Access to Justice?
13 The plight of the unrepresented is well-recognised. More so is this the case where the applicant before the Court is a person claiming refugee status.
14 Their difficulties are so pronounced that it is regularly called into question whether their claims are being considered and dealt with in accordance with law. There are legitimate concerns as to whether the existing administrative procedures established to assess the factual merits of a claim truly do so in all or many cases. Some reservation is expressed as to whether the true factual merits of a claim may be concealed - albeit (hopefully) on rare occasions - by some administrative decision-makers behind a ritual incantation of adverse conclusions based on credit findings: SZPAB v Minister for Immigration and Citizenship [2011] FCA 1253 at [22] to [27]. Where a true assessment of the merits is shrouded in events that took place long ago and in circumstances of true personal trauma, it may be too easy to unearth factual discrepancies and to then rely upon those discrepancies to justify adverse opinions as to credit. Concern may also be expressed as to whether such persons are receiving at the outset competent advice regarding their prospects of success and competent advice as to the best manner in which their claims should be first presented. Whether the appeals that are ultimately filed and determined in this Court best present the available grounds of review for resolution is open to serious question.
15 The resolution of such difficulties may be complex. But they need to be addressed by the Respondent Minister if any assurance is to be provided that those who ultimately seek access to this Court are truly being given "access to justice".
16 The limited number of Judges of this Court available to resolve what may be expected to be an increasing number of applications in the future is but one of the problems. Although that remains a matter of real concern, the difficulty that presently needs to be addressed is how best to ensure that claimants are properly advised and informed of their prospects of success from the outset. The claims of a person seeking refugee status should ideally be comprehensively formulated at the outset so that the factual merits of that claim may be properly presented and assessed. Thereafter, whatever means of judicial review the legislature considers appropriate to fulfil its responsibilities - including its international obligations - is a matter for the legislature to address.
17 Where the existing administrative and judicial processes, however, have exposed repeated and recurring deficiencies, those deficiencies need to be addressed. The "ostrich is a noble animal …": Gonzalez-Servin v Ford Motor Co 662 F3d 931 (7th cir) at 934 (2011) per Posner J. But an "ostrich-like tactic" of pretending that the existing means of review open to a claimant for refugee status is "access to justice" may well be questioned.
18 The best means of exposing the truly meritorious claimants for refugee status may not be easy; but an attempt needs to be made.
19 The unrepresented, it must be recognised, lie victim to the unscrupulous. More so in the past than at present, it has not been uncommon for the unrepresented refugee applicant to advance before this Court purported Grounds of Appeal which have little - if anything - to do with the facts and circumstances of their particular case: SZOHY v Minister for Immigration and Citizenship [2010] FCA 1267 at [11]. Other cases coming before the Court have repeated - very much verbatim - Grounds of Appeal which have been relied upon in other proceedings: A v Minister for Immigration and Multicultural Affairs [1999] FCA 630 at [11] per Emmett J. On many occasions the Grounds of Appeal in this Court vary significantly from the grounds upon which judicial review was sought before the Federal Magistrates Court: eg, SZGWR v Minister for Immigration and Citizenship [2007] FCA 1306 at [7] per Rares J. On those occasions, difficulties are presented by reason of a blurring of the role of this Court as an appellate Court as opposed to a Court of first instance. Whether deficiencies in the formulation of properly drafted Grounds of Appeal - or Grounds of Appeal bearing little resemblance to the manner in which a case was advanced before a Federal Magistrate - is the product of those in detention "pooling their resources" (cf. Justice R D Nicholson, 'Administrative Issues in Refugee Law' (2001) 28 AIAL Forum 40 at 43) or the product of unscrupulous or incompetent advisors providing false hope to the unwary (SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [13] to [16]), it matters not.
20 All litigation inevitably assumes importance to the litigants - and, more broadly, the general community. But the refusal of a claim for refugee status has the potential to affect a claimant in a more immediate way than other litigation. Some claimants, it has been recognised, are "engaged in an often desperate battle for freedom, if not life itself": Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ.
