WZAOA v Minister for Immigration & Anor [2010] FMCA 619 (18 August 2010)

Last Updated: 19 August 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOA v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 619

PRACTICE AND PROCEDURE – Migration – protection visa application – application for pro bono assistance – criteria for consideration of application for pro bono assistance.

Migration Act 1958 (Cth), s.476 Federal Court Rules (Cth), O.80, r.4 Federal Magistrates Act 1999 (Cth), ss.3, 13(3)(a), 42 Federal Magistrates Court Rules 2001 (Cth), rr.12.01, 12.02, 12.03, 12.04

Bartucciotto v Western Health Care & Ors (2007) 94 ALD 387; [2007] FMCA 26 Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 Rivera v Minister for Home Affairs [2008] FCA 1 SZGSI v Minister for Immigration (2009) 107 ALD 414; [2009] FCA 200 Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319

Applicant:

WZAOA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 100 of 2010

Judgment of:

Lucev FM

Hearing date:

16 July 2010

Date of Last Submission:

19 July 2010

Delivered at:

Perth

Delivered on:

18 August 2010

REPRESENTATION (issue decided on the papers)

The Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The applicant be referred to a Registrar of this Court pursuant to rule 12.03(1) of the Federal Magistrates Court Rules 2001 (Cth) for referral to a lawyer on the pro bono panel for legal assistance, that assistance pursuant to rule 12.04 of the Federal Magistrates Court Rules 2001 (Cth) to include:

• (a) advice in relation to the proceedings;
• (b) the drafting or settling of documents to be filed or used in the proceedings; and
• (c) representation generally in the conduct of further proceedings before this Court.

(2) Costs reserved.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

PEG 100 of 2010

WZAOA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered in Chambers under s.13(3)(a) of the Federal Magistrates Act 1999 (Cth))

