Australian Immigration Daily News

Do applicants for judicial review have a right to publicly funded representation?

The Full Court addressed this very important question in a decision that was handed down last Friday, 20 May: AMF15 v Minister for Immigration and Border Protection (2016) FCAFC 68.

Imagine, for a moment, that you are in the position of a person whose application for a protection visa  has been refused by the Department and the refusal has been affirmed by the AAT.  You don’t have money, don’t speak English well or at all, don’t understand the Australian legal system or concepts of judicial review. You just think that the Department and the Tribunal have misunderstood your case and have erroneously refused your visa.  Whether the Department or the Tribunal have found your claims to be credible or not, you have a genuinely held subjective fear of persecution:  You are truly frightened that if you are forced to return to your home country, you will be killed or tortured.

It’s my perspective from reading the decisions that are reported on Austlii involving judicial review proceedings for non-humanitarian visa applicants that self-represented applicants before the Federal courts almost always lose.  I cannot recall ever seeing a case where a self-represented person has been successful.

So, should there be some form of “legal aid” for judicial review applicants?

In the US, where I come from, there is a very famous Supreme Court case called Gideon v Wainwright, where it was held that a defendant in a criminal proceeding has a right to legal representation. As a result of that decision, there are public defender offices all across the country, in every jurisdiction.

Should there be a government funded panel of lawyers in Australia available at least to applicants for protection visas, if not to applicants for non-humanitarian categories of visas?

Would that help “unclog” the courts?  Statistics suggest that there are about 3,000 judicial review applications in the Federal Circuit Court every year.  If the applicants had legal representation, would that assist the courts in dealing with those cases more efficiently and fairly?

What I do believe is that it would be nearly an impossible “ask” for self-represented judicial review applicants to articulate, when they are asked by a judge, what “jurisdictional error” they are alleging took place before the Tribunal.  Concepts of jurisdictional error are sufficiently complicated that even applicants who have highly skilled and experienced advocates lose their cases before the Federal courts. And it is not unheard of, at all, for a decision made at the Federal Circuit Court level to be reversed on appeal by the Federal Court.

Well, the answer given by the Full Court in AMF15 was that the right to procedural fairness does not go so far as to be entitled to have a publicly-funded lawyer represent the applicant.

However, what AMF15 does show us is that there are circumstances where the right to procedural fairness can protect a judicial review applicant from having their case thrown out at an early stage of the proceedings.

The circumstances in AMF15 were that the applicant was an Iranian national who had unsuccessfully sought a protection visa, and whose application for merits review had been unsuccessful at the Tribunal.

He filed an application for judicial review in which the grounds were poorly articulated. His application said only that the Tribunal had committed “jurisdictional error in apply relevant immigration laws regarding protection and asylum in Australia while making decision on my application for protection”  and that his protection claim had been rejected “very unfairly in the absence of any adverse evidence and therefore breached procedural fairness”.

What happened once the court proceedings had been commenced?

The Minister served a response on the applicant which stated that the Minister opposed the grant of relief on the basis that there was no arguable case. The response also said that “we may ask the Court to hold an immediate show cause hearing under Rule 44.12 of the Federal Circuit Court Rules 2001…At the show cause hearing we will ask the Court to dismiss your application.

Then, two days before the first court date, the Minister sent a copy of the Court Book to the applicant by express post. The materials in the Court Book amounted to 318 pages, virtually all of which was in English.  The applicant apparently did not receive the Court Book until the day before the first court date.

When the matter came before the Federal Circuit Court, the Minister’s legal representatives sought to have the judicial review application dismissed . 

There was an exchange between the presiding judge (Judge Street) and the applicant that went along the following lines:

His Honour: “Mr Applicant, the (Minister) has moved to have your application dismissed on the grounds that there is no jurisdictional error revealed by the application. What do you wish to say?”

The Applicant (through his interpreter): “Well your Honour, my life was in danger but I couldn’t clarify my claims to my lawyer and I’m not legally represented here. I requested legal representative from Legal Aid but they were too late to respond to my request. This is a very difficult situation for me. I ‘m very stressed and my life is in danger back home.

His Honour: This is not a court of appeal. This is not a court that can review the merits. The court is confined in its jurisdiction to an excess of jurisdiction by the tribunal”. 

After a further exchange with the applicant, Judge Street dismissed the judicial review application. 

Was there a denial of procedural fairness in this case? 

The Full Court concluded that there had been. 

The Full Court’s decision refers to case law which holds that “a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial”. 

While noting that it is not a helpful approach to create a “checklist” for determining when there has been procedural unfairness in summarily dismissing a judicial review application, the Full Court found that the following circumstances in AMF15 led to it determine that the applicant had been denied procedural fairness in the particular circumstances of his case: 

• The primary judge at the Federal Circuit Court had not tried to find out whether the applicant understood the procedures relating to a “show cause” hearing, or that the applicant had the “onus” (burden) of persuading the court that his application had raised  an arguable case;
• The primary judge made no attempt to determine the applicant’s level of understanding of what was happening on the first court date, when the Minister’s legal representative was seeking to have the judicial review application dismissed and the Court was considering that request;
• The primary judge did not seek to explain the court’s processes in a meaningful way, including the applicant’s right to seek an adjournment;
• The applicant had received the Court Book only the day before the first court date, and the primary judge did not attempt to determine whether the applicant had sufficient time to have it interpreted and to review it for the hearing;
• The primary judge had not asked the applicant what his view was concerning the request by the Minister’s legal representative to move immediately to hearing the minister’s application for dismissal of the case,  or whether he wished to apply for an adjournment. 

So, the ultimate moral of this case is that if a client comes to you and tells you that their judicial review application has been thrown out of court on the first court date, it would be a very worthwhile exercise to assess how the proceedings were dealt with by the court.  There may be a very real chance that your client was denied procedural fairness. And there may very well be a remedy!

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.