SZNYL v Minister for Immigration & Anor [2010] FMCA 98 (15 February 2010)

Last Updated: 1 March 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNYL v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 98

MIGRATION – Refugee Review Tribunal – practice and procedure – whether adjournment should be granted to allow applicant to file a transcript of the Refugee Review Tribunal hearing.

Applicant:

SZNYL

First Respondent:

MINISTER FOR IMMIGRAION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2341 of 2009

Judgment of:

Emmett FM

Hearing date:

15 February 2010

Date of Last Submission:

15 February 2010

Delivered at:

Sydney

Delivered on:

15 February 2010

REPRESENTATION

Applicant appeared on his own behalf

Counsel for the Respondent:

Ms A. Mitchelmore

Solicitors for the Respondent:

Ms N. Johnson, Sparke Helmore

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2341 of 2009

SZNYL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant seeks an adjournment of this morning’s hearing in order to have a transcript of a hearing before the Refugee Review Tribunal (“the Tribunal”) prepared.
2. The applicant has raised three matters this morning to which he says a transcript of the hearing would be relevant.
3. The first matter, is that he says he told the Tribunal that Fr Cosmas, who provided a letter in support of the applicant’s protection visa application, was a person who did not interview the applicant. The Tribunal ultimately found that Fr Cosmas had interviewed the applicant, however, acknowledged that the applicant had said that he was not interviewed by Fr Cosmas. That matter alone would not be sufficient for me to consider adjourning this matter.
4. The second matter that the applicant raises, is that he says that the Tribunal’s findings of inconsistency in respect of evidence that he gave to the Tribunal was because the Tribunal misunderstood his evidence. When I sought to explore these matters further with the applicant he purported to give explanations about answers that the Tribunal had recorded in its decision record that it had given, rather than saying that he had not given that evidence. Again, that is not an issue sufficient to persuade me that an adjournment should be granted.
5. The a third matter raised by the applicant, is that the applicant said that he asked to give the Tribunal further information about the Mungiki tribe, being the tribe in respect of whom he claims a well founded fear of persecution for a Convention-related reason. The applicant stated that the Tribunal refused his request on the basis that it would have regard to other information. There is no mention in the Tribunal’s decision record of any such request. Further, it is not at the moment apparent to me what that information would have been and how it would have been supportive and relevant to the applicant’s claims. That is a matter in respect of which there has been no evidence provided to this Court. However, it is a matter in respect of which a transcript, at least, may be relevant.
6. The applicant has also sought to read, in support of his application to this Court, an affidavit affirmed by him and filed on 22 November 2009. That affidavit refers to the Tribunal’s hearing tapes. The applicant has informed the Court that he has those recordings in Court, however, he does not have any equipment to allow him to play those tapes to the Court. Beyond those matters identified by the applicant in relation to his request for a transcript, the applicant has not identified any further issue that would make the recordings particularly relevant over that of a transcript.
7. The first respondent opposes the adjournment on the basis that the applicant has had ample time to file and serve evidence in support of his application. The first respondent is entirely correct that on 16 October 2009 the applicant was directed by me to file and serve by way of affidavit any additional evidence, including any transcript upon which he intended to rely, by 27 November 2009.
8. The directions informed the applicant that if he was to rely on a transcript of the evidence, he would need to have that transcript prepared and verified by affidavit. The applicant was also directed to give notice to the first respondent and the Court if he wished to rely on recordings of the Tribunal and that that notice must state the issue to which any part of the recording was relevant and the approximate duration of the relevant recording. That notice was also to be given by 27 November 2009.
9. No notice was given in respect of the applicant’s intention to rely on the recordings. The directions also stated that, if the applicant was intending to rely on recordings, he would need to provide appropriate equipment to allow those recordings to be played in Court at the hearing. The Court went through these directions with the applicant at the directions hearing. For whatever reason, the applicant has chosen not to comply with those directions in respect of the transcript and the recordings. However, the applicant has mentioned an intention to rely on the hearing tapes in his affidavit, affirmed 26 November 2009, although he has not provided equipment to do so, and neither has he identified the issue to which they were relevant.
10. The affidavit of the applicant also annexes country information that the applicant acknowledges was not given by him to the Tribunal at the time of his hearing. It is information that was available prior to his Tribunal hearing and information which was not otherwise considered by the Tribunal. The applicant has not identified what it is about this material that is different from the country information to which the Tribunal should have had regard and why the Court should have had regard to this material. However, he has at least annexed it in an affidavit.
11. I am mindful of the competing interests of justice in respect of these parties and the interests of the community generally in having finality of these administrative decisions, as well as the fact that the applicant is unrepresented before this Court.
12. In light of the steps that the applicant has taken in providing evidence in support of his application to this Court, annexing the country information that he says the Tribunal should have considered and bringing the Tribunal hearing tapes (whilst an exploration of the issues this morning has not made clear the issues to which those matters are relevant), the interests of justice, in my view, suggest that the applicant ought to be given one further opportunity to file an amended application giving complete particulars of each ground of review relied upon and any evidence in support.
13. Accordingly, the applicant should be given leave to file any amended application and further evidence, in particular, any transcript of the tribunal hearing. He should also be directed to file and serve written submissions in support of his application making clear the issues to which the documents annexed to his affidavit and the transcript are relevant.
14. I also have regard to the fact that the applicant has indicated to the Court that he is in a position to pay for a transcript, which has been estimated in the vicinity of around $500. The Minister informed the Court that the costs would be about $250 for the one hour hearing. The Tribunal hearing lasted for two hours. Whilst there has been no firm figure, the applicant has informed the Court that he is able to, and wishes for an opportunity to have a transcript prepared, and he understands that the costs are likely to be in the order of $500.
15. For that reason I propose to make directions to reflect those matters.

RECORDED : NOT TRANSCRIBED

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 26 February 2010