MZWTX v Minister for Immigration

[2007] FMCA 2158

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWTX & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2158

MIGRATION – Review of Refugee Review Tribunal – finding of fact.

Applicants: MZWTX, MZWTY, MZXOM & MZXOP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 63 of 2007

Judgment of: Riethmuller FM

Hearing date: 8 November 2007

Date of last submission: 8 November 2007

Delivered at: Melbourne

Delivered on: 8 November 2007

REPRESENTATION

Counsel for the Applicants: Mr J. Gibson

Solicitor for the Applicants: Frank Sabelberg Lawyers Pty Ltd

Counsel for the First Respondent: Ms S.A. Burchell

Solicitor for the First Respondent: Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 63 of 2007

MZWTX, MZWTY, MZXOM & MZXOP

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Findings on whether Newspaper Article was provided

to the Tribunal

(Revised from Transcript)

1. This matter has come back this afternoon for my findings of fact with respect to the provision of an original print of a broadsheet newspaper page containing an article central to the decisions made by the Tribunal in this case.  I make these findings of fact at this stage so as to facilitate the hearing of the matter on the next hearing date, so that the parties are aware of what the factual matrix will be when compiling the submissions with respect to the law, given the nature of the proceedings and the application.

2. The factual question that I must answer here is whether or not I accept on the balance of probabilities that the Applicant provided an original of the broadsheet newspaper sheet containing an article reporting a grenade attack on the Applicant’s family (KG1 to the Applicant’s affidavit filed 31 August 2007) to the first Tribunal member.  In this regard, I have the evidence of the Applicant in an affidavit to the effect that he did so, the evidence of his solicitor in an affidavit describing the tape of the hearing in which it appears in the solicitor's view that it is clear that the original article, an original broadsheet was handed up to the Tribunal member. 

3. I have taken the time over the luncheon adjournment to listen to the tape and on side B of that tape, one can clearly hear an exchange between the Tribunal member and the Applicant and his advisers with respect to this newspaper article.  The Tribunal member in that exchange quite properly identifies the article and identifies that he has a translation of it, but did not have the original of it.  He asks for that original, and one can hear the shuffling of papers, and the original sounds like it is produced in that one can hear further unfolding of paper that is certainly reminiscent of the unfolding of a broadsheet page, and the comments by the Tribunal member make clear that he has received then the original article.

4. On the evidence before me, I have no hesitation in accepting the evidence that the original of the broadsheet was provided to the Tribunal member, during the course of the hearing. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:  Jessica McLean

Date:  20 March 2008