SZVLE v Minister for Immigration and Border Protection

Federal Court of Australia|2017-02-14|Before: Katzmann J

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 41

Counsel for the First, Third and Fourth Applicants: The First Applicant appeared in person and on behalf of the Third and Fourth Applicants

Counsel for the Second Applicant: The Second Applicant did not appear

Solicitor for the First Respondent: Ms C Hillary for DLA Piper Australia

Counsel for the Second Respondent: The Second Respondent filed a submitting notice

Counsel for the Third Respondent: The Third Respondent did not appear

SZVLG BY HIS LITIGATION REPRESENTATIVE SZVLE Third Applicant (and another named in the Schedule)

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

FEDERAL CIRCUIT COURT OF AUSTRALIA Third Respondent

JUDGE: KATZMANN J DATE OF ORDER: 14 FEBRUARY 2017

The application be dismissed.
The first and second applicants pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 The applicants are Sunni Muslims of Lebanese nationality, who hail from the northern part of Lebanon. The first and second applicants are husband and wife, the third and fourth applicants their sons, now aged 7 and 14. On 19 March 2013 they applied for Protection (Class XA) visas. 2 In a short statement annexed to his application, the first applicant (SZVLE) claimed to fear for his life in Lebanon as an active member of a political party known as the Future Movement. He said that he had been persecuted and threatened by "Lebanese Army Intelligence" and three men, whom (in conformity with the court below) I shall call K, M (now said to be deceased) and S (M's brother). Both K and the Lebanese Army Intelligence were said to be supporters of Hezbollah and "the Syrian regime". SZVLE described K as "the man of the Syrian regime" in his village of El Minieh (also known as al-Minieh). He claimed that K had corruptly tried to win a seat in parliament but failed because SZVLE, his family and others stood up to, and refused to be cowed by, him "or the criminals behind him". M and S were said to be supporters of the former Prime Minister, Najib Mikatti, whom SZVLE described as "another representative of Hizbollah, Syria and Iran". M and later S were said to head one of the strongest armed militias in Bab al-Tabbaneh (scil.) (a neighbourhood in the Lebanese city of Tripoli). 3 SZVLE said that he arrived in Australia as a student in 2006, but returned to Lebanon five times to participate in elections. I interpolate that the records show that he first visited Australia in 2004 under a sponsored visitor visa. He claimed that he decided never to return "due to the political instability and the risk it poses to [his] life" and for the lives of his wife and children, too, and the records show that he has not returned to Lebanon since early November 2011 .The applications by his wife and children were made on the basis that they were members of the same family unit. Thus the fate of their applications rested on the outcome of his. 4 The applications were lodged with the Minister's Department on 19 March 2013 and were first considered by a delegate of the Minister. The delegate was not satisfied that Australia owes the applicants protection obligations because he was not satisfied that SZVLE's claims were true. The applicants applied for review of the decision to the Refugee Review Tribunal (the functions of which are now performed by the Administrative Appeals Tribunal), which affirmed the delegate's decision. 5 The Tribunal's decision was published on 14 February 2014. The Tribunal's decision is a "privative clause decision" within the meaning of s 474 of the Migration Act 1958 (Cth). That means, in short, that its decision is final and cannot be challenged except, relevantly, by a writ seeking mandamus or prohibition under s 476(1) of the Act, remedies only available for jurisdictional error: see Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476. But an application for relief under s 476(1) must be made within 35 days of the date of the decision. The applicants did not make an application within that time. Rather, on 5 November 2014, some eight months after the Tribunal's decision, the applicants applied for an order under s 477(2) of the Act to extend the period. The Minister opposed the application. 6 The primary judge accepted the applicants' explanation for the delay and proceeded on the assumption that it was adequate. Nonetheless he dismissed their application on the basis that it failed to reveal any reasonably arguable case of jurisdictional error. 7 There is no right of appeal from a judgment in which an order is made or refused under s 477(2): Migration Act, s 476A(3)(a). Consequently, the applicants filed an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review, seeking an order in the nature of certiorari quashing the judgment and an order in the nature of mandamus requiring their application for an extension of time to be heard and determined again by a differently constituted court. In addition, they sought a declaration that the judgment was affected by jurisdictional error. For the following reasons that application must also be dismissed.

