the applicant. The distinction between law and merits was not explained, not that an explanation would necessarily have advanced matters much. There is no reason to suppose the applicant understood what he needed to say to “make arguments in support of [his] grounds”, as opposed to telling the Court why the Tribunal should have decided in his favour.

89    Her Honour then tried a more direct approach to get the applicant to articulate what he said was wrong with the Tribunal decision, although the interpreter then started to go beyond the interpreter’s role so that the answers given by the applicant in response to the interpreter’s unhelpful and inaccurate prompting became misdirected:

HER HONOUR: Yes. I’ve got a copy of that. But you see – but you need to point out what is it that – what document do you say the tribunal didn’t consider. Because I’ve read this. I’ve read that. But the tribunal refers to the documents that you gave it, and it’s made an assessment about it, so what is it that you’re saying that the tribunal has gotten wrong?

THE INTERPRETER: They did not understand the fact that he was a member of the political party in Egypt, the national political party. That’s the point he want to basically bring to your attention, your Honour. Because they don’t – they underestimate this fact, because as a member in this particular party – and that was one point he wanted to mention here, to indicate the fact that he will be in danger if he would – should return back to Egypt. He was telling me that there – all the events that are going on now in Egypt, and I’ve asked him this. “Will that affect your personal safety? You need to point out to the court what is the link between these events in Egypt and your personal safety. You need to bring that to the court’s attention, if you can.”

This is the point, he said. As a member of the national Egyptian party that was the dominant party in Egypt since the days of Mubarak, he was one of the members, and he is supporting members of that party. And that is the fact – and this is the point why he is prosecuted by the Muslim Brotherhood members, because of this fact. That’s why he made his way to Australia, escaping the danger of being prosecuted for this fact.

HER HONOUR: Is there anything you want to add to that ground before we move on to the next point you make?

90    The applicant corrected the country mentioned in the grounds from Lebanon to Egypt and when asked if he wanted to say anything more, he began to tell the Court about how his life had been hold for the last two years. Her Honour then moved him on to the final two grounds in the application, and there was some discussion about documents, which does not seem to reach a firm conclusion.

91    Her Honour then said:

HER HONOUR: It’s not the decision I’m talking about; it’s the transcript of what occurred before the tribunal on that day, which is something that he would have had to have arranged, asked for, if he wanted it. Now, it may be that there are parts of the decision that he wants to point me to where he says, “Look, it’s clear they’ve made a mistake,” and he can certainly do that.

THE INTERPRETER: Okay. Your Honour, he said his lawyer which represented him before the tribunal has mentioned in this book what happened in the tribunal proceeding, and it should be here. I’m asking him whether he knows which page. His lawyer arranged his application to the Minister for Immigration after the tribunal rejected his claim.

HER HONOUR: Yes. I think the Minister also refused to intervene.

THE INTERPRETER: That’s correct, your Honour.

HER HONOUR: So turning to the last point, which is that the tribunal decision was affected by bias, what’s the basis for saying that? Because bias is quite a difficult thing to establish.

THE INTERPRETER: ..... , your Honour.

HER HONOUR: Yes. It’s really the last sentence. All he says is that the decision was affected by bias.

THE INTERPRETER: Yes. I will ask him what does he mean by that.

HER HONOUR: Yes. Because it has to be something more than simply not agreeing with the decision that the tribunal made or the conclusion that it reached.

THE INTERPRETER: He said this was written by his lawyer.

HER HONOUR: Yes.

THE INTERPRETER: Not his – not his own words.

HER HONOUR: Okay.

THE INTERPRETER: There’s no answer of what is actual bias here.

HER HONOUR: Okay.

THE INTERPRETER: I explained this word to him in Arabic - - -

HER HONOUR: Yes.

THE INTERPRETER: - - - asking him explanation. He said, “I don’t know when they make their decision on what basis. That’s why I felt like it’s personal, or, like, something affected by other factors - - -”

HER HONOUR: All right.

THE INTERPRETER: “- - - not on a lawful factor.”

92    Thereafter, her Honour listened to submissions from the Minister’s counsel. Aside from his written submissions, counsel took the Federal Circuit Court briefly through a couple of points.