Pro bono application

1. The applicant has filed an application pursuant to s.476[1] of the Migration Act 1958 (Cth)[2] seeking judicial review of a Refugee Review Tribunal[3] decision[4] to deny her a protection visa. These Reasons for Judgment, however, concern an informal application the applicant has made for pro bono legal assistance, which is set out in written correspondence to the Court.[5]
2. On 6 July 2010 the applicant’s migration agent wrote to the Court[6] on behalf of the applicant. The following information was included in the 6 July 2010 Letter in support of the Pro Bono Application:
   1. the applicant had instructed a lawyer, Mr Henry Christie, who prepared the papers filed in this Court on 25 June 2010;
   2. Mr Christie retired from his practice as a barrister and solicitor on 30 June 2010 so is unable to appear for the applicant;
   100. the applicant approached another lawyer who practises migration law, who advised that it would cost an estimated $10,000 to take the appeal, which the applicant cannot afford;
   4. the applicant works four hours a day cleaning and has to support her husband and nine year old daughter;
   5. the applicant’s husband does not have a job; and
   6. the applicant and her husband are not on substantive visas and hence have no entitlement to Centrelink benefits.
3. On 9 July 2010, the Court wrote to the applicant’s migration agent advising that:
   1. the applicant would need to satisfy the Court that it is in the interests of the administration of justice that a referral to the pro bono panel for legal assistance be made;
   2. in determining whether it is in the interests of the administration of justice to make a referral, the Court may take into account the following matters, pursuant to r.12.03 of the Federal Magistrates Court Rules 2001 (Cth):[7]
      1. the means of the party;
      2. the capacity of the party to obtain legal assistance outside the pro bono panel scheme established under rr.12.01 and 12.02 of the FMC Rules;[8]
      3. the nature and complexity of the proceeding; and
      4. any other matter the Court considers appropriate; and
   100. there was insufficient information before the Court to make a referral to the Pro Bono Panel Scheme at that stage.
4. The Pro Bono Application was not raised in the hearing on the First Court Date on 16 July 2010, however, immediately upon conclusion of that hearing, the applicant handed two letters to the Deputy Associate in further support of the Pro Bono Application.
5. The first letter was dated 23 June 2010 and addressed to the applicant’s husband from Mr Henry Christie, the contents of which included the following:
   • I confirm that I cannot act for you or your wife ... as I intend to retire from my practice as a barrister and solicitor on 30 June 2010.
   • Nevertheless and as requested, I have drafted the necessary application to the Court and the Affidavit in support, which your wife may use if she intends to proceed without a lawyer. I have also given you the name of the only lawyer in Perth, who so far as I know handles these types of matters. If he is unwilling to act for you, or his fees are beyond your means, your wife can request the court to assist her in finding a suitable lawyer. You may also enquire at the Law Society if there are other lawyers in this field.
   • If what you and your wife have told me is correct, namely that your wife’s claims to be a refugee arise out of her witnessing an abduction (and later murder) and that the killer is aware of your wife is [sic] a witness and would link her with you to the opposition party and that he would perceive your wife as a potential threat to him in that he would fear that she may pursue the allegations against him for political reasons and that your wife should therefore be eliminated, then I consider that these claims should have been considered by the Tribunal, unless an unconditional concession was made that the claims were not being pursued. I understand from you that no such concession was made. I also note that the Tribunal refers to a motor vehicle accident, not to an abduction and murder.
   • Accordingly on [what] you have told me, there may well be a good claim for review by the Court which should be pursued.
   • ...
6. The second letter was dated 14 July 2010 and addressed to the Court from Mr Thomas, the contents of which included the following:
   • The applicant ... will need access to the Federal Magistrates Court legal assistance scheme to be represented.
   • Means
   • The applicant’s household comprises the applicant, her husband and nine year old daughter.
   • The applicant works as a cleaner at Bp Luxury Care, a psychiatric hostel in Maddington, for which she earns $400pw. Her husband earns irregular income from the lease of land for gem mining in Sri Lanka. This is infinitely variable depending on the lessee’s yield but could average $200pw. They receive $100pw rental assistance from the applicant’s sister in Melbourne and that is the limit of assistance they can expect to receive from relatives.
   • Their expenses consist of: rent $280pw; food etc $160pw; school fees $70pw; bills $40pw; petrol and fares $40pw; other $40pw. This is just sustainable on the foregoing income but it is often variable depending on the husband’s income.
   • There is no capacity [to] meet the costs of representation in the Federal Magistrate’s court. Mr Henry Christie prepared the application documentation but he has retired. They would not be able to afford him anyway. They were quoted circa $10000 by one firm to take the appeal. They have nowhere near the capacity to fund this.
   • Other representation
   • CASE for refugees represented the applicant at the ... [Tribunal] but is not able to appear for her at the Federal Magistrates Court. None of the other agencies in Perth who do migration work have the capacity to take on this matter in the FMC.
   • Nature, complexity
   • This is an unusual matter in that the ... [Tribunal] decision of 2009 that the applicant wishes to take to the FMCA was a review of a Department of Immigration and Multicultural Affairs decision of 1997. She was not properly informed of the decision by DIMA in 1997, hence she had to be ‘renotified’ and was not out of time for an application for review in 2009.
   • The applicant’s circumstances have changed since 1997. Most notably she has a husband and daughter who was born in Australia and has never been to Sri Lanka. The husband and daughter were not parties to the ... [Tribunal] case because they were not applicants for the visa in 1997.
   • Apart from the grounds enumerayted [sic] in application, the ... [Tribunal] erred in law in that it found that the applicants’ fears of persecution for Convention reason as a consequence of being her husband’s wife is not well founded because it was not for a Convention reason.
   • An other [sic] matter
   • A consequence of the decision to affirm the DIAC decision to refuse the applicant a protection visa is that her husband and daughter will have to leave Australia too. The daughter was born in Australia and has never been to Sri Lanka.
   • The applicant is hopeful that she will be able [to] access the Federal Magistrates Court legal assistance scheme.
7. The correspondence provided to the Court by, or on behalf of, the applicant, was forwarded to the respondents’ solicitor, the Australian Government Solicitor.[9]
8. The AGS indicated that it did not object to the Court considering the applicant’s correspondence when determining the Pro Bono Application. Consequently, the Pro Bono Application is to be decided on the papers provided by the applicant in relation to the Pro Bono Application and such papers as have been filed in relation to the s.476 Application.