The criteria for the grant of protection visas 8 The Migration Act and Regulations prescribe certain criteria for the grant of visas to enter and remain in Australia. If the Minister is satisfied that an applicant for a valid visa satisfies the relevant criteria, he is obliged to grant it; if not, he is obliged not to: Migration Act, s 65. The principal criteria for the grant of a protection visa appear in s 36 of the Act. At the time of the Tribunal hearing (30 January 2014) s 36 relevantly provided: (2) A criterion for a protection visa is that the applicant for the visa is: (a) non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or (b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa; or (c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who: (i) is mentioned in paragraph (aa); and (ii) holds a protection visa. 9 The reference in para (a) to the Refugees Convention is a reference to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the Refugees Protocol to the Protocol relating to the Status of Refugees done at New York on 31 January 1967: Migration Act, s 5. Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (together "the Convention") to anyone who is a refugee within the meaning of Art 1A(2) of the Convention. That includes anyone who, owing to a well-founded fear of being persecuted for certain specified reasons (such as, relevantly, political opinion and membership of a particular social group), is outside the country of his nationality, and is unable or, owing to that fear, unwilling to avail himself of the protection of that country. Nevertheless, by s 91R(1) of the Act (now s 5J) the application of Art 1A(2) is excluded unless: (a) the reason or reasons are "the essential and significant reason" or reasons for the persecution; (b) the persecution involves "serious harm" (defined in subs 91R(2)) to the person; and (c) the persecution involves "systematic and discriminatory conduct". 10 "Significant harm", for the purposes of para 36(2)(aa), is defined in subs 36(2A) to mean arbitrary deprivation of life, the execution of the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

