SZFRQ v Minister for Immigration and Citizenship [2007] FCA 210 (26 February 2007)

Last Updated: 8 March 2007

FEDERAL COURT OF AUSTRALIA

SZFRQ v Minister for Immigration and Citizenship [2007] FCA 210

MIGRATION – no point of principle

Migration Act 1958 (Cth) ss 424A, 422

SZFRQ v Minister For Immigration & Anor [2006] FMCA 1685









SZFRQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
2255 OF 2006

TRACEY J
26 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	2255 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFRQ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	26 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to read "Minister for Immigration and Citizenship".
2. The appeal be dismissed with costs fixed at $1500.00

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	2255 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFRQ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TRACEY J
DATE:	26 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of a Federal Magistrate given on 3 November 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 20 December 2004 and handed down 12 January 2005: see [2006] FMCA 1685. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant.

2 The appellant is a citizen of India who arrived in Australia on 17 January 2004. On 2 February 2004 the appellant lodged an application for a protection visa. On 4 March 2004 a delegate of the first respondent refused the application and, on 24 March 2004, the appellant applied to the Tribunal for a review of that decision. On 14 April 2004 the Tribunal invited the appellant to attend a hearing on 2 June 2004. The appellant attended the hearing, was assisted by a Hindi interpreter and gave oral evidence. On 13 July 2004 the Tribunal was reconstituted due to the retirement of the member who had conducted the original hearing.

3 On 31 August 2004 the appellant was sent a letter pursuant to s 424A of the Migration Act 1958 (Cth) ("the Act") informing him of the reconstitution of the Tribunal. The appellant responded in a letter dated 16 September 2004 requesting a new hearing. He alleged errors in translation at the original hearing. The Tribunal noted this request in a letter dated 8 October 2004 and, although rejecting it, the appellant was given an opportunity to make further submissions or claims in writing by 9 November 2004. The letter was returned to the Tribunal unclaimed on 29 November 2004. On 6 December 2004 a further hearing was scheduled for the appellant on 17 December 2004. The appellant attended and was assisted by a Hindi interpreter – the same interpreter who had assisted at the hearing on 2 June 2004.

4 Having regard to the grounds raised in the appellant’s application to the Federal Magistrates’ Court and to the grounds of appeal on which he relies in this Court it is unnecessary to rehearse the claims which he made in support of his application for a protection visa. They appear in the Tribunal’s reasons which I have read. The Tribunal was not satisfied that Australia’s protection obligations were engaged and confirmed the decision under review. The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates’ Court.

GROUNDS BEFORE THE FEDERAL MAGISTRATE

5 By amended application filed in that Court on 19 May 2005 the appellant sought a review of the decision of the Tribunal on the ground that the Tribunal did not accord the appellant procedural fairness. He contended that the Tribunal had been reconstituted "against the system" and that the interpreter had failed to interpret his claims correctly and "suppressed" him from speaking. The appellant asserted that the invitation to provide further submissions without granting another hearing was "unusual". Further, the appellant claimed that the use of the same interpreter to assist him at the second hearing, after the appellant had complained about his earlier performance, amounted to procedural error.

THE DECISION OF THE FEDERAL MAGISTRATE

6 The Federal Magistrate found that the reconstitution of the Tribunal was undertaken consistently with s 422 of the Act and that it did not constitute a jurisdictional error.

7 The learned Magistrate found no jurisdictional error on the part of the Tribunal arising from the allegations of errors of translation, "suppression" and the use of the same interpreter at both hearings. The appellant had not provided any evidence of errant translation. His Honour noted that no complaint was directed to the translation provided at the second hearing and that, at that hearing, the appellant had had the opportunity of telling the Tribunal about any material errors which had occurred at the first hearing. He had not done so.

NOTICE OF APPEAL

8 By notice of appeal to this Court filed on 14 November 2006, the appellant raises the following ground:

"That the Learned Federal Magistrate failed to appreciate the harm faced by the appellant as the appellant was persecuted by the Muslim Student Association League and the members of the Indian National Lok Dal. The appellant’s case requires the judicial notice by this Court as the appellant’s case was twice heard by the RRT. The appellant objections were as to the translation by the interpreter during the course of the interview. On the second occasion the member of the RRT retried, on the second occasion another member heard the case. This has resulted in the legal and jurisdictional error by the RRT."

9 At the hearing of the appeal before me the appellant appeared in person. He had the assistance of an interpreter. He was invited to make submissions in support of his appeal but he declined to do so.

10 The learned Magistrate was, in my opinion, correct to dismiss the appellant’s application for the reasons which he gave.

11 The appeal should be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated: 26 February 2007

The appellant appeared in person
Counsel for the Respondent:	Ms G Broderick
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	26 February 2007
Date of Judgment:	26 February 2007