Referral to a lawyer

9. The Court may refer a party to a Registrar for pro bono assistance if to do so is in the interests of the administration of justice. In determining whether to do so the Court may take into account:
   1. the means of the party;
   2. the capacity of the party to obtain legal assistance outside the Pro Bono Panel Scheme;
   100. the nature and complexity of the proceeding; and
   4. any other matter that the Court considers appropriate.[10]

The interests of the administration of justice

10. Rules 12.01 and 12.03(1) of the FMCA Rules speak of the “interests of the administration of justice”. This Court has previously observed as follows:
    • 24. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, (“Schultz”) the High Court considered the nature of the “interests of justice”: Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:
      • The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
    • 25. Gummow J observed that the interests of justice “are even-handed”; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to “do equal justice”: CLR at p.492, HCA at par [258].
    • 26. Some of the factors ordinarily considered when assessing the interests of justice are factors which it is mandatory for this Court to take into account under the Federal Magistrates Act and Federal Magistrates Court Rules: for example, costs and convenience of hearing and determination, earlier hearing of proceedings, availability of particular proceedings and pending proceedings in another court (in this case the Federal Court).
    • ...
    • 28. In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the Federal Magistrates Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court.[11]
11. The Federal Court in Taylor v Minister for Immigration and Multicultural and Indigenous Affairs[12] observed as follows:
    • 10. In deciding whether to refer a matter to the Registrar under O 80 r 4, a judge undertakes an administrative function in aid of the jurisdiction of the Court: Schokker v Commissioner of Taxation [2000] FCA 1734. The decision whether to issue a referral certificate does not depend necessarily upon any assessment of the strength of the case. Indeed as O 80 r 1(4) makes clear, a referral under O 80 is not an indication that the Court has formed any opinion on the merits of a litigant’s case. Where a case is patently hopeless then that might form a basis for refusing an O 80 certificate. The ‘interests of justice’ is a wide term. It can encompass a circumstance in which, regardless of the merits of his appeal, the significance of the outcome to an appellant and perhaps to third parties such as family members is such that the appellant should be afforded every opportunity to properly present his or her case and should have legal representation for that purpose. That does not mean that if legal representation is unavailable the litigation must come to a halt. It may be that, if in the end, no pro bono practitioner is found who is willing to act then the appellant would have to represent himself.
    • 11. ... If a practitioner is able to be found to assist the appellant even at this late stage, that would no doubt be of assistance to the appellant and to the Court. But if no practitioner can be found within a reasonable time then the appellant will no doubt have to argue his appeal unrepresented.
    • 12. ... Referral under O 80 does not amount to a guarantee of representation.[13]
12. In considering an application for pro bono legal assistance pursuant to O.80 r.4 of the Federal Court Rules the Federal Court has subsequently observed as follows:
    • 23. When considering such an application, O 80 r 4(2) empowers the Court to take into account any matter it deems appropriate, including the means of the litigant, the capacity of the litigant to otherwise obtain legal assistance and the nature and complexity of the proceeding. This discretion is a broad one, and is not limited by those matters set out in O 80 r 4(2): see Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 319 at [10]–[11].[14]
13. It will not generally be in the interests of the administration of justice to refer to the Pro Bono Panel Scheme a matter which has no reasonable prospects of success.[15]

Means

14. The Court has before it the following undisputed information in relation to the applicant’s means:
    1. the applicant works for four hours a day cleaning for which she earns $400 a week, and has to support her husband and nine year old daughter;
    2. the applicant’s husband does not have a job but earns income from the lease of land for gem mining in Sri Lanka, which is variable but may average $200 a week;
    100. the applicant and her husband receive $100 a week in rental assistance from the applicant’s sister in Melbourne, and that is the limit of the assistance they can expect to receive from relatives;
    4. the expenses of the applicant and her husband consist of:
       1. rent – $280 a week;
       2. food – $160 a week;
       3. school fees – $70 a week;
       4. bills – $40 a week;
       5. petrol and fares – $40 a week;
       6. other – $40 per week,

and are just sustainable on the their joint income;

5. the applicant does not have the capacity to meet the costs of legal representation in this Court; and
6. as neither the applicant nor her husband are on substantive visas they have no entitlement to Centrelink benefits.