The Tribunal hearing and decision 11 At the hearing, SZVLE expanded upon his claims. He told the Tribunal, for example, that S was his cousin and that he had threatened to kill him on 30 July 2011, a week before he returned to Australia. He also claimed that Syrian and Hezbollah supporters in al-Minieh, allied to K, had threatened to kill him because of his support for the Future Movement. 12 The Tribunal accepted SZVLE's claim that S was a field commander for a Salafist militia group operating in Bab Tabbaneh against pro-Syrian forces in Jabal Mohsen, and that his brother (M) was shot and killed in Tripoli. The Tribunal also accepted that SZVLE supports and votes for the Future Movement. For the most part, however, the Tribunal found that SZVLE's evidence lacked credibility, that he was not a reliable, credible or truthful witness, and that he had fabricated his claim in order to acquire a protection visa. 13 The primary judge summarised the Tribunal's reasons There was no dispute as to the accuracy of the summary, so it is convenient to reproduce it here: 38. First, the Tribunal did not find credible the applicant's claim that he was approached to join a militia led by his cousin Mr S and was threatened with death for refusing to do so, and left the country. The Tribunal relied on the following matters: a) The Tribunal accepted Mr S is a field commander of a Salafist militia group that operates against pro-Syrian forces, and that his brother was shot and killed in Tripoli. The Tribunal however did not accept Mr S was the applicant's cousin because, although they shared the same family name, that name was common in North Lebanon. Given the other credibility concerns it had about the applicant, the Tribunal concluded the applicant had attempted to establish a familial link when no such link existed. b) The Tribunal did not accept Mr S sought to enlist the applicant and later threatened to kill him and his family when he refused to do so. The Tribunal noted that the applicant did not include his attempted recruitment in his statement, instead, he claimed that Mr S "hated him and his family for failing to support" the Prime Minister. The Tribunal did not accept the applicant's explanation for not including this in his Protection visa application because he "wanted to keep the letter short" and "that he was concerned that the letter could fall into the wrong hands". The Tribunal noted the applicant was unable to explain how the statement could have fallen into the wrong hands. c) The applicant's claim of being approached by Mr S lacked credibility, because the applicant claimed to be a non-observant Muslim, and yet the group he claimed to have been asked by Mr S to join was a radical Salafist militia. d) In his application for a Protection visa, the applicant claimed Mr S hated the applicant and his family because of their political differences. The Tribunal did not accept that Mr S would seek to recruit a secular third cousin whom he hated to revenge the death of his Salafist brother, Mr [M]. 39. Second, while the Tribunal accepted the applicant supports the [Future Movement (FM)] and is an active voter, it did not accept the applicant holds any formal or informal position within the organisation, that he organised rallies for them, handed out leaflets, or attempted to encourage others to vote for the FM, or that he had any political profile. The Tribunal relied on the following matters: a) The Tribunal found the applicant was inconsistent in his explanation of his duties and his level of activities. b) In his Protection visa statement, the applicant claimed he travelled back to Lebanon five times mostly to participate in the elections and sub-elections; yet on three of those occasions there were no parliamentary elections or by-elections, or municipal elections during the periods he was there. c) The applicant gave inconsistent evidence about the role of his father in the FM. Before the Tribunal the applicant claimed his father was not active politically but just voted for the FM. In his Protection visa application, on the other hand, the applicant claimed that he, his father and brothers stood up to and refused to fear a pro-Syrian political figure. The Tribunal considered this involvement would indicate a greater level of activity on the part of the applicant's father than "just that of a voter". d) The applicant claimed the FM candidate Hisham Alameddine received 81,000 votes in the 2009 election though country information indicates he received just over 36,000. The Tribunal considered it was reasonable to assume that a party activist or somebody very interested in politics would know the correct vote if they were confident enough to offer one to the Tribunal. e) The applicant's account of his role in the election was vague. The Tribunal gave no weight to a letter issued by an official of the FM which stated the applicant was an active member of FM because it did not mention any specific tasks the applicant carried out other than that the applicant "participated" in the 2009 parliamentary elections. The Tribunal also gave no weight to a letter the applicant claimed came from a council member of the FM in Australia because it, too, was vague and pointed to no significant role by the applicant. 40. Third, regardless of whether the applicant would be known as a political activist, there was no independent country information that supported the claim that FM supporters were targeted. Given that FM is by far the strongest political grouping in al-Mineh, the Tribunal did not accept that opposition groups with far less political appeal would target FM members. The Tribunal found this conclusion was reinforced by the applicant's returning to al-Mineh for two and half months in 2010 and for over five months in 2011, and that the applicant did not make an application for protection until March 2013. 41. Fourth, the Tribunal did not accept the applicant's claim that the situation "was much worse now". The Tribunal found the applicant was vague as to why that was, other than to say that there was the trial of Rafiq Hariri's killers, there were explosions and looting, and his friends were having their cars smashed, their homes attacked, and their persons assaulted. The Tribunal noted the court hearing to which the applicant referred was being conducted at [T]he Hague, and that the alleged killers were being tried in absentia. The Tribunal also found there was no country information to support these claims. 