SZRIF v Minister for Immigration and Border Protection

These proceedings 23 This morning, the first applicant sought to argue that the applicants should have been provided with a lawyer to act for them, first, in the Tribunal, secondly, before her Honour and, thirdly, before me. In particular, they relied on the fact that the couple's son was a minor and asserted that he should be protected by the provision of a lawyer. 24 I reject that argument. First, the applicants appear to have had access to a migration agent who was also a lawyer for the purposes of the conduct of the review of proceedings in the Tribunal. Whether or not the applicants availed themselves of the opportunity to have that person represent them at the hearing before the Tribunal or, indeed, in the Court below or this Court, was a matter for the applicants. They had the resources, apparently, to engage someone to act for them initially and there is no reason why anything that was sought to be raised by them before her Honour or me would have required either Court to refer them for legal assistance under r 4.12 of Federal Court Rules 2011 (Cth) or its analogue in the Federal Circuit Court. 25 The simple fact is that the Tribunal had made findings that the first applicant was not telling it the truth about his circumstances when he gave evidence to it. That is why his claim failed before the Tribunal. There is nothing from my reading of the Tribunal's decision or the reasons given by her Honour for dismissing the application for constitutional writ relief which suggests to me that there is any basis on which an appeal might be brought, even on the sole ground of appeal that was open in this case, namely that the applicants were denied natural justice because they had no legal advice or representation. 26 The Tribunal must deal with a vast number of persons of all different nationalities, ages, personalities, languages, and circumstances making claims before it for protection visas under s 36(2). There is no requirement in the law that those persons be provided with legal representation in the Tribunal at the expense of the Commonwealth. Nor is that the position in relation to litigation in the Courts. The Courts recognise that, among other things, they are assisted by trained lawyers appearing before them to present evidence and put arguments. Nonetheless, ordinarily, it is a fundamental right of every individual to appear in person before a court to represent himself or herself, or, if the person wishes or can afford to do so, he or she may be represented by a lawyer. There is no common law right for persons to have a lawyer to represent them in court proceedings at public expense: Dietrich v The Queen (1992) 177 CLR 292. However, as the High Court held in Dietrich 177 CLR 292, the Courts have powers to stay criminal proceedings where an accused is unrepresented if that lack of representation will result in an unfair trial. 27 Similarly, there is no common law right for persons to have a lawyer represent them at public expense in administrative proceedings, such as those before the Tribunal, or in claims for judicial review arising from administrative decisions. Often a court will be assisted by the provision of an argument and evidence presented by a lawyer on behalf of a party. But, everyone has the personal right to come before a court to present his or her own case and argument. 28 There is nothing in this case that called for the provision to the applicants of a lawyer if they did not choose to engage one, or to find one who was prepared to appear for them. Having regard to the Tribunal's findings of fact, there is no reasonable basis on which it could be said that the failure to have a lawyer would have made any difference to the outcome. That is because the Tribunal just did not believe the account given by the first applicant on which the claim for complementary protection was solely based. 29 Moreover, although the migration agent/lawyer who represented the applicants in the Tribunal would have been aware of the circumstance of the data breach revealed in the letter of 12 March 2014, that person raised nothing to do with that subject in the course of the review in the Tribunal. Nor was there any obligation on the part of the Tribunal to raise that issue. Its process is inquisitorial. The Tribunal's function was to assess the applicants' claims. The applicants were aware of the data breach from their receipt of the 12 March 2014 letter, and said nothing about it to either the Tribunal or even to her Honour, despite having received the subsequent letter of 20 January 2015, over a month before the hearing before the trial judge. 30 In all of the circumstances, I see no basis upon which leave to appeal could be granted. A party seeking an extension of time in which to file a notice of appeal ordinarily must show the court that there is some merit in the argument that he or she wishes to advance. Flimsy cases that are weak on the merits ordinarily will not obtain the grant of an extension of time: Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J, 540 [66(4)] per Kirby J. 31 An application for leave to appeal requires that the party seeking leave demonstrates that, first, the decision in question is attended with sufficient doubt to warrant the grant of leave and, secondly, that substantial injustice will result if leave to appeal is refused: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.