93    The interpreter then appeared to continue to take a more active role than just interpreting, and purported to “explain” things to the applicant, which appears to have prompted the applicant to repeat to the Court some of the claims he made to the Tribunal.

94    Having seen how the hearing progressed, it is unsurprising the Federal Circuit Court said in its reasons that the applicant focused on the merits of the Tribunal decision rather than on legal error. Her Honour gave the applicant little indication, or assistance, in doing otherwise, especially when it was clear the interpreter was completely misdirecting the applicant’s attention to the merits of the Tribunal decision, no doubt with the best of intentions but as it turned out, most unhelpfully.

95    Before concluding the hearing, the Federal Circuit Court asked if there was anything the applicant wished to add. He said:

THE INTERPRETER: Okay. Your Honour, he said, “All I need is just to be allowed to start my life. I don't want to be relying on the Government by any means. I will work hard and I will pay my tax.” And, yes, because he said, “I’m 45 years of age now, and I am more than happy to start seeking work and hard – in the society here without asking for any help from the Government.” Okay, also he added he feels safe and secure while in Australia, so he’s seeking justice. He said, “I’m looking for justice.” Also he had a – he had an immaculate – like, his affair and all his life was clear and he got the police check to the effect that he is having no problem; he doesn’t have any trouble or any involvement in any kind of trouble. He said, “I place my life under your .....”

96    Her Honour and the Minister’s counsel then discussed whether the Minister sought costs if the proceeding was dismissed. I infer, given the interpreter’s activity to date, that the interpreter explained this discussion to the applicant.

First alleged denial of procedural fairness: failure to inform of final hearing and what the applicant needed to address

97    Although it could have been clearer, I am satisfied the Federal Circuit Court was not required to do more to inform the applicant this was a final hearing. The applicant had attended for a final hearing a week earlier and had sought an adjournment for health reasons. Whether or not he thought there would be more time before a decision and perhaps further time to put in arguments in writing (as his affidavit suggests), I am satisfied he understood this was his chance before the judge. His last statement in particular (which I have extracted at [95] above) had a sense of desperation and finality about it. He was doing his best, in his own way, to persuade the judge to find for him.

98    The Federal Circuit Court did not explain in ordinary language what the applicant needed to prove, but in judicial review that is a difficult task. Her Honour did ask the applicant what was wrong with the Tribunal’s decision. The interpreter’s intervention certainly directed him strongly to give an answer about why the Tribunal should have found in his favour and why he had a well founded fear of persecution in Egypt. In my opinion even with the most careful explanation of the distinction between errors of law and the ultimate decision to be made about the risks to the applicant on return to Egypt, he is likely to have given the same kind of answers.

99    I am not satisfied that the applicant was denied an effective choice of how to conduct his application for an extension of time because of the way the Federal Circuit Court explained to him what the hearing was about. As I said, I am satisfied the applicant knew this was his chance before the judge, and in that sense understood he needed to put forward to her Honour what he wanted to say by way of persuasion. It was not within his capacity to put a sophisticated legal argument that could match in any way the manner in which his grounds of review were expressed. The best that could be done in this sense was what her Honour did – asking the applicant to tell her what he said was wrong with the Tribunal decision. The applicant did not ask to be able to talk to his lawyer again, nor to get his lawyer to answer some of the Court’s questions. My impression from reading the transcript, even with the applicant’s evidence, is that he did perceive the Court was against him and he did his best to say what he could, realising he was likely to lose. I accept he now knows what else he might have said, or done. That acquired knowledge does not affect or alter the lawfulness of the Court’s process on 23 June 2015.

100    In a judicial review application (or an extension of time application in relation to judicial review) the absence of legal representation for an applicant will almost always mean an applicant will be unable to advance a case commensurate with the kind of arguments that are likely successfully to impugn the decision under review. Of course some self-represented people have the capacity to put some arguments – whether through previous court experience, study, outside assistance or simply natural talent. The vast majority do not, especially when additionally disadvantaged by issues of language and unfamiliar culture. In this context, what the descriptor “fair hearing” encompasses is open to debate, even if the phrase is confined to procedural fairness. The disparity of resources and capacity is too great for a hearing to be “fair” in the way a hearing can be “fair” when the parties are legally represented. All the judge can do is to make the process as fair as possible and then, in my opinion, do her or his best to be astute and alert to the possibility of legal error in the tribunal’s decision when considering the material before her or him, and be prepared to raise any such possibilities with the Minister’s legal representatives.