42. Fifth, the Tribunal did not accept the applicant received threats from the Lebanese Army. The claim was made in his Protection visa application without any explanation of how the Lebanese Army claim applied to the applicant; and, in any event, the applicant did not repeat the claim before the Tribunal. The Tribunal also relied on its finding that the applicant had no profile within the FM. 14 I would add that the Tribunal did not accept that SZVLE had received threats from K either. 15 The Tribunal concluded that the applicants do not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future and that there were no substantial grounds for believing that there is a real risk that they will suffer significant harm. Nor did the Tribunal accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to Lebanon, there is a real risk that SZLVE would suffer significant harm. 16 The primary judge began by setting out the claims for protection as set out in a statement forming part of the protection visa application and additional claims made in the Tribunal hearing. He then analysed the Tribunal's decision. Having done so, he turned to consider the grounds of the application before him and the oral submissions made in support of them. 17 The first ground related to the Tribunal's rejection of SZVLE's claim that S was his cousin. SZVLE criticised the Tribunal's reasons because the "sole basis" for doing so was that it had searched the internet and discovered that there were numerous people with the same surname in Northern Lebanon. He also criticised the Tribunal for not "provid[ing] any clear, indisputable or concrete evidence that [S] is not [his] cousin, to contradict [his] claim that [S] and [he] share the same hometown and that [their] respective grandfathers were first cousins". The primary judge held that this ground raised no arguable case of jurisdictional error because: (a) the Tribunal did not rely only on internet searches but also on "[SZVLE]'s credibility issues identified throughout …"; (b) the Tribunal is not required to accept what an applicant says: NAKD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 321 at [6] (Hill J); and (c) the Tribunal need not have rebutting evidence before it can lawfully hold that an applicant's factual assertion is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105 at [7] (Heerey J). 18 The second ground related to the Tribunal's failure to accept SZVLE's claim that S tried to recruit him to the Salafist militia because he failed to mention it in his visa application. SZVLE alleged that the Tribunal had "no concrete evidence" to refute this claim, that he had told the Tribunal he believed it was necessary to keep the application short, and that he had always intended to raise the matter when he was interviewed by "appropriate officials". The primary judge pointed out that the Tribunal did not accept his explanation and held that it was "beyond argument" that it was open to the Tribunal not to do so, for the reasons it gave. 19 The third ground related to the Tribunal's failure to accept that S had threatened SZVLE without "concrete proof" to support its conclusion. The primary judge held that this did not disclose an arguable case of jurisdictional error either, because it again incorrectly assumed that the Tribunal must have positive evidence for not accepting a claim. His Honour pointed out that the Tribunal gave reasons for not accepting SZVLE's evidence and, once again, considered that it was "beyond argument" that the Tribunal was entitled to do so. 20 The fourth ground concerned the Tribunal's failure to accept that SZVLE would be targeted as a Future Movement activist and that instances of violence and fighting in al-Minieh had increased over the preceding seven years. SZVLE referred to country information which, he contended, verified these claims. The primary judge held that this complaint did not disclose an arguable case of jurisdictional error because it sought to challenge findings that the Tribunal made validly within its jurisdiction, using material that does not appear to have been before the Tribunal. 21 The fifth ground related to the Tribunal's failure to accept that Salafists had expressed violent hatred of the Future Movement and to give any weight to a YouTube video showing Salafists threatening to burn down all Future Movement offices, although, SZVLE asserted, he had mentioned the video during the hearing. The primary judge held that there was no arguable case that the Tribunal failed to accept the claim about the Salafists and therefore there could be no arguable case of jurisdictional error. The primary judge found that the Tribunal had referred to the video without making a finding "one way or another" as to whether Salafists had expressed violent hatred towards the Future Movement. His Honour noted, however, that the Tribunal considered that SZVLE's claim that S hated him and his family because S's militia failed to force him to support Mikatti was inconsistent with the claim that he made before the Tribunal. 22 The oral submissions SZVLE made were that: (a) the Tribunal incorrectly said that his uncle, rather than his cousin, threatened him; (b) S was related to him and that the Tribunal could have looked into his history; (c) although he was not a member of the Future Movement, he was an activist; (d) in answering the Tribunal's question about the number of votes Hisham Alameddine received, he had mistakenly believed the interpreter was asking him about the 2005, rather than the 2009, election; (e) the Tribunal did not accept the letter issued by an official of the Future Movement (that stated that he was an active member of the Movement) or the letter issued by the council member in Australia; (f) the Tribunal said that he and his family would be safe if they moved to Beirut; and (g) he and his family would face danger if they returned to Lebanon. 23 The primary judge held that none of these matters raised an arguable case of jurisdictional error.

