SZIJV v Minister for Immigration

[2007] FMCA 2032

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIJV v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2032

MIGRATION – Application to review decision of the Refugee Review Tribunal – adjournment application opposed by first respondent where first respondent failed to comply with order in relation to provision of Tribunal hearing tapes to applicant by a specified date.

Migration Act 1958 (Cth), ss.422B, 425

SZFDE v Minister for Immigration & Citizenship (2007) 81 ALJR 1401

Applicant: SZIJV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 540 of 2006

Judgment of: Barnes FM

Hearing date: 22 November 2007

Delivered at: Sydney

Delivered on: 22 November 2007

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms. Clegg

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the matter be adjourned for hearing before me at 2.15 pm on Tuesday 18 March 2008.

2. That the applicant file and serve any amended application and any further affidavit evidence, including any transcript of the Tribunal hearing, on or before Tuesday 19 February 2008.

3. That the respondent file and serve any affidavit evidence in reply on or before 4 March 2008.

4. That the applicant file and serve written submissions on or before Monday 10 March 2008.

5. That the respondent file and serve any further written submissions on or before Friday 14 March 2008.

6. Liberty to either party to apply on two days' notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 540 of 2006

SZIJV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. In this matter the applicant for review of a decision of the Refugee Review Tribunal seeks an adjournment of the hearing on the basis that the first respondent did not provide him with tapes of the Tribunal hearing in a timely manner as ordered and hence he is not in a position to proceed today.

2. The Court has a discretion to grant an adjournment. I have had regard to the convenience and interests of the parties and the interests of justice.

3. This matter was adjourned on the date on which it was first set down for hearing because an issue was raised in the applicant’s oral submissions about the accuracy of translation by the interpreter in the Tribunal hearing. The applicant provided an explanation as to why the issue was raised for the first time at the hearing. There was some elaboration of the manner in which it was believed there may have been a misinterpretation (based on a reading of the Tribunal decision by the applicant's partner and discussion with the applicant shortly before the hearing).

4. The hearing was adjourned and I ordered that the first respondent's solicitor provide the applicant with a copy of the Tribunal hearing tapes on or before 28 August 2007. It was intended that the applicant should have sufficient time between then and the hearing date of 22 November 2007 to file and serve an amended application and any further affidavit evidence, including any transcript of the Tribunal hearing. It is relevant to note that the concern expressed by the applicant was with the translation of Hebrew to English and vice versa at that hearing and not simply the rendition in English of what was said at the hearing.

5. There was a delay by the first respondent in providing the hearing tape. It is not disputed that, as the applicant said in a letter sent to the Court on 12 November seeking an adjournment, there was a difficulty about the address to which letters were sent and the first hearing tape, which was not received until 16 October, was of poor quality. Another copy was sent but was not received by the applicant until 9 November 2007. The applicant sought an adjournment promptly after receipt of that hearing tape.

6. Counsel for the first respondent relies on the fact that subsequently, on 19 November 2007, the first respondent filed an English language transcript of the Tribunal hearing. A copy was served on the applicant by letter sent by courier on 19 November 2007. However, this transcript does not address the issue of the correctness of translation either from Hebrew to English or English to Hebrew.

7. It was submitted for the first respondent that even if a “minor” interpretation difficulty was established, the Tribunal decision would not be shown to be affected by jurisdictional error, the Tribunal having understood the applicant's claims and applied the law correctly.

8. Such a submission in effect seeks determination of this case in the context of an adjournment application. However I have had regard to the fact that the concern the applicant expresses about the standard of interpretation raises an issue about the Tribunal’s compliance with s.425 of the Migration Act 1958 (Cth), which, in light of s.422B, incorporates notions of procedural fairness in the context of the Migration Act. (see SZFDE v Minister for Immigration & Citizenship (2007) 81 ALJR 1401 at [32]).

9. In such circumstances, where issue is taken not simply with the English language transcript and where the tapes and indeed the English language transcript were provided too late for the applicant to have the time to subsequently obtain his own transcript incorporating a translation of Hebrew to English and vice versa, I am not persuaded that it would be futile to allow a further adjournment as contended for the first respondent.

10. I have considered the transcript filed by the first respondent. The transcript is not such that I could definitely say that it would be futile for there to be an adjournment and that there could not be a jurisdictional error as is contended. This is particularly so in light of the scope of s.425 and recent Federal Court interpretations of the Tribunal’s obligations in relation to the standard of interpretation in the context of s.425. It is not such that it can clearly be said that there were no difficulties whatsoever in the hearing. Rather, the transcript in English is not inconsistent with what were said to be the difficulties of translation. The applicant should have the opportunity to file evidence in relation to these claims.

11. I am mindful also of the nature of these proceedings and the interests of justice. No detriment to the Minister in terms of a further adjournment has been identified that could not be addressed by a costs order if appropriate. In fact no costs order in favour of the Minister would be appropriate in circumstances where, albeit that it may have been through inadvertence, the tapes were not provided as ordered or in time for the applicant to put on evidence which he clearly wishes to put on.

12. Accordingly, I propose to grant the adjournment sought by the applicant and make further directions to progress this matter.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  12 December 2007