SZDNZ v Minister for Immigration - [2004] FMCA 839

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDNZ v MINISTER FOR IMMIGRATION

[2004] FMCA 839

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for protection visa – review of decision of Refugee Review Tribunal affirming decision of delegate of the Minister not to grant a protection visa to the applicant.

PRACTICE AND PROCEDURE – Refusal of adjournment – disqualification for bias.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424A; 425; 427

R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551
Minister for Immigration v Singh (2000) 98 FCR 469
Minister for Immigration v SGLB [2004] HCA 32
NACG v Minister for Immigration [2003] FCA 748
Minister for Immigration v SBAN [2002] FCAFC 431

Applicant:

SZDNZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1394 of 2004

Delivered on:

10 November 2004

Delivered at:

Sydney

Hearing date:

10 November 2004

Judgment of:

Scarlett FM

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Ms Francois

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $4,850.00.
The Application is removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1394 of 2004

SZDNZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant has asked the Court to vacate the hearing date today and adjourn the matter to a date in the middle of the year 2005. He says that he is not able to afford a lawyer today but hopes to have the money to have a lawyer appear for him on the next occasion.
He works in a fruit shop and earns about $500 per week. His wife and his child are still in India. His mother is still in India. She is over 70 years old. All three of these people depend on him for their support. He apparently sends money back to India on a regular basis. He has a prepared a notice of motion seeking the orders to vacate the hearing date and adjourn the matter until the middle of next year. He has also prepared an affidavit in which he sets out the facts that he relies on.
He does not speak much English. He is able to read a little bit of English but not much. He has the assistance of an interpreter today.
His documents were prepared on 29 October 2004. He had the assistance of a friend to prepare those documents. He says that the friend prepared the documents and explained what was in the affidavit to him. The affidavit does not show that it was read or translated to him by someone else before he signed it. It does not comply with Rule 15.27 of the Federal Magistrate Court Rules. Even so, I am prepared to accept the affidavit for the purpose of this application.
I note that there is an obvious error in paragraph six of the affidavit. In paragraph six the applicant says that he has four dependents, including his aged parents who are both over 70 years old. The applicant has told the Court today that only his mother is still alive. He says that his father died about ten years ago. I have some doubts about how much of an explanation he was given about what was in his affidavit before he signed it. If the contents of paragraph six had been read to him, he would surely have noticed the mistake. As paragraph six refers to both his parents, the applicant would have known that only his mother were still alive. I have some doubts therefore that the affidavit was explained to him with a great deal of care at all.
I have considered the application for an adjournment. The applicant commenced these proceedings on 12 May 2004. He had assistance from a friend in preparing his documentation. He filed an amended application on 29 September. Quite clearly, he had assistance from someone on that occasion. The applicant has said that he hopes to have the money to afford a lawyer if this matter is adjourned until the middle of next year. He has not made any inquiries about obtaining a lawyer, nor has he inquired about how much a lawyer's fee would cost him.
There is no right to be legally represented before the Federal Magistrates Court. I accept the fact that an applicant is usually under a disadvantage if the applicant does not have legal advice. These matters are very technical and it is hard for a layperson to represent themself without legal advice. I accept that this would place the applicant at a disadvantage. Nevertheless, I am not satisfied that in all the circumstances, the fact that the applicant does not have a lawyer, is a ground for an adjournment of the application.
The application before the Court is an application for review of a decision made by the Refugee Review Tribunal handed down on 20 April 2004. The decision of the Refugee Review Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant seeks a review of that decision before the Court today. The applicant has, today, by notice of motion, applied for an adjournment of the proceedings until the middle of 2005.
The basis for his application was that he sought to raise money to pay for legal representation. I refused that application this morning and I have ordered a transcript of the reasons of that decision.
A matter that arose this morning concerned the fact that I became aware that I knew the identity of the member of the Refugee Review Tribunal whose decision is under review. I indicated that the person concerned had been a student at the University of Sydney Law School at the same time as myself. I further told the Court that I had not seen the person concerned for over 20 years.
Counsel for the respondent, Ms Francois, indicated that her client did not object to my hearing the matter. She indicated that there was no ongoing relationship with the person concerned and that, in any case, the person was not a member of my family nor was there any suggestion that the relationship is other than that of an acquaintance. The applicant opposed my hearing of the application. He claimed that there was a prima facie case of a conflict of interest. I rejected that application and proceeded to hear the substantive application.
On the question of judicial bias, whether it is apprehended bias or actual bias, the authority to which I refer is a decision of the High Court of Australia. That decision is R v Watson ex parte Armstrong. The citation for that decision is 1976 Vol 136 CLR 248. The decision is also referred to in 9 ALR 551.
The test for disqualification for bias is whether a fair-minded person present at the hearing could reasonably have suspected that the trial judge had prejudged the matter. In the circumstances I was not satisfied that a fair-minded person present at the hearing could have formed that reasonable suspicion.
In the substantive application, the facts are that the applicant is a citizen of India who comes from the Tamil Nadu. He is aged 36 and he speaks Tamil as his native language. He was not legally represented in the proceedings but was assisted by an interpreter. According to the decision of the Refugee Review Tribunal at page 93 of the Court Book, he has been employed as a clerk and in management.
The applicant arrived in Australia on 28 July 2003. He entered this country lawfully on an Indian passport with a temporary business visa.

The applicant’s claim for protection under the Convention

I asked the applicant to explain to me what he meant by that particular claim. Again, he took exception to the propriety of the questions asked by the Tribunal member. He said that he had come to Australia with a mental trauma and that the questions asked of him made that trauma worse. In my view that does not establish a constructive failure to exercise a jurisdiction.
I look at the findings and reasons of the Tribunal on pages 104 through to 107 of the Court Book. The fact is that the Tribunal member did not accept the applicant's evidence on a number of significant points. In particular, at page 105, in the second last paragraph she said, quote:
I do not accept that the police searched for the applicant or had any adverse interest in him following the meeting. I do not accept that he went into hiding after July 2002 and that he lived at the homes of 10 to 12 relatives at this time. His evidence of his whereabouts during this time was vague and unsatisfactory. After he was pressed on his whereabouts, he said he could not give exact details.
In the last paragraph on page 105 going to page 106, again the Tribunal member expressed doubt as to the veracity of the applicant's evidence. She said:
When pressed to give details of his travel, accommodation, employment and financial support he was vague and generalised in his answers. He could not describe the area in which he lived or worked and did not display the type of knowledge which I would have expected him to have gained through actual experience.
The fact is that the Tribunal member did not accept the veracity of the applicant's evidence on a number of important points.
An application for review is not a re-hearing on the merits of the case. It is not what the law calls, a hearing de novo. It is not open to the Court to substitute its own assessment of the evidence for the assessment of the Tribunal. In this case in particular there is no ground for even considering such a substitution. There is no reviewable error. The application is dismissed.
There is an application for costs. The applicant opposes an order, pointing out that he is in indigent circumstances. He does not have the funds to pay the costs and he seeks a break down of the sum of $7500 solicitor client costs which is claimed.
In my view, this is a matter where costs follow the event. The applicant has been wholly unsuccessful in his application. It is not a matter where financial circumstances of a party play a large part in the Court's assessment of whether or not costs should be paid. I am not of the view, however, that costs should be paid on a solicitor/client basis but on a party and party basis. I propose to assess costs according to Schedule 1 of the Federal Magistrates Court Rules and I propose to set an amount which is within the range contemplated by those rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 15 November 2004