Section 39B 24 Section 39B of the Judiciary Act relevantly provides that: (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: … (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia. … (Emphasis added.) 25 The jurisdiction conferred by s 39B(1) is the same jurisdiction conferred on the High Court by s 75(v) of the Constitution where the writs of mandamus and prohibition are only available for jurisdictional error and "certiorari can only be ancillary to relief under s 75(v) for jurisdictional error": Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [70]. 26 Circumstances in which an inferior court will fall into jurisdictional error were set out in Craig v South Australia (1995) 184 CLR 163 at 177, although it is not possible to define "the metes and bounds" of jurisdictional error: Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 at [71]. It is clear, however, that not all errors of law are jurisdictional. In Craig the Court observed: An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. 27 In contrast, however, to the position of administrative tribunals lacking authority to determine questions of law, an inferior court determining a question within jurisdiction will not ordinarily commit jurisdictional error if it makes a mistake in the identification of the issues, fails to take into account matters which, as a matter of law, it was bound to take into account, or relies on a matter upon which it was not entitled to rely: Craig at 179-180.

The s 39B application 28 The application was supported by an affidavit sworn by the SZVLE on 24 October 2016. In four paragraphs he set out the basis of the application. He stated (without alteration): 7. There is no proper consideration of the relevant law in His Honour decision and the Court has thereby fallen into jurisdictional error. 8. I personally represented myself and my family as I was unable to have any legal practitioner to represent us. 9. Since my family was not represented by a legal practitioner to represent our case for the hearing at the Federal Circuit Court the Judge at the FCCA should have adjourned for me to have a legal representatives. 10. Had an adjournment been granted I would seek proper advice the way in which I should be having the carriage of my matter. 29 It follows that there are two issues: whether the primary judge failed to properly consider the relevant law and whether he erred by failing to adjourn the hearing to enable the applicants to obtain legal representation. 30 The applicants did not file written submissions. SZVLE appeared at the hearing in person and made oral submissions which paid scant regard to the issues.

Did the primary judge "properly consider" the relevant law? 31 The first proposition - that the primary judge did not properly consider the relevant law - is baseless. SZVLE did not identify the law he had in mind. Indeed, in oral argument he confessed to being "oblivious to the Australian law". His submissions were directed to the merits of the Tribunal's decision. He maintained that he was an active member of the Future Movement, had been threatened by S, and feared for the safety of his family. He claimed that he had told the primary judge that he could provide proof that the Future Movement paid for his ticket to travel to Lebanon in 2009. He submitted that in a humanitarian case the Court should look at the person's present situation. 32 None of these submissions was to the point. Neither this Court nor the Federal Circuit Court has the power to review the Tribunal's findings of fact, let alone to substitute its decision on the facts for that of the Tribunal. As Brennan J explained in Attorney-General v Quin (1990) 170 CLR 1 at 35-36: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. 33 As for the complaint SZVLE made in his affidavit, the primary judge's reasons indicate that he considered the relevant law and there is nothing to suggest that his Honour's decision was affected by jurisdictional error. 34 As the primary judge pointed out, the Court's power to order an extension of time under s 477(2) is dependent on two conditions: the making of an application in writing specifying why the applicant considers it is in the interests of the administration of justice to make the order, and the Court's satisfaction that that is so. His Honour referred at length to some of the authorities in this Court concerning the way the power is to be exercised. In particular, he noted that in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [47]-[48] Foster J had referred to some of the factors that "might ordinarily be taken into account in considering the interests of the administration of justice in this context": whether there has been a reasonable and adequate explanation for the delay, whether there is any prejudice to the Minister; and whether the substantive case for judicial review is sufficiently arguable to justify the extension. He also noted that these factors were not exhaustive. The primary judge also acknowledged that in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] Mortimer J had said that on such an application it is inappropriate to embark on anything more than "a reasonably impressionistic" examination of the grounds of the substantive application, and that in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [102] Wigney J had observed that the issues arising on the extension application must be dealt with "clearly and discretely" from the issues arising on the substantive application. 35 The primary judge took it that the Court was laying down rules in these cases: a rule that the extension application must be heard and determined before the Court hears and considers the merits of the application for final relief and a rule that the Court may only decide whether the grounds for final relief are reasonably arguable. He also considered that these "rules" were called into question by Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22. In both respects I respectfully disagree with his Honour, though nothing turns on the matter in this case because his Honour dealt with the adjournment application according to law. 36 Wei concerned an application for an extension of time to apply for constitutional writs under s 486A of the Migration Act (the terms of which are relevantly indistinguishable from s 477). All three members of the bench determined the merits of the substantive application, unanimously concluding that the Migration Review Tribunal had fallen into jurisdictional error, before considering whether to grant the extension. 37 I do not believe that Wei calls into question the authority of the statements made in this Court to which the primary judge referred. The High Court was not laying down a rule to be applied to all cases where an extension of time is sought. The application for an extension of time and the substantive application were heard together and there was full argument on the merits of the substantive application. Furthermore, Wigney J observed in SZTES at [102] that: [W]hen the merits of the substantive application are fully argued, it will ordinarily be quite artificial to import into the consideration of the extension application an assessment of the likelihood of success of the application. Where the only issue on the extension application is the merits of the substantive application, and where the merits are fully argued, the better course in all but clearly hopeless cases would be to extend time and deal with the merits on a final basis. That will avoid the unfortunate perception that might otherwise arise to the effect that the extension application was refused so as to deny the applicant appeal rights in relation to the substantive application. In MZABP at [66], Mortimer J agreed with Wigney J. While both judges proceeded on the basis that the Court would first determine the application for an extension of time, there is no hard and fast rule. Where an interlocutory application is listed to be heard at the same time as the application for substantive relief and a court invites full argument on the merits, it is not uncommon for the court to determine the application for substantive relief first. If the application for an extension of time is listed for hearing with the substantive application, the court may decide in its discretion to deal with the interlocutory application first and then go on to determine the application for substantive relief or vice versa, provided that in doing so the court affords procedural fairness to the applicant.