101    I am not persuaded on the balance of probabilities that her Honour failed to give the applicant sufficient assistance in understanding this was a final hearing.

Second alleged denial of procedural fairness: failure to invite the applicant to address extension of time

102    Counsel for the applicant contended, on the basis of the applicant’s evidence, that he did not have an opportunity to put to the Federal Circuit Court the real reason for the delay in seeking judicial review. The real reason, counsel contended, was that he did not receive advice about his right to apply to the Federal Circuit Court until after the Ministerial intervention application failed. In other words, he did not make a choice to seek Ministerial intervention in preference to judicial review: he did not know he had a right of judicial review.

103    I accept the submissions on behalf of the applicant that there is a material difference between that reason and the reason the applicant appeared to give at the hearing and on which her Honour acted. I have reproduced that reason at [86] above – in answer to her Honour, the applicant referred to Ministerial intervention. His affidavit in support of his application before the Federal Circuit Court also did that. That affidavit, on his evidence, was prepared by Ms Saraya. If the applicant did not know about being able to come to the Federal Circuit Court, he could have said so in his affidavit when (I infer) Ms Saraya was assisting him.

104    The problem here is twofold. First, although paragraph [20] of the Federal Circuit Court’s reasons does appear to indicate that the absence of an acceptable explanation for the delay formed part of the reason her Honour refused leave, in my opinion it is clear from the structure and content of her Honour’s reasons that the main consideration was her Honour’s opinion whether the judicial review grounds put forward by the applicant had merit. As I noted in MZABP [2015] FCA 1391, there may be a tendency to elevate consideration of the merits of the grounds into a de facto final hearing and there are aspects of her Honour’s language which suggest that is precisely what occurred here, especially the first sentence of paragraph [20]. On the present contentions concerning procedural fairness, what is important is that in my opinion it is clear from her Honour’s reasons that even if the applicant had put forward with clarity and persuasion the reason he has now articulated, her Honour would have reached the same conclusion on his application. There was no real possibility of a different outcome for the applicant.

105    Second, even if I am wrong to draw that inference, I am not satisfied on the balance of probabilities that her Honour failed to give the applicant a reasonable opportunity to explain the reason for the delay in filing the judicial review application. First, he had the opportunity in his supporting affidavit which he has deposed was prepared with Ms Saraya’s assistance. Second, her Honour gave him at least two other opportunities during the hearing. On all occasions he referred to Ministerial intervention.

106    Although I accept that with hindsight, and better advised, the applicant now appreciates that he could and should have explained the reason differently, there is no denial of procedural fairness in the way her Honour dealt with this issue, as it was presented to the Court at the time.

Third alleged denial of procedural fairness: whether the Federal Circuit Court should have made further inquiries about the status of the applicant’s legal representation

107    In my opinion this issue is qualitatively different from the applicant’s first two contentions. It is also the feature which marks the applicant out from many others who appear before the Federal Circuit Court and before this Court. The applicant deposed that he had paid for what he believed to be legal representation, and was prepared to continue to do so including before the Federal Circuit Court. Indeed, he thought that is what he had done. His evidence on this matter should be accepted and was not challenged by the Minister.

108    I find he did at all material times believe that Ms Saraya was a lawyer and was able properly and competently to represent him not only before the Tribunal and to the Minister but also in the Federal Circuit Court. He believed she would, and could, advance his interests through the material she prepared for him to submit to the Court. He trusted her advice that it was not necessary for her to go to any hearings. He trusted her advice that there would be further opportunities for him to submit material outside the hearing. On all these matters, he was wrongly and badly advised. The Minister did not submit otherwise.

109    In submissions, counsel for the Minister accepted that if the applicant had positively put the Court on notice that he had a lawyer who he wished to have present and to present his case, the Court would have been obliged to consider whether to adjourn the matter. Quite properly, the Minister submits this Court cannot say that inevitably there would have been an adjournment – that would have been a matter for the Federal Circuit Court. However, for the Federal Circuit Court to press on with a final hearing in the face of an applicant saying to the Court that he had a lawyer and he wanted his lawyer present, or wanted further assistance from his lawyer, would have been a less likely exercise of discretion than to grant an adjournment.

