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[2006] FMCA 45
defendant. The Minister's application for summary dismissal was dismissed. The applicant was granted leave to file and serve an amended application with complete particulars by 28 February 2006. The matter...
A Lebanese citizen who arrived in Australia in 1996 had his application for a protection visa refused in 1997, and the Refugee Review Tribunal affirmed this decision in July 1998. He did not challenge this in court until August 2005, more than seven years later, shortly after being placed in immigration detention. The Minister asked the Court to dismiss the case immediately, arguing it was an abuse of process because of the long delay and that the applicant only brought the case to delay his removal from Australia. The Court refused to dismiss the case immediately. It held that because the applicant was representing himself, did not speak English well, and had raised questions about whether a migration agent had properly handled his case earlier, he should be given the chance to prepare his evidence and arguments properly before the Court decided whether the delay was acceptable. The Court also allowed a volunteer helper (a 'McKenzie friend') to assist the applicant.
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The applicant appeared in person with the aid of an interpreter and a "McKenzie's friend".
2 cited instruments linked from this judgment.
(1)
The application of the Minister for Immigration & Multicultural & Indigenous Affairs filed as an Amended Response on 23 November 2005 is dismissed.
(2)
The applicant has leave to file and serve an amended application giving complete particulars of each ground of review relied upon by
28 February 2006.
(3)
The applicant must file and serve any additional affidavits by
28 February 2006.
(4) The respondent must file and serve any additional affidavits by
(5) Set the matter down for final hearing on 4 April 2006 at 10.15 a.m. in Court 6C, Level 6, John Maddison Tower, Level 6, 88 Goulburn Street, Sydney.
(6)
The applicant must file and serve in the Registry a short written outline of submissions and list of authorities fourteen (14) days before the hearing.
(7) The first respondent must file and serve a short written outline of submissions and list of authorities seven (7) days before the hearing.
(8) Any party who intends at the hearing to take the Court to a case or legislation (other than a CLR or FCR or the current Migration legislation) shall provide the Court with a copy of the page or pages intended to be read. The extract should include the headnote or title page of the case, book or legislation, and shall be passed up during argument if requested by the Court.
(9)
All documents required to be filed must be filed at the Registry, Level 16, Law Courts Building, Queens Square. PROVIDED that any document which is filed within seven (7) days of the hearing or other listing shall ALSO be provided by email address or facsimile number obtained from the Associate.
(10)
Costs are reserved.
By an Amended Response filed in Court on 23 November 2005, the respondents seek orders that the applicant's application filed in the Federal Magistrates Court of Australia on 19 August 2005 be dismissed pursuant to the jurisdiction conferred by s.14 and/or s.15 of the Federal Magistrates Court Act 1999 (Cth) in the following form:
1. An order that the application is incompetent on the basis that the Court has no jurisdiction to try the application for review pursuant to section 477(1A) of the Migration Act 1958.
2. In the alternative, even if the Court considers that the decision of the Refugee Review Tribunal is infected by a jurisdictional error (which is not conceded), the Court should refuse to grant the relief sought on discretionary grounds due to the unexplained delay by the applicant in bringing this proceeding.
3. The proceeding be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules on the basis that the proceeding is an abuse of process.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 19 August 2005 for a review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 20 July 1998, affirming the decision of the delegate of the respondent ("the delegate") made on 28 June 1997 to refuse to grant the applicant a protection (866) visa. The applicant seeks relief in the form of constitutional writ against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) ("the Act") and has been given the pseudonym "SZGZT".
For the purpose of this application, the respondents tendered and applied for the affidavits of Benjamin Alexander Cramer, Solicitor, sworn on 23 November 2005 ("the affidavit of Mr Cramer (No. 1) and 14 December 2005 ("the affidavit of Mr Cramer (No. 2)) to be admitted into evidence.
The applicant, who claims to be a citizen of Lebanon, arrived in Australia on 5 June 1996. On 20 March 1997 he lodged an application for a protection (866) visa with the Department of Immigration & Multicultural Affairs ("the Department") under the Act (Court Book pp.2-27) ("CB"). On 28 June 1997 the delegate refused to grant a protection visa (CB pp.34-43) and on 29 July 1997 the applicant applied to the Tribunal for a review of the delegate's decision (CB pp.44-47).
Mr Cramer, Solicitor appearing for the respondents, prepared a convenient chronology in this matter which I adopt and reproduce as follows:
Applicant arrives in Australia on 5 June 1996.
Applicant lodges application for protection visa on 17 March 1997.
Delegate refuses to grant protection visa on 28 June 1997.
Applicant applies for review with the Refugee Review Tribunal on 28 July 1997.
Refugee Review Tribunal affirms delegate's decision to refuse to grant protection visa on 20 July 1998.
Applicant applies to the Minister to exercise discretion under s417 of the Migration Act 1958 on 18 August 1998.