21 Concern for the unrepresented refugee applicant is nothing new. In Re Refugee Tribunal; Ex Parte HB [2001] HCA 34, 179 ALR 513 at 516, Kirby J thus observed:
[13] The applicant does not have counsel or a solicitor or any other advocate or representative. He has for a long time been detained in immigration detention. He is unable to earn funds to pay for a lawyer of his choice. He does not speak the English language. He claims to be a refugee. In such circumstances it would be an affront to justice for me to sit silent and allow him, unaided, to flounder in the mysteries of our court procedures and substantive law until he had adequately demonstrated an incapacity to present relevant evidence and argument. The judicial power of the Commonwealth does not oblige those who exercise it to engage in a charade of justice. On the other hand, there are limits to what judges can do. I express a sense of disquiet about participating judicially in this Court in such an unequal struggle between an indigent unrepresented litigant, detained in custody, and the government of the Commonwealth, well represented and resourced.
These concerns have also been voiced by other Judges of this court: Brehoi v Minister for Immigration & Multicultural Affairs [2001] FCA 931 at [5] per Beaumont J; Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995 at [6] per Mansfield J. See also: SZOBU v Minister for Immigration and Citizenship [2010] FCA 568 at [33]. Even earlier, in Barzideh v Minister for Immigration and Ethnic Affairs (1997) 72 FCR 337 at 341, Hill J observed that the court is "… constrained by the legislature to sit idly by while injustice is done". The concern has not gone away: SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [16].
22 The plight of the unrepresented is not, of course, a concern confined to those administering the Migration Act 1958 (Cth). It is an issue, for example, which frequently also confronts the Family Court: In Marriage of F [2001] FamCA 348 at [242], 161 FLR 189 at 225 per Nicholson CJ, Coleman and O'Ryan JJ.
23 Whilst it may be that the "frequent consequence" of self-representation is that "... the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy" (Neil v Nott (1994) 121 ALR 148 at 150), it nevertheless remains no part of the task of this Court to draft and then proceed to resolve possible Grounds of Appeal on behalf of an unrepresented appellant. The question of what role is to be undertaken by a Court when confronted with an unrepresented party has not provoked a consistent answer: SZJOG v Minister for Immigration and Citizenship [2010] FCA 244 at [16].
24 The present appeal presents the deficiencies in the existing process of review in stark contrast. It is difficult to know whether a Court is placed in a better position where no Grounds of Appeal have been drafted or where Grounds of Appeal have been drafted, albeit with no reference to the factual or legal issues in need of resolution. Even when the unrepresented appellant appears before this Court with the assistance of an interpreter, the Court invariably receives little assistance from them. More often than not, the unrepresented appellant either asserts or recites the phrase "jurisdictional error" or asserts that the Tribunal was wrong to reject their claims. More often than not, the unrepresented appellant is unable to identify any error - howsoever described - on the part of the Tribunal. The limited role entrusted to this Court by the legislature, it may strongly be suspected, is as foreign a concept to them as the language in which the proceedings are conducted. Even when an unrepresented appellant appears before the Court with the assistance of an interpreter, it may also be strongly suspected that they have no understanding as to what is happening other than that another Court is again looking at their case.
25 Devoid of such understanding, it may well be queried whether - from their perspective - they are being afforded "access to justice". It may also be queried whether some of those who invoke this Court's jurisdiction are in fact seeking "access to justice" - as opposed to further time in which to remain in Australia. Those persons who seek to pursue unmeritorious claims with the sole objective of prolonging their stay in Australia present one set of problems; those persons whose claims may have considerable merit, but are poorly presented and articulated, present another set of problems.
26 Within the constraints in which it functions, the Court should thus be vigilant to ensure that a claim for refugee status has been considered in accordance with law. But the present means of review, it is respectfully considered, place this Court in a difficult position. If "access to justice" is the objective sought to be achieved by the legislature, the ostrich should pull its head out of the sand and look at what is happening around it. If another objective is sought to be achieved, that objective should be identified.