SZAXV v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 692

FEDERAL COURT OF AUSTRALIA

SZAXV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 692

SZAXV V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1766 OF 2004

MADGWICK J
25 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1766 OF 2004

BETWEEN:	SZAXV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	25 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.        The appellant pay the costs of the respondent, assessed in the amount of $3,000.

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	N 1766 OF 2004

BETWEEN:	SZAXV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	25 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. It is the over-generous practice of the officers of this Court to order an interpreter at public expense for litigants who say that they do not sufficiently understand English to enable them to present or defend their cases in this Court.

2. The appellant is an Indian national of Tamil ethnicity who informed the court officers that he would wish to have a Tamil interpreter to assist him.  Arrangements were made for a Tamil interpreter to be present but have been frustrated by the unavailability, in the end, of a Tamil interpreter for today.  The appellant sought an adjournment which was opposed.

3. The appellant says that he does not have sufficient English to present his case and he has sworn to that inability.  In cross-examination, however, despite his speaking with a heavy accent, it is clear that he is an intelligent man who quite understood the questions that were asked of him, if necessary, with some repetition and simplification to assist him.

4. The solicitor for the respondent demonstrated a ready capacity to simplify his questions as the appellant might need and the appellant was able to respond appropriately to the questions.  I flatter myself that I am also capable of simplifying any question I might have to put to the appellant so that he could understand it.

5. The appellant is a tertiary educated man who qualified in India as a civil engineer.  When he came to Australia about three years and nine months ago he said that he could read and write English, although he could not speak it.  His plan when he came here was to import and export marble and tiles.  It seems those plans have not worked out but he is employed, surrounded by English speaking people, as a drycleaner. 

6. He said that he had read and understood the judgment from which he sought to appeal and I have no doubt that means were at hand for him to obtain assistance to understand that judgment.  Before the learned Magistrate, it appears that the appellant did not wish to make any oral submissions.  He did not, as the learned Magistrate said, take up the opportunity given to him by a Registrar at a directions hearing, thereafter to file and serve an amended application and evidence.

7. The appellant’s claims were rejected by the Refugee Review Tribunal (‘the Tribunal’) on credibility grounds.  The Tribunal Member hearing the matter held the view that his evidence was riddled with inconsistencies and contradictions.  The learned Federal Magistrate found that:

   ‘The findings made by the presiding member were reasonably open to her on the material before her.  There is no [jurisdictional] error apparent in the decision of the [Tribunal].’

8. The appellant’s notice of appeal gives as his grounds the following:

   ‘2.A writ of mandamus second respondent (Tribunal) [redetermine] the application for a protection visa in accordance with law such further or other orders as to the Court sees fit.’

9. The appellant indicated in cross-examination that what he wanted to say to me was that he feared a bad time if he were returned to India.  It is apparent that his complaint is about factual matters.  I am confident that he understands that he needs to overcome the judgment of his Honour in the court below, which pointed out that mere factual matters, if supported by evidence before the Tribunal, could not warrant his having a review.

10. In the circumstances, I do not consider that procedural fairness requires that the matter be further adjourned in order that a Tamil interpreter may be obtained for the appellant.  I think that he has a fair and reasonable opportunity, given his level of facility with oral,  written and read English, to present his appeal.

11. The applicant has now indicated that he does not wish to say anything in support of his appeal.

12. This is an appeal, despite the irregularity of the notice of appeal, from a decision of Federal Magistrate Driver given 3 November 2004.  His Honour dismissed an application for judicial review brought by the appellant in respect of an adverse decision of the Tribunal made on 30 May 2003 and handed down on 26 June 2003.

13. The appellant is an Indian national of Tamil descent.  He claimed to fear persecution on the basis of his caste and political opinion.  As to the claim that he suffered discrimination in education by reason of his caste, the Tribunal held the view that, as he had obtained a diploma in civil engineering, any such discrimination was not sufficiently serious as to constitute persecution for the purposes of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol.

14. The appellant’s further claim was that he had been arrested and mistreated on a number of occasions for reasons of political opinion.  The Tribunal rejected these claims on credibility grounds.  The findings were based on inconsistencies referred to by the Tribunal Member.

15. Finally, the Tribunal found that, in any case, the appellant could safely relocate without difficulty in India.

16. In his application for judicial review to the Federal Magistrates Court the application contained no grounds of review.  Despite this the learned Federal Magistrate sought to examine the matter.  The appellant declined to make any oral submissions.  He did not have an interpreter on that occasion it seems, but no complaint was apparently made about that.  As the appellant was self represented his Honour reviewed the material to satisfy himself that there was no jurisdictional error apparent on the materials before him and was so satisfied that there was no jurisdictional error.

17. I too have examined the matter and I think there is no jurisdictional error apparent in the materials before me.  Thus his Honour’s decision was clearly correct.

18. I may add that it is the position that the appellant had the benefit of advisory assistance from counsel under the then operative pro bono scheme before the hearing before his Honour. 

19. The appeal must be dismissed.  The appellant is to pay the respondent’s costs, assessed in the sum of $3,000.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            31 May 2005

Solicitor for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	25 May 2005
Date of Judgment:	25 May 2005