12 July 2011

Federal Court finally loses patience with secret advisers

The Honourable Geoffrey Flick is one of the most respected authorities and commentators on Australian administrative law, and has been a Judge of the Federal Court of Australia since 2007. Not the sort of person you would expect to lose his cool.

In a judgment handed down on 6 July this year he came about as close to that as a judicial officer of his standing ever could. The case, SZOZG v MIAC [2011] FCA 756, is reported at


The case itself was a run-of-the-mill appeal from a decision of the Federal Magistrates Court which itself was an appeal from the Refugee Review Tribunal. But it was precisely the similarity of the case with countless others coming before the Courts that incensed his Honour. An applicant who barely spoke English had filed, somewhat out of time, an appeal from the lower Court using language that the appellant himself certainly did not understand and which, while essentially meaningless from a legal point of view was virtually identical to numerous other appeals and first instance applications making their way through the judicial system.

In an interesting example of judicial activism, his Honour managed to extract the identity of the "helper" who had drawn up the paper work and, after giving her a chance to state her position, had referred her to the Department of Immigration. What action they may take is not yet known.

The Court's frustration with the inaction of the authorities up to now in taking any concerted action against these anonymous, and generally incompetent, "helpers" is strongly expressed in the judgment. The waste of Court time and resources is obvious, as is the ultimate denial of real justice to the applicants. The underlying message is plain: the lack of a formal legal aid framework for immigration cases is counter-productive in the long term.

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