Did the primary judge err in failing to adjourn the hearing to enable the applicants' to obtain legal representation? 38 The second proposition - that the primary judge erred in failing to adjourn the hearing to enable the applicants to obtain legal representation - is also without merit. 39 While the primary judge certainly had the power to adjourn the hearing in the exercise of his discretion, having regard to what was said in Craig, it is doubtful whether a failure by an inferior court to accede to an application for an adjournment could ever amount to a jurisdictional error. In this case, however, there can be no doubt. Here, there is no evidence to indicate that the applicants asked for an adjournment. Indeed, SZVLE accepted that he had not applied for an adjournment. The primary judge could scarcely have erred in failing to exercise his discretion in the applicants' favour when he was never asked to do so. 40 Further, there is no statutory right to legal representation. Nor is there any absolute right to legal representation at common law: Dietrich v R (1992) 177 CLR 292; New South Wales v Canellis (1994) 181 CLR 309 at 328; Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282 at [93] (Ipp JA, Spigelman CJ and Handley JA agreeing). In civil proceedings procedural fairness does not require that a party be provided with legal representation, no matter how serious the consequences of the proceedings might be: see, for example, Canellis at 330-331 (an inquiry into a conviction under s 475 of the Crimes Act 1900 (NSW)); Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 (a deportation case); Rivera v United States of America [2004] FCAFC 154 at [26]-[28] (an extradition case); Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] (Perram J) (an application for judicial review of a decision of the Migration Review Tribunal); Foster v Australian Competition and Consumer Commission [2012] FCA 953 (Perram J) (a consumer protection case in which civil penalties were sought), SZQUH v Minister for Immigration and Citizenship [2012] FCA 1265 at [44] (Katzmann J) (an application for judicial review of a decision of the Refugee Review Tribunal).

Conclusion 41 Neither of the applicants' complaints is made out. It follows that the application must be dismissed. In these circumstances, the first and second applicants should pay the Minister's costs. There will be orders accordingly. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

SCHEDULE OF PARTIES NSD 1861 of 2016 Applicants Fourth Applicant: SZVLH BY HIS LITIGATION REPRESENTATIVE SZVLE

Migration Act 1958(Cth)ss 5, 36, 65, 474, 476A(3)(a), 477(2)

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