SZFMW v MIMA

[2008] HCATrans 138

[2008] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S340 of 2006

B e t w e e n -

SZFMW

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 MARCH 2008, AT 3.55 PM

Copyright in the High Court of Australia

SZFMW appeared in person.

MR J.D. SMITH:   May it please the Court, I appear for the first respondent.  (instructed by Blake Dawson Waldron Lawyers)

ANIS GHANEM, sworn as interpreter:

HEYDON J:   Mr Ghanem, could you tell the applicant we have read the papers that he has filed and the papers filed by the respondent.  Tell him that, please.  Could you ask him if he wishes to make any additional point or wishes to say anything orally in relation to his application for special leave?

SZFMW (through interpreter):   Yes, I do have, your Honour.

HEYDON J:   Very well.  Could you ask him to stand up and ask him to say what it is he wants to say?

SZFMW (through interpreter):   As the applicant or the appellant, I have written something and I plead if the interpreter can read them in English because it has been written in Arabic.

HEYDON J:   Very well.  Are you content with that course?

SZFMW (through interpreter):   Yes, your Honour.

HEYDON J:   If you could read out the document he has handed to you.  It is probably best if you would come to the centre so that it can be recorded properly.

SZFMW (through interpreter):   Your Honour, I am the applicant and I have great hope to satisfy your approval that the Department of Immigration and RRT made a mistake towards me.  I have attended the Tribunal on 11/11/2003 and my counsellor did not attend even though he took from me $10,000.  My problem, it is not a very simple problem as RRT said.  It is the problem of a Muslim…..officer just attacked me or put me in his mind and everything I did mention in that Tribunal is the truth.  What did I suffer in the army indicate on the unfairness towards me and discrimination being acted up on me.  The lawyer did not translate what did I give him in writing and it is in the book, page 25 to page 29, and the translation of it from pages 30 to 33.  I explained what happened with me from page 18 to page 22. 

The female interpreter in the RRT Tribunal very significant because of the rank, the army rank is very important, and because of the Muslim officer I have never been promoted in the army because I started as a soldier and I have the right to be promoted more towards more ranks to a first class soldier after two years, to a corporal after three years, to first‑class corporal after two years and to a sergeant after two years and to first‑class sergeant after three years and also sous‑lieutenant after four years.  I did not have any promotion or even increase on my salary and if the RRT understood this definitely if they could have admitted or recognised that I was a victim of discrimination.

Also, I did submit transcript to the federal magistrate and did not admit it and this transcript indicate to the mistakes being given and also what I have said, what the right thing.  The tapes of the recording, the federal judge took it from me in the second trial.  When I went to the second lawyer he promised me to have the transcript of the RRT and I paid him $5,000.  I found that he did not submit this transcript to the court even though I did pay all the fees for that.

I did mention to the RRT the discrimination I have suffered and what happened then and what is happening today in Lebanon and the death of hundreds of soldiers indicates that if I was in Lebanon I could have met my death.  On the contrary of what the RRT said, what happened with me will never happen to me again, the RRT said.  Pardon me, I am repeating the sentence, your Honour.  On the contrary, what the RRT said that what happened with me will not happen again.

It was necessary that the federal magistrate and the Federal Court to accept the transcript because I did mention all the accusation and also the very, very bad treatment I have received.  I was hoping, your Honours, that the RRT before refusing my application to ask me to explain some points which may consider important before taking its decision and also before taking the decision of refusing my application.  They did not do that. 

Your Honours, I am a person who respect the law and I believe that the federal magistrate did not give me natural justice because he did not accept the transcript of the interview with the RRT, because if he did accept it, he would have been convinced that the mistakes of the interpretation did affect the decision or the mind of the RRT.  The mistakes of interpreting, it is very important.  I plead with you, your Honours, to listen to the tapes and to read the transcript to find exactly what happened with me.

The RRT says in page 12 from its decision that the very bad treatment I have received from being incarcerated and punished and also losing salaries and leave and not being able to receive promotion and did not think this discrimination against me was a result of the act of a Muslim officer because I am a Maronite Catholic Christian and his treatment towards me was very clear that it is discriminatory.

Your Honours, the way RRT thought and looked at the matter is incredible.  May I ask your Honour, with your permission, there is a word - it can mean that the RRT or himself.

HEYDON J:   You check with the applicant what he means.

SZFMW (through interpreter):   The way of the RRT thinking is incredible because they admitted and recognised what happened with me and the way I resign through one of my relatives in the army and also how did I not receive my entitlements after 10 years serving and also I was a victim of discrimination because I am a Maronite under the Muslim officer who wanted to break my head just because I am there and when I faced him, confronted him, about the illegality of the tasks he wanted me to do.  The RRT made a mistake when asked me what will be happening to you if you went back to Lebanon.  I am one of recognised soldiers in the army and the RRT should have asked me questions about what I said and also what did I sign with the first lawyer which is there at pages 23 and 24. 

Your Honours, I am a victim, firstly through the first lawyer - he did not explain my case faithfully and did not also go with me to the RRT.  The second lawyer did not provide transcript about the interview that happened, the proceedings, 11/11/2003.  The federal magistrate, which I do respect, but he did not accept the transcript.  The federal judge, which I do respect too, did not accept the transcript even though he did take the tapes to hear it and tapes are still with him.  The RRT did not understand my case and did not offer me before to explain and also to ask me questions before refusing under 424 section. 

Your Honours, I am a young man, Maronite Christian.  I have been treated badly by this Muslim officer who wanted to break me and also prevent me from being promoted, and I have been incarcerated with no rights and also been deprived from practice my religion freely and they took me to a battle in the frontline in the battle just to get hit and maybe die before anyone else.

I ask you, I plead with you, to understand my case and I have full hope in the good Lord and also the justice of the High Court of Australia and your wisdom.  I say at last I can…..my case.  It is only four points.  The first point is translation, interpreting; secondly, the case of transcript; thirdly, the understanding of the discrimination and fourth is the 424 section which they did not put anything towards me before taking the decision.  Thank you, your Honour.

HEYDON J:   We need not trouble you, Mr Smith.

The applicant was an unsuccessful applicant for a protection visa.  Amongst his complaints was a complaint about mistranslation in the Refugee Review Tribunal of statements about the applicant’s positions and ranks in the Lebanese army and other translation errors.  We agree with the Federal Magistrates Court, Federal Magistrate Smith and Justice Cowdroy that this would not have made a material difference.  We must reject the applicant’s invitation to listen to the relevant tapes. 

However, one question of law disclosed in the applicant’s application for special leave to appeal is a possible breach of section 424A of the Migration Act 1958 (Cth) because of the use made by the Tribunal of the absence of certain information from the applicant’s statement which accompanied his visa application. Until recently, there was a question whether, because of that provision, the Tribunal was obliged to draw such an omission to the applicant’s attention for comment. In SZBYR v The Minister for Immigration and Citizenship [2007] HCA 26, this Court held that even if there be a breach of section 424A, that does not affect a conclusion otherwise reached by the Tribunal that there is no Convention reason disclosed to found the grant of a protection visa. The Tribunal came to such a conclusion in this case.

The application therefore has insufficient prospects of success to justify a grant of special leave and must be refused with costs.

Thank you, Mr Ghanem, for your assistance.

Adjourn the Court to 10.15 on Wednesday, 26 March 2008, in Canberra.

AT 4.15 PM THE MATTER WAS CONCLUDED