SZLWD v Minister for Immigration and Anor (No.2)
[2008] FMCA 921
•2 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLWD v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2008] FMCA 921 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – whether the applicant should have leave to file further submissions and raise a new complaint after the hearing was completed. |
| Applicant: | SZLWD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 29 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 July 2008 |
| Date of Last Submission: | 2 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2008 |
REPRESENTATION
| Applicant appeared in person assisted by an Arabic interpreter |
| Solicitors for the Respondent: | Mr P. Snell, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 29 of 2008
| SZLWD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This matter was heard before me on 16 June 2008 at which time the hearing was concluded and judgment reserved. The Refugee Review Tribunal’s decision record stated that it had considered, inter alia, “the advisor’s submissions and the documents given to the tribunal in support of the claims.” However, there were no such submissions or documents either in the Green book, marked Exhibit 1R, or referred to by any other documents in the Green book. In the circumstances, I made a direction that the first respondent notify the Court and the applicant in writing to confirm that the Green book contained all relevant documents and submissions from the applicant's adviser and, otherwise, to file and serve any further relevant documents.
On 25 June 2008 a letter was received from the solicitor to the first respondent and copied to the applicant that a search had disclosed that there were no other documents that were not otherwise provided in Exhibit 1R.
On 24 June 2008, a document was received by the registry of this Court from the applicant entitled "Applicant's Outline of Submissions" and was marked Exhibit 2A. The document marked Exhibit 2A was not accepted for filing on the basis that the hearing had concluded. Paragraph 3 of Exhibit 2A stated as follows:
“I was not able to understand the interpreter properly but still feel that the many factual errors made by the Tribunal hopefully would lead Her Honour to accept that the Tribunal misunderstood the question it had to decide and that is in itself an error of law.”
This was the applicant’s first complaint about the interpreter. I relisted the matter prior to giving judgment in order to hear from the applicant why leave should be granted at this stage to allow him to raise the ground foreshadowed in paragraph 3 of Exhibit 2A.
The granting of leave was opposed by the first respondent.
There is no such complaint about the quality of the interpretation made by the applicant in the initiating application filed by him on 8 January 2008. Further, on 6 March 2008, the applicant appeared at a directions hearing before me at which time he was given leave to file and serve an amended application and any additional evidence, including a transcript of the Refugee Review Tribunal hearing. No other document was filed by or on behalf of the applicant in accordance with those directions or otherwise. The applicant received free legal advice on 11 April 2008 pursuant to the New South Wales Refugee Review Tribunal Legal Advice Scheme.
The applicant agreed that, in the circumstances, he had three opportunities to make the complaint to which he refers in paragraph 3 of Exhibit 2A.
The Court has asked the applicant on at least three occasions today to explain why it is that the complaint was not made on any prior occasion. The applicant's only response is that it was his mistake and he is only human.
Having regard to the fact that the hearing of the application to this Court had concluded; that there was no leave granted to the applicant and no formal leave sought by the applicant to raise a ground prior to the conclusion of this hearing; and, having regard to the unsatisfactory nature of the applicant's explanation as to why this matter has never been raised by him before, leave to the applicant to file and rely upon Exhibit 2A is refused.
To the extent that the applicant seeks leave to re-open his case and seeks leave to file an amended application particularising such a ground, such leave is refused for the same reasons as above.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 22 July 2008
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