Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 319

FEDERAL COURT OF AUSTRALIA

Taylor v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 319

PRACTICE AND PROCEDURE – pro bono legal assistance – effect of Order 80 certificate – whether certificate able to be revoked – no guarantee of legal representation – appeal adjourned in absence of legal representation – Order 80 certificate in force – matter referred back to Registrar to attempt to secure legal assistance on appeal

Migration Act 1958 (Cth)

Federal Court Rules O 80

Schokker v Commissioner of Taxation [2000] FCA 1734 cited

NEVILLE TAYLOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

WAD 210 OF 2004

FRENCH J

30 MARCH 2005

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD210 OF 2004

BETWEEN: NEVILLE TAYLOR

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 30 MARCH 2005

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The Registrar is requested to make a further attempt to secure legal assistance for the appellant for advice and for representation at the hearing of the appeal if thought appropriate by counsel providing the legal assistance.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD210 OF 2004

BETWEEN: NEVILLE TAYLOR

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 30 MARCH 2005

PLACE: PERTH

REASONS FOR JUDGMENT 1 On 3 September 2004, the appellant, Neville Taylor, filed a notice of appeal in this Court against a judgment of RD Nicholson J given on 20 August 2004. RD Nicholson J had dismissed an application for judicial review of a decision of the Minister for Immigration and Multicultural Affairs (MIMIA) made on 21 December 2001 cancelling the appellant's visa pursuant to s 501 of the Migration Act 1958 (Cth) on the basis that he was not a person of good character. The decision was based essentially upon offences for which Mr Taylor was convicted and for which he was sentenced to a term of four years imprisonment in October 2000. He had been convicted in 1982 for a number of very serious offences including rape and sentenced to terms of imprisonment totalling fourteen years. However it was decided not to deport him in respect of those offences. In 1988 the then Minister sent him a warning that the decision had been made not to deport him but that it could be reviewed in the event of any further adverse behaviour. 2 On 1 October 2004, I signed a certificate under O 80 of the Federal Court Rules referring Mr Taylor to the Registrar for referral to a legal practitioner on the pro bono panel for legal assistance. The referral was made for advice in relation to the appeal and for representation generally in its conduct. 3 The Registrar made inquiries pursuant to the certificate and on 2 November 2004 Dr John Cameron was appointed as pro bono counsel. On 2 February 2005, the Registry received a letter from Dr Cameron seeking leave from the District Registrar to cease to provide legal assistance to Mr Taylor. That leave was given on 9 February 2005 by letter to Dr Cameron. In the meantime the appeal was listed for hearing before the Full Court on 21 February 2005. On 18 February 2005, Mr Taylor filed a notice of motion seeking, among other things, an adjournment of the hearing. He sought the adjournment on the basis that he had secured the services of another counsel acting pro bono to review the conviction against him in the District Court in 2000 which evidently underpinned the cancellation decision. 4 On 21 February 2005, the Full Court adjourned the appeal to the following day to allow Mr Taylor an opportunity to obtain more detail about, inter alia, the grounds of the proposed appeal against the appeal in the District Court. 5 On 22 February 2005, the Full Court adjourned the appeal generally. In adjourning the appeal Moore J, with whom the other members of the Court (North and Emmett JJ) agreed, said: 'There are a multitude of reasons identified in order 80 why a legal practitioner can seek leave and be given leave to withdraw. They include, and I paraphrase the provisions of order 80, that the legal practitioner takes the view that the proceedings will not or may not succeed. We are not aware of the reasons given by the legal practitioner for seeking leave and obtaining leave to withdraw. It may be that that is one of the bases; it may be there is an entirely different bases. The point nonetheless is that a judge of this court has made an order, and until such time as that order is varied or revoked, it operates in the appellant's favour to have prima facie legal representation in the appeal. It may be that the reasons given by the legal practitioner would warrant a judge of this court varying or revoking the earlier order, but that has not happened, and whilst there is an operative order of the court under order 80, it would appear to me appropriate for that to be recognised in the approach we take to the adjournment application. In my view, it would be appropriate to adjourn the appeal. Whether the matter will be listed in the May sittings would be ultimately a matter for the chief justice in consultation with the listing appeals judge in Western Australia. Accordingly, the only order I would make is that the appeal be adjourned generally, and it may be that in the meantime the order that was made under order 80 may have to be scrutinised by a judge of the court. For those reasons I would order that the appeal be adjourned.' North and Emmett JJ agreed with the order and the reasons given. 