AMV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The interlocutory application dated 31 January 2020 is dismissed.
2. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 The appellant came to Australia on a student visa. He enrolled in courses of study, but did not undertake them. His student visa was cancelled in August 2017. He was taken into immigration detention after a routine traffic stop in September 2018. Some seven weeks after being in detention he made an application for a protection visa. His claim to protection is based upon a concern that there is a serious risk to his life if he was returned to India because he has borrowed money from gangsters in India to meet gambling debts incurred in Australia. 2 The Minister's delegate did not accept the credibility of the appellant's account and refused his application. On review, the Administrative Appeals Tribunal also did not accept the account as credible and affirmed the decision not to grant the appellant a protection visa. The appellant brought an appeal in the Federal Circuit Court where he acted on his own behalf. The grounds in the appeal were not particularised. The appeal was dismissed. The appellant now brings an appeal in this Court. The appeal was commenced on 15 August 2019 and is listed for hearing in Perth on 21 February 2020. 3 On 31 January 2020, the appellant made an application for orders that the proceedings be moved to the Melbourne registry. He had been released from detention on a bridging visa and his cousin is providing him with a place to stay. His cousin has moved to Melbourne and the appellant will be living in Melbourne at the time the appeal is listed for hearing. The appellant says that he wants to be physically present at the hearing and he cannot afford to travel back to Perth from Melbourne. He says that a video conference for the hearing would not be appropriate. 4 The appellant also asks for an adjournment so he can obtain legal advice or for the matter to be referred for pro bono legal assistance. 5 On 28 August 2019, the appellant was informed by the Court that his appeal would be listed for hearing in Perth in the February 2020 sittings of the Full Court. On 16 December 2019, he was told that the appeal had been listed for hearing on 21 February 2020. He has known since August 2019 that written submissions in support of the appeal should be filed at least 10 business days before the hearing. 6 As to the request for a referral for pro bono assistance, a party bringing an application in this Court has no entitlement to a publicly funded lawyer. Rule 4.12 of the Federal Court Rules 2011 (Cth) provides that the Court may refer a party for legal assistance by issuing a referral certificate. Rule 4.13 provides that a party is not entitled to apply to the Court for a referral. However, a party may raise the possibility of a referral and thereby invite the Court to consider the exercise of the discretion under r 4.12: Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440 at [94]. It is a matter for the Court as to whether there is a sufficient basis for it to consider whether to exercise the discretion and, if so, whether it should issue a referral certificate. 7 Rule 4.12 provides a mechanism by which the Court may make a request for pro bono assistance where it forms the view that it would be in the interests of justice for a party to be assisted by a lawyer. It is relevant to consider whether there is an inability to secure legal representation without a certificate and, if so, whether the lack of legal representation 'would leave unaddressed a substantial cause of injustice': Finch v Heat Group Pty Ltd [2014] FCA 236 at [7]. A consideration as to whether to make a referral will usually require the Court to receive evidence of the financial circumstances of the party for whom a referral certificate is being considered: Dauguet v Centrelink [2015] FCA 395 at [171]-[172]. 8 It has been said that the request may be refused where a case is patently hopeless or has no arguable basis: Rivera v Minister for Home Affairs [2008] FCA 1 at [8]. However, often the Court will be required to consider whether to exercise the discretion at a point in the proceedings where there has been no argument as to the merit and it is not appropriate for the Court to form a view as to the merits of the case. This case is an example. I would prefer to say that in considering whether to issue a referral certificate in such instances, the Court considers the nature of the issues raised in the case, the resources available to the party, the nature of the consequences for the party, the ability of the party to be able to participate in the proceedings without legal assistance and any other matters that bear upon forming a view as to whether there is a substantial risk of injustice if the case was to proceed without legal representation, but the party has no real means of obtaining representation. 9 The Court needs to also consider the limited availability of pro bono assistance. Even where a request is made, there may be no lawyer willing and available to act for no fee and the prospect of that occurring is increased with the number of referrals. When considering whether to make pro bono referrals the court is mindful that it is a limited resource that depends for its availability upon the goodwill of the profession. For that reason and in that sense it is to be 'cherished and not abused': ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [29]. This is a further reason why referrals are to be made where the Court is concerned that there is a substantial risk of injustice if a party is not given legal assistance. 10 The nature of the appeal in this case is that it seeks to challenge a decision that rests upon factual findings as to the credibility of the account given by the appellant. The credibility findings by the Tribunal are shortly stated and may be readily examined. This is not a case where the reasoning is dense and covers a lot of different claims and the Court would be assisted by a legal representative who has considered the extent to which there has been engagement with the claims and the factual findings made: cf SZHYH v Minister for Immigration and Border Protection [2018] FCA 687. 11 In the present appeal, the volume of materials is quite confined and in accordance with the orders of the Court, an appeal book has been prepared. It is significant that the appellant has a command of the English language and has been able to appear today and engage with the Court proceedings without difficulty. Having said that, I do not disregard the difficulties for litigants in person in addressing arguments in Court. The possibility of a pro bono referral is raised late in the day and would require the matter to be adjourned if there was a referral. 12 In all the circumstances, I have formed the view that I should not refer the matter for pro bono legal assistance. I note that the possibility of referral is a matter that the Court bears in mind throughout the proceedings and if there is a change in the relevant circumstances, then that is a matter that would be reviewed at that time. 13 Otherwise, the appellant seeks an adjournment so the matter can be moved to Melbourne and he can appear in person. The appeal is not a matter which turns upon any assessment of evidence to be given by the appellant. It turns only upon submissions as to whether there was error by the primary judge in finding that there was no jurisdictional error in the decision of the Tribunal. It is common for this Court to receive submissions by video-link. There is no evident prejudice that would arise from making those arrangements for the hearing in this case. I will give leave to the appellant to appear by video-link from Melbourne. To facilitate that occurring the listing time in Perth will be changed to noon on 21 February 2020, being 3.00 pm in Melbourne. On that basis, the application for an adjournment is refused. The appellant should confirm his email address with my associate immediately after this hearing so that confirmation of the change to time for the hearing of the appeal can be provided in writing. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.