15. From the above information the Court considers that the applicant is a person of limited financial means.

Capacity to obtain legal assistance outside the Pro Bono Panel Scheme

16. The applicant’s former lawyer, Mr Christie:
    1. gave the applicant the name of the only lawyer in Perth that he knew who handled migration matters of this type;
    2. told the applicant that she could apply to the Court to assist her in finding a suitable lawyer if the other lawyer referred to in sub-paragraph (a) above was unwilling to act or his fees were beyond the applicant’s means; and
    100. told the applicant that she may enquire at the Law Society to find out if there are other lawyers in Perth who handled migration matters of this type.
17. The applicant’s migration agent suggested that none of the other agencies in Perth who do migration work have the capacity to take on this matter in this Court. It is unclear whether this assertion includes community legal centres.
18. The above does not demonstrate that the applicant has attempted to obtain legal assistance outside the Pro Bono Panel Scheme, for example by way of legal aid assistance, assistance from a community legal centre, or the Law Society.

The nature and complexity of the proceeding

19. The applicant claims in the grounds of the s.476 Application that:
    • The Tribunal failed to consider and determine the claims made by the Applicant to be a refugee by reason of her fear of persecution arising from having been a witness to an abduction (and subsequent) murder of a young girl. It thereby made a jurisdictional error and its decision was void.
    • Particulars
      1. ...
      2. ...
      100. The Applicant feared that the perpetrator, would be aware from his police contacts that the Applicant had witnessed and reported the abduction. Within a few days, the Applicant noticed that she was being followed, she realised that she was in danger and she fled Sri Lanka.
      • d) The Applicant feared that if she was returned to Sri Lanka the perpetrator would eliminate her in order to silence her because he would impute to her a political motive to pursue him and be a witness against him (either directly to the authorities or through the opposition United National Party (UNP) because of her current de facto husband’s membership of and support for the UNP.
      • e) The Tribunal did not consider the Applicant’s claims because it wrongly believed that the Applicant’s claims to be a refugee arose out of the Applicant having been a witness to a motor vehicle accident and that the Applicant had conceded that there was no Refugees Convention basis for such claims.
      • f) The Applicant had made no such concession and at all material times had wished her own claims to be considered and determined by the Tribunal.
20. The Tribunal Decision indicates that the applicant’s adviser conceded that the two reasons cited by the applicant for fearing persecution were not Convention reasons, and that this concession was made in submissions received by the Tribunal on 30 October 2009.[16] The Court does not, as yet, have the benefit of a Court Book, or any audio or written transcription of the hearing before the Tribunal, in which the submissions to the Tribunal might be disclosed. Therefore, it is not presently possible, nor strictly necessary, to objectively determine whether such concessions were made. It is sufficient to observe that the grounds of the s.476 Application raise issues for determination. Firstly, there is a serious, and possibly determinative issue of fact, as to whether or not the concession was made. Although that is an issue of fact, it is an issue of fact which gives rise to the second issue, which is that if the concession was not made, then there is an arguable issue as to whether or not there was jurisdictional error by reason of failure to take account of a relevant consideration, namely the applicant’s fears of persecution for a Convention reason or reasons. Thus, this is not a case like Rivera which, if the applicant’s facts were to be made out, has no reasonable prospect of success, but rather a case which if the applicant’s case is made out may be arguable. It is not necessary at this stage to make, and the Court expressly does not make, any finding with respect to the existence or otherwise of jurisdictional error, and it suffices to say that the matter is arguable.
21. The matter is of a nature whereby Counsel, in giving advice in relation to the proceedings, might be of assistance not only to the applicant but also, ultimately, to the Court. Counsel will be able to advise on whether or not, as a matter of fact, the concession alleged by the Tribunal to have been made, has been made, and the effect of that concession in relation to this Court’s ability to grant a remedy exercising powers of judicial review in relation to the s.476 Application. Depending upon Counsel’s advice it is possible that the matter may go no further, resulting in an expedient and less costly resolution of the matter.[17] If, however, Counsel advises that:
    1. the concession was not made, the applicant will require advice as to whether or not, in the circumstances, there was a jurisdictional error of the type claimed in the s.476 Application, and the prospects of success of that application; or
    2. there are no or limited prospects of success, there is a possibility that the matter will not proceed in this Court, and that would constitute an expedient and just resolution of the matter in those circumstances;[18] or
    100. there is, or it is strongly arguable that there is, jurisdictional error in the Tribunal Decision, then that is a matter in relation to which both the applicant and the Court would likely be assisted by having Counsel conduct the matter on behalf of the applicant.
22. It is unlikely that an applicant who is a native of Sri Lanka, speaks Sinhalese as a first language and will require an interpreter for the hearing, and who works as a cleaner in an aged care facility, will be able to render much, if any, assistance to the Court in the event of an arguable case of jurisdictional error. Counsel would also be of assistance to the Court in arguing the matter on behalf of the applicant, and explaining to the Court why it might be said that the Tribunal committed jurisdictional error. In short, there will be an appropriate exposition of the applicant’s arguments, and a contradictor to the arguments put by the respondents.
23. Given the nature of the requirements to establish jurisdictional error and the applicant’s likely inability to assist the Court with respect to any argument on jurisdictional error, the Court is of the view that the nature and potential complexity of the matter is such that Counsel would be of assistance to both the applicant and the Court in the future conduct of the proceedings, including preparation of relevant Court papers, if necessary.