Minister decides not to consider exercise of discretion under s417 of the Migration Act 1958 on 26 March 1999.
Applicant placed in immigration detention on 11 August 2005.
Applicant files present application in the Court on 19 August 2005.
Applicant released from immigration detention on 23 August 2005.
Mr Toufic Laba-Sarkis sought leave of the Court to act as a "McKenzie friend" for the applicant. Mr Laba-Sarkis has previously informed the Court that he migrated from Lebanon and is now an Australia citizen. He is the Managing Director of a salvage timber and recycling value added business. Mr Laba-Sarkis stated that he is an NAATI accredited interpreter in the Arabic-English medium and that he had previously practised as a migration agent until 1996. Since 2004 Mr Laba-Sarkis has assisted people on a voluntary basis through the various community organisations of which he is a member. He has made representations to the Minister and attended Courts and Tribunals in respect of migration issues. He is a member of the Ethnic Community Council, Maronite Christian Society, Secretary of the General Council of Community of Hasroun (Charitable Association) and other committees. Mr Laba-Sarkis stated he completed academic studies in theology, philosophy and migrant education.
In McKenzie v McKenzie and R v Leicester City Justices; Ex parte Barrow & Anor the concept of "McKenzie friend" envisages permitting a lay person to attend a trial and take notes, quietly make suggestions to the litigant in person and give advice to the litigant. It is a matter of discretion of the Court as to whether it is appropriate for a "McKenzie friend" to be involved at all: Smith v R.
I appreciate the practical difficulties in which a person in the position of the applicant is confronted because he is in a strange country whose language is not familiar and whose legal system he does not understand. Nor is the applicant likely to be in a financial position to enable him to obtain legal representation or retain Counsel.
This is an application by the Minister filed on 23 November 2005 seeking summarily dismissal of the applicant's application. In a letter addressed to the applicant dated 8 December 2005, the respondents' solicitors advised the applicant of the bases of their application to be made at this hearing. This letter is in evidence and attached to the affidavit of Mr Cramer (No. 2). The relevant section of that letter states:
"We put you on notice that on 14 December 2005 we will ask the Court to dismiss your application on the basis that it is an abuse of process because:
(a) Your application for judicial review was filed more than
7 years after the Tribunal's decision. Given your delay in seeking review of the Tribunal's decision, the Court ought to refuse to exercise its discretion to grant the relief you seek;
(b) In August 1998, shortly after the Tribunal's decision, you sought Ministerial intervention under s417 of the Migration Act 1958 with the assistance of a migration agent. We are instructed that your request was refused in June 1999. By seeking s417 intervention you have acquiesced in the alleged invalidity of the Tribunal's decision; and
(c) We are instructed that you were detained on 11 August 2005. Shortly thereafter, on 19 August 2005, you filed the present application in the Court. In light of the delay referred to above, the Court ought to infer that your detention was instrumental in your decision to commence these proceedings and that they have been brought for the purpose of delaying your removal from Australia."
The applicant, with the assistance of Mr Laba-Sarkis, prepared a typed document which he intended to read to the Court and which raised a number of issues relating to the involvement of a migration agent acting for the applicant and lodging a s.417 Notice with the Minister on the applicant's behalf. That agent, Mr Michael La Kiss, attended the Tribunal hearing and that is recorded in the Tribunal's decision (CB p.52). The involvement of Mr La Kiss is not clear and the correspondence contained in the Court Book does not clarify this issue.
The applicant has also filed an amended application on 11 November 2005 which he claims was prepared with the assistance of a solicitor he had retained but who has subsequently withdrawn. This document also makes reference to the issue in respect of notification of the applicant as to the status of his review process and the application to the Minister. I believe that these issues need to be the subject of submissions to the Court together with any supporting evidence to enable a satisfactory review process.
I have been requested to exercise my discretion and dismiss this matter on a summary basis. I note that that discretion must be exercised with great care. In the circumstances, I do not think it is appropriate for me to dismiss this matter without providing the applicant with the opportunity to prepare his evidence and arguments in support of the contentions that he has relayed to the Court. I should add, however, that at this stage, I make no comment on the possible success or otherwise of the applicant's arguments. I consider that the applicant is entitled to have the matter considered in accordance with the law because he has not previously had the opportunity to participate in this process and the reasons for the failure to do so are pivotal to that consideration.
I set the matter down for final hearing on 4 April 2006 at 10.15 a.m. in Court 6C, Level 6 of the John Maddison Tower, 88 Goulburn Street, Sydney.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
SZGZT
Minister for Immigration & Anor [2006] FMCA 45
Smith v R [1985] HCA 62; (1987) 71 ALR 631
(1987) 71 ALR 631
The Minister's application for summary dismissal was dismissed. The applicant was granted leave to file and serve an amended application with complete particulars by 28 February 2006. The matter was set down for final hearing on 4 April 2006. Costs were reserved.