6 On 16 March 2005, the Australian Government Solicitor wrote to the District Registrar referring to the events in the Full Court and noting that Mr Taylor's most recent period of immigration detention has been on foot since 20 August 2004. The Australian Government Solicitor requested that in light of Moore J's comments the matter be referred to me to consider the O 80 referral and whether it should be revoked. The Australian Government Solicitor also sought a relisting of the appeal in the May sittings. 7 Mr Taylor wrote to the Court on 23 March requesting that further consideration be given for him to be represented by a Court appointed solicitor 'versed in immigration law and human rights'. He said: 'Obviously I consider that my case is crucial for my family and as I am only a layperson I may well miss crucial points when trying to represent myself, especially as I would be up against a QC. In the interim I am still trying avenues of my own by going through a list of as many lawyers as I can in an attempt to obtain representation. I have even approached my family in the hope of obtaining a loan but as they have young children with commitments they are not financial enough at this stage to assist me.' 8 Order 80 provides, in the relevant parts: '(1) In the interpretation of this order, preference must be given to a construction that will promote, and be consistent with, the purpose in subrule (2) and the statements in subrules (3) and (4). (2) The purpose of this order is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance. (3) The provision of legal assistance under this order is not intended to be a substitute for legal aid. (4) A referral under this Order is not an indication that the Court has formed an opinion on the merits of a litigant's case. (5) Nothing in this order requires the Court to make a referral, or to consider a litigant's case for referral, under this order.' Order 80 r 4 provides: '(1) The Court or a Judge may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance. (2) For subrule (1), the Court or Judge may take into account: (a) the means of the litigant; and (b) the capacity of the litigant to obtain legal assistance outside the scheme; and (c) the nature and complexity of the proceeding; and (d) any other matter that the Court, or Judge, considers appropriate. (3) A referral to the Registrar is effected by the issue of a Referral Certificate in accordance with Form 161 in relation to the litigant. (4) If a Referral Certificate has been issued, the Registrar must attempt to arrange for the legal assistance mentioned in the certificate to be provided to the litigant by a legal practitioner on the Pro Bono Panel. (5) However, the Registrar must refer a litigant to a particular legal practitioner only if the practitioner has agreed to accept the referral.' Order 80 r 7 then provides: '(1) A legal practitioner who has agreed to accept a referral may cease to provide legal assistance to the litigant only: (a) in the circumstances set out in any practice rules governing professional conduct that apply to the legal practitioner; or (b) with the written agreement of the litigant; or (c) with the leave of the Registrar. (2) If a legal practitioner ceases to provide legal assistance to a litigant, the practitioner must inform the Registrar in writing within 7 days.' 9 Under O 80 r 8 the Registrar, in deciding whether to give leave to a practitioner engaged pursuant to a referral, to cease the provision of legal assistance, is required to have regard to a number of matters. Those matters include any conflict of interest on the part of the legal practitioner, the existence of a substantial disagreement between practitioner and client and any view of the legal practitioner that the client's case is not well founded in fact or law or is otherwise an abuse of process. 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 In the present case I see no reason to revoke the order. The interests of justice to which I am required to have regard in making an order under O 80 r 4 include the importance of the outcome of the appeal to Mr Taylor who has lived in Australia since 1980. The interests of justice also import a consideration of the effect of the decision upon his wife and adult children and his extended family including three grandchildren. 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 There may be a question whether I have the power to 'revoke' the referral certificate signed by me under O 80. The certificate simply evidences referral of the matter to the Registrar. Order 80 does not provide for revocation of a referral. The referral is an administrative act which, having been done, cannot, of its nature, be recalled. It imposes upon the Registrar an obligation to 'attempt to arrange for the legal assistance mentioned in the certificate'. It does not oblige him to secure such assistance. Referral under O 80 does not amount to a guarantee of representation. 13 In the present case it seems appropriate that I simply refer the matter back to the Registrar so that he can make further inquiries about the availability of pro bono legal assistance for the appeal. If no counsel can be found then the further progress of the matter will be in the hands of the Full Court. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.