110    What is more likely, as the applicant’s counsel submitted, is that once the issue of the role of the applicant’s lawyer was raised in a positive sense, the truth about Ms Saraya’s position (or lack of it) is likely to have emerged. Again, in those circumstances and in the face of the applicant’s evidence (which I accept) that he would have sought to retain a properly qualified lawyer to assist him, there was a real possibility the hearing would have been adjourned so that the applicant could retain a lawyer and be properly advised about the Tribunal’s decision and his options.

111    How though, in the circumstances as they were on 23 June 2015 and without the benefit of hindsight, can her Honour be said to have failed in her duties to the applicant as a self-represented person, as the authorities to which I have referred have described those duties? Was the applicant given a reasonable opportunity to present his case and sufficient assistance to make effective choices about how his application for an extension of time was put before the Court? As I have observed above, in proceedings in the nature of judicial review there is an artificiality in asking these questions in respect of a self-represented asylum seeker and that artificiality must be recognised, and faced up to. In a proceeding which takes as its subject matter detailed and complex legal analysis of an administrative decision, dependent on identifying only certain kinds of errors, there is little substantive “fairness” in expecting a person in the applicant’s position to be able to develop and present his own case.

112    So too however do these circumstances affect the nature of the Court’s role, and the content of its procedural duties. In my respectful opinion, the Court may need to be more astute, and more active, to assist litigants in the position of the applicant, as well as alive to the possibility of jurisdictional error being apparent on the evidence and material before the Court. But the Court’s role in the exercise of independent and impartial judicial power means it cannot become an advisor to or advocate for an applicant.

113    If, in circumstances involving the exercise of a judicial discretion, a court is or should be put on notice, through the evidence and material before it, of an arguable substantive legal error in the decision sought to be reviewed (including denial of procedural fairness by the Tribunal), then the Court has a duty to assist a self-represented person sufficiently to ensure the arguments about that legal error can be properly developed and considered. What that involves in any given case may vary depending on individual circumstances. Similarly, if a court is or should be put on notice, through the evidence and material before it, of an arguable procedural problem in its own proceeding that may deprive a litigant of an effective choice in the proceeding, or impede the litigant’s opportunity to present her or his case and arguments, then in my opinion the Court may have a duty to assist a self-represented person to surmount that procedural problem.

114    In the present case, there is no basis, and the applicant’s submissions did not suggest, that the Court failed in its duties to the applicant because there was some obviously arguable substantive legal error apparent on the evidence and material which the Court itself should have identified. Rather, the applicant focused on what I have described as a “procedural problem” in the Federal Circuit Court’s own proceeding: the status and role of the applicant’s legal representation.

115    I find her Honour was, or reasonably should have been, aware the applicant had a “lawyer” who was, at least, advising him. The applicant said as much during the hearing on several occasions. Further, in her reasons at [18] her Honour said:

The applicant makes a complaint that the Tribunal’s decision was affected by actual bias. The applicant did not expand upon that in the application and when asked to expand on that at the hearing the applicant indicated that his lawyer had prepared that and that he felt that he did not understand the basis for the Tribunal’s decision and therefore it must be based on some personal element.

116    It is somewhat inexplicable why her Honour did not enquire where the applicant’s lawyer was, and why the lawyer was not on the record and attending the hearing. As the Minister submits, there are circumstances in which litigants in the migration jurisdiction secure some legal advice or assistance in preparing documents but do not retain a lawyer to act on their behalf and this may explain her Honour’s lack of further enquiry. As far as the Federal Circuit Court’s record was concerned, there was no solicitor on the record as acting for the applicant. That is now explained, on the evidence before this Court, by the fact that Ms Saraya is a migration agent and not a lawyer and, I infer, at least knew well enough not to put her name to any court documents or purport to act on behalf of the applicant so far as the Court’s records were concerned.

117    The applicant did not positively say to the Federal Circuit Court that he needed or wanted his lawyer present. He did not ask the Federal Circuit Court to adjourn the hearing so he could contact his lawyer and ask what to do. His affidavit evidence at [22] (which I have extracted at [36] above) suggests he was under a misapprehension, created by Ms Saraya, that he did not need legal representation at the hearing.

