SZUTY v Minister for Immigration and Border Protection

1. The applicant's interlocutory application heard today be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Revised from transcript) 1 The applicant is a detainee at the Villawood Detention Centre. On 26 May 2015 the Federal Circuit Court made orders dismissing his application for judicial review of a decision of the Refugee Review Tribunal (whose functions have been transferred to the Administrative Appeals Tribunal). The applicant wishes to appeal from those orders but he did not file a notice of appeal within the 21 days prescribed by the Federal Court Rules 2011 (Cth). Indeed, he did nothing to indicate that he had any intention to appeal until 8 December last year when he filed an application for an extension of time to appeal. That application is listed for hearing before me in two days' time. At the applicant's request it was listed for directions today. 2 The applicant seeks three orders: (1) that he be provided, without charge, with the transcript of the hearing in the Federal Circuit Court; (2) that the hearing on 3 March 2016 be vacated and that it be relisted after the applicant has had sufficient time to study the transcript and to file any amended application and submissions; and (3) that the Minister be directed to facilitate the attendance of a fellow detainee, SZSSJ, as the applicant's McKenzie friend at future hearings. 3 The Minister opposes the making of all these orders. 4 The Court has no power to make the first order. There is no transcript on the Federal Circuit Court file and it would appear that none has been taken out. If the applicant required a transcript he needed to apply to Auscript. There is no evidence that he made any such application although he told the Court that he had. Nor is there any evidence to indicate that the applicant is without the means to pay any fee Auscript may charge or that Auscript would be unwilling to waive its ordinary fee. In any event, Auscript is not a party to the proceeding and there is no ostensible basis upon which it could be joined. 5 The reason the applicant gave for the second proposed order is, as I understood it, that the primary judge claimed that many of the arguments propounded by his counsel in the court below were misconceived and that his Honour misunderstood what was put to him. In written submissions forwarded to the Court this morning, the applicant contended that "[w]e can not possibly stablish (sic) or deny that as a fact without seeing the actual transcript of that argument". He added: "we will never be certain, for the purpose of justice, how many and how significant judicial errors would we have discovered if we had the complete picture of the case". 6 In substance, then, and although he denied it, the applicant seeks an adjournment so that he can examine the transcript with a view to seeing whether there would be any merit in an appeal. As Ms Rayment, who appeared for the Minister, put it, that is a fishing expedition. It is not a proper basis upon which to adjourn the hearing. Such an investigation should have been undertaken before the application for an extension of time was filed or, at all events, well before the hearing. The Court file shows that the applicant was first informed of the hearing date by email on 14 January 2016. Yet he first foreshadowed the application for these directions on 24 February 2016. He offered no explanation for the lateness of the application. Like all the Court's powers, the power to adjourn a hearing must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and the Rules: FCA Act, s 37M(3). That purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, taking into account, amongst other relevant matters, the following objectives (set out in s 37M(2)): (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. 7 Having regard to all those objectives, and in the light of the applicant's unexplained inaction, I am not satisfied that vacating Thursday's hearing would be the best way to promote the overarching purpose. 8 The applicant's final request is that the Minister be directed to facilitate the attendance at future hearings of another detainee so that he may act as the applicant's "McKenzie friend". 9 When I asked the applicant to explain the role he wished SZSSJ to perform, he indicated that it was to provide moral support. He said that SZSSJ was not a lawyer and had no particular expertise, but he had appeared in court more times than the applicant. It is not entirely clear to me that a McKenzie friend, so called, is a person who merely provides moral support. 10 As Edelman J explained in Nepal v Minister for Immigration and Border Protection [2015] FCA 366 at [14]: The label "McKenzie friend" comes from the decision of the Court of Appeal in England in McKenzie v McKenzie [1970] 3 WLR 472, although the principle is much older. At first instance, in McKenzie v McKenzie, Lloyd-Jones J had refused to allow an Australian barrister to assist a party in family law proceedings by sitting at the bar table and prompting the party. The Court of Appeal quoted from Lord Tenterden CJ in Collier v Hicks (1831) 2 B & Ad 663, 669; 109 ER 1290, 1292 that "[a]ny person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice." Sachs LJ explained that litigants "should be seen to have all available aid on conducting cases in court surroundings, which must of their nature to them seem both difficult and strange": McKenzie v McKenzie [1970] 3 WLR 472, 479. 11 In Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145, Perry J observed that "the McKenzie's friend has not, as I understand it, a right of audience, but only a right to advise and assist". 12 I accept, for the purposes of this application, that "any person may attend [a hearing] as a friend of a party to take notes, make suggestions, and give advice": Cristovao v Registrar Caporale [2012] FCA 1329 at [28] (Murphy J). That said, however, there are at least two impediments to making the proposed order or direction. The first concerns the question of the Court's power, the second the proper exercise of the Court's discretion, should there be such a power. 13 It is common ground that the applicant was taken into detention on 9 November 2015, presumably because by then (he not having filed a notice of appeal) it was clear that he was no longer complaining about the Minister's decision to refuse to grant him a protection visa and he had no other visa. I was informed that the applicant was detained under s 189 of the Act. Section 189(1) of the Migration Act 1958 (Cth) provides that if an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain a person. Section 256 of the Migration Act relevantly provides that where a person is in immigration detention under the Migration Act, the person responsible for his detention shall, at the request of the person in immigration detention, afford to him all reasonable facilities for obtaining legal advice or taking legal proceedings in relation to his immigration detention. But s 256 is inapplicable in the present case because SZSSJ is not an Australian lawyer or, indeed, a lawyer at all and I am not satisfied that bringing a fellow detainee to court to provide moral support for an application for extension of time to appeal is a reasonable facility for taking legal proceedings in relation to immigration detention. 14 In the limited time available to me, I have found no other power in the Act that would enable the Court to direct the Minister to bring someone from immigration detention to act in the role that the applicant desires SZSSJ to perform. 15 I was told, nonetheless, that SZSSJ has attended court on three occasions as a McKenzie friend to other applicants. Neither the applicant nor Ms Rayment on behalf of the Minister was able to direct me to any provision of any Act or subordinate legislation which gives the Court the power to make an order requiring the Minister to bring to court a fellow detainee to act as a McKenzie friend. From what I was told, on the occasions when SZSSJ has attended, he did so with the consent of the Minister, in circumstances, at least in two of those cases, where the applicant was illiterate or barely literate. Leave was granted on all three occasions, as I understand it, for him to provide assistance to the Court and not merely moral support to the applicant. In this case, however, the Minister did not consent. 16 Even if I had the power, I would not exercise it in the circumstances of the present case because I am not satisfied that SZSSJ could provide any useful assistance either to the applicant or to the Court if the Minister were to bring him in person. The applicant is not illiterate. He has no communication difficulties or any disability that might warrant the presence of another to take notes, for example. He is obviously intelligent. He came to Australia in 2011 on a student visa to complete a masters degree in business administration and his interactions with the Court during the hearing of the present application disclose that he has no problems articulating his arguments. Whilst he claimed that SZSSJ knew the details of his case, it is axiomatic that he knows more about his case than SZSSJ. 17 Of course, there is no impediment to SZSSJ providing whatever assistance he is able to give to the applicant in preparing for the hearing, but having regard to all the matters that I have canvassed in these reasons, I am not persuaded that I can or should make any of the orders the applicant seeks. The application for those orders should be dismissed. 18 Accordingly, the application for an extension of time to appeal will proceed to hearing on Thursday. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.