Other matters

24. There are some other matters which, in the overall circumstances of this case, also lend themselves to the applicant being assisted by Counsel. Although the matters are, with one exception, not directly related to the question of jurisdictional error which has been raised, they are nevertheless circumstances which, in the exercise of the broad discretion, a Court might consider as being in the interests of the administration of justice such as to warrant assistance being given to the applicant under the Pro Bono Panel Scheme. Those circumstances are:
    1. that the life and liberty of the applicant might be imperilled if she is required to return to Sri Lanka, as might the life and liberty of her partner whom she met in Australia in 1996 and with whom she has been living since 1998, and her daughter who was born in Australia and is now nine years old. Although the Tribunal found that it had no jurisdiction with respect to visa applications for the partner and daughter the fact that it is argued that the life and liberty of a family unit will be imperilled if the applicant (and consequently her partner and child) are forced to return to Sri Lanka is a matter which, in the circumstances of the present case, entitles the applicant, in the interests of the administration of justice, being given the best opportunity to put forward any arguable case;
    2. that the applicant has English as a second language, and is probably not likely to be of significant assistance to herself or the Court in relation to submissions on relevant legal issues. Although this is a factor which affects many applicants in migration cases, it is relevant in the circumstances of this case if the applicant has an arguable case that there was jurisdictional error, because it is in the interests of the administration of justice that such a case be put forward in a proper and cogent manner to the Court;
    100. the utterly extraordinary circumstance that the applicant had a decision made by a delegate in relation to her case in July 1997, but was not properly notified of that decision until 2009, and has consequently been living in Australia for a period of 13 years, and has been able to live with her partner and have a child with her partner during that time. In those circumstances, if there is an arguable case of jurisdictional error by the Tribunal, it is in the interests of the administration of justice that a proper and cogent argument be put on behalf of the applicant.

Conclusion

25. In all the circumstances, including some of the unusual personal and administrative circumstances affecting the applicant, the Court considers that it is in the interests of the administration of justice that a referral to a Registrar for pro bono assistance ought to be made, and that assistance ought to include:
    1. advice in relation to the proceedings;
    2. the drafting or settling of documents to be filed or used in the proceedings; and
    100. representation generally in the conduct of further proceedings before this Court.
26. The costs of the application will be reserved.

I certify that the preceding 26Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-sixtwenty-six (26) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:

Date: 18 August 2010

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[1] “s.476 Application”.
[2] “Migration Act”.
[3] “Tribunal”.
[4] “Tribunal Decision”.
[5] “Pro Bono Application”.
[6] “6 July 2010 Letter”.
[7] “FMC Rules”.
[8] “Pro Bono Panel Scheme”.
[9] “AGS”.
[10] FMC Rules, r.12.03(1) and (2).
[11] Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at paras.24-26 and 28 per Lucev FM. See also Bartucciotto v Western Health Care & Ors [2007] FMCA 26; (2007) 94 ALD 387 at 392 per Lucev FM; [2007] FMCA 26 at para.26 per Lucev FM.
[12] [2005] FCA 319 (“Taylor”).
[13] Taylor at paras.10-12 per French J.
[14] SZGSI v Minister for Immigration [2009] FCA 200; (2009) 107 ALD 414 at 419 per McKerracher J; [2009] FCA 200 at para.23 per McKerracher J.
[15] Rivera v Minister for Home Affairs [2008] FCA 1 at para.8 per Tamberlin J (“Rivera”); Taylor at para.10 per French J.
[16] Tribunal Decision at paras.34 and 37.
[17] See Federal Magistrates Act 1999 (Cth), ss.3 and 42.
[18] See Federal Magistrates Act 1999 (Cth), ss.3 and 42.