SZBRO v Minister for Immigration
[2005] FMCA 1378
•23 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBRO v MINISTER FOR IMMIGRATION | [2005] FMCA 1378 |
| MIGRATION – Practice & Procedure – whether to allow an amendment to add a ground of review. |
| Migration Act 1958, ss.422B, 424A |
| SAAP v Minister for Immigration [2005] HCA 24 |
| Applicant: | SZBRO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2200 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 August 2005 |
| Date of Last Submission: | 23 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience Immigration, Lawyers |
| Counsel for the Respondent: | Mr J Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application to add a ground of review granted.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2200 of 2003
| SZBRO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These proceedings came before me for hearing on 15 August 2005. Both parties were represented. The applicant had put forward a large number of grounds on which he has alleged the Tribunal had fallen into jurisdictional error. By the time he came to make submissions at the hearing a number of those grounds had been deleted but during the course of the hearing one matter seemed to assume some considerable importance. The Tribunal had made a finding in the following form:
“It appears that the contents of the DFAT reports are now well-known in the Iranian Christian community. The applicant in this case was aware of the reports prior to the hearing. I have been told in other cases that the Assembly of God Church in Australia is in contact with the Assembly of God Church in Tehran. In my view, if the DFAT reports were incorrect or misleading it would have been open to the Assembly of God Church in Tehran - having been made aware of the situation by the Church in Australia - to take this up with the Australian Embassy. This could be done without the church putting anything in writing. I am satisfied that if this had been done the Australian Embassy would have passed on the information. The fact that no such information has been provided strongly suggests that the leadership of the Assembly of God Church in Tehran accepts that the DFAT reports are correct. In the circumstances, I prefer the DFAT reports to the information provided by the applicant in his latest statutory declaration.”
Mr Dobbie submitted that this information had not been provided to the applicant and had not been discussed with him. Mr Potts who appears on behalf of the respondents agreed that if that was the case there would appear to be a prima facie breach of the obligation to provide an applicant with natural justice that was still available to the applicant as his proceedings in the Tribunal had been commenced prior to the commencement of s.422B of the Migration Act 1958 (Cth).
I adjourned the matter in order that this question be further investigated by the parties listening to the tapes and, if necessary, producing a transcript. That has now been done.
The applicant maintains that these matters were not put to him. The respondent maintains that they were. It would therefore be necessary for me to conclude the case either by a further hearing or by consideration of written submissions based upon the transcript.
The transcript has revealed more, according to the applicant. In particular the transcript is alleged to reveal that the Tribunal told the applicant that it personally knew the DFAT officer who had obtained information from the source in the church in Tehran relating to proselytising Christians and had personally discussed with that officer how the information was obtained.
The applicant says that this information is of considerable importance because it appears to indicate that the Tribunal failed to provide the applicant with a notice under s.424A as is now required following the decision of the High Court in SAAP v Minister for Immigration [2005] HCA 24. The applicant also argues that a remark of this type indicates a perception of bias. He wishes to re-amend his application and argue these points.
The Minister resists the application. She argues through Mr Potts that the applicant has at all times been represented and that these matters should have been raised before. He says that the case was adjourned part heard solely to deal with the point concerning the information about what the relationship was between the church in Australia and the church in Tehran and that these additional matters should not be debated.
I am prepared to allow the amendments. I do so for these reasons. First and foremost it should never be forgotten what these cases are about. Whatever views the Tribunal may hold, whatever views I may hold and whatever views any other court may hold, the applicant claims that his life is in danger if he is returned to Iran. If he is a person to whom Australia may owe protection obligations then those obligations should be enforced by the court. They should not be allowed to slip away because his indigence, his unfamiliarity with the language, his ignorance of the law or his misunderstanding of advice given prevented him from properly instructing those who now seek to give him assistance.
Second, there is no disadvantage to the respondent by my taking this course of action. The complaint made is in fact associated with the matter upon which I have already agreed to consider. It will not take much longer to be dealt with and there seems to me to be no pressing issue of costs or of convenience that would weigh against the possible restriction of this applicant's freedom.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
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