118    I find that asserted misapprehension difficult to accept in the absolute way it is stated in his affidavit and relied on by counsel for the applicant in argument. The applicant had attended a hearing a week or so before the hearing on 23 June 2015. The evidence does not reveal whether he received the earlier directions made by the Federal Circuit Court, or why he did not attend the directions hearing. But from his attendance on the first date his proceeding was listed for hearing (that is, 15 June 2015), he had an opportunity to see the court setting, to see that the Minister had a lawyer present, to see the formality of the Court, and to see that if he did not have a lawyer he was required himself to speak to the judge and conduct his case.

119    The applicant has been in Australia for some time. He arrived on a student visa and it appears from the evidence he has been working in Australia for some time. He has some understanding of English, although it is limited.

120    Although he deposes to speaking to Ms Saraya after the adjourned application and deposes that she confirmed to him that there was no need for her to attend the adjourned hearing on 23 June 2015 because the purpose of the court hearing was “to gather evidence”, I am satisfied that, at the least, once the applicant got to the hearing on 23 June, having the assistance of the interpreter, it should have been obvious to him the hearing was not simply of the nature Ms Saraya explained to him. It was obvious the Minister had a lawyer there, and that the Court was asking him for details about his arguments. It was obvious to him he could not provide the details the Court sought, and he said as much. I have already found that, on the basis of the transcript, on the balance of probabilities the applicant did understand this was his last chance before the judge, whatever else might happen thereafter.

121    Counsel for the applicant submits it was a “straightforward” thing for the Federal Circuit Court to have asked the applicant where his lawyer was, and that from this simple question the whole misunderstanding of the applicant would have tumbled out and been revealed. So much may be accepted as a possible, perhaps readily possible, scenario.

122    However that submission avoids the key question. Was the Federal Circuit Court required to ask that question? Was the question integral to a fair hearing for the applicant, in the circumstances as they then stood? In my opinion, on the evidence and material as it was before the Federal Circuit Court, and putting to one side the benefit of hindsight now available because of the evidence the applicant has given to this Court, it cannot be said her Honour was obliged to inquire further about the status and role of the applicant’s lawyer, to whom he had referred. The circumstances as they presented themselves to her Honour suggested the applicant had some limited advice and assistance, but there was nothing to suggest any more than that. Her Honour was entitled to proceed on the basis the applicant was, like many other litigants in this jurisdiction, self-represented, although he had sought some limited legal assistance. Her Honour then did her best to tease out from the applicant what his complaints about the Tribunal decision were, and what was his explanation for the delay in seeking judicial review. Some judges may have been inclined to do more than her Honour, but it cannot be said in my opinion her Honour was required to do more.

123    The hearing the applicant secured before her Honour was as fair as that secured by other litigants in his position. If events had unfolded differently, and her Honour had asked more questions about the lawyer to whom he had referred, the applicant may have eventually had an opportunity to have a qualified lawyer look over the Tribunal decision with his instructions and formulate grounds of review that could be characterised as arguable. That is a possibility but it cannot be said in the circumstances to have been his legal entitlement to have those further questions asked of him.

124    At some stage, courts may have to confront more squarely the increasing disparity of resources and capacities attending the way judicial review proceedings in the migration jurisdiction are conducted. They may have to confront what needs to be done to ensure that what occurs in Ch III courts does not appear to be but a veneer of fairness.

125    On this occasion, I am not satisfied on the balance of probabilities that her Honour failed to discharge her duties to the applicant to ensure that he had an effective choice in presenting his case for an extension of time, and that he had a reasonable opportunity to do so.

126    As the Minister’s counsel appropriately recognised, prior to the retention of his current legal representatives, the applicant had been badly advised, and perhaps more. However his remedy, if he has one, is not through this proceeding.

127    In the circumstances, I do not consider it is in the interests of the administration of justice to require the applicant to compensate the Minister for the costs of this application. The interests of justice have not been well served by the circumstances of this case and I do not propose to add to that imbalance with a costs order.

Associate:     

Dated:    9 December 2015