SZMTD v Minister for Immigration

[2009] FMCA 165

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTD & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 165

MIGRATION – Application for review of RRT decision – where applicants failed to appear – where applicants husband and wife – where each indicated separate claims for protection but wife filled out Form D “application for a member of the family unit” – recommendation for change in practice by the Department.

Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001

First Applicant: SZMTD

Second Applicant: SZMTE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2394 of 2008

Judgment of: Raphael FM

Hearing date: 2 March 2009

Date of Last Submission: 2 March 2009

Delivered at: Sydney

Delivered on: 2 March 2009

REPRESENTATION

For the Applicants: No appearance

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Application dismissed pursuant to Part 13, rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001.

2. Applicants to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2394 of 2008

SZMTD

First Applicant

SZMTE

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter the applicants, who are husband and wife, commenced proceedings in this Court on 15 September 2008 by filing an application under the Migration Act 1958 (Cth).  The application, as is appropriate, was written in English but the applicants indicated that they needed a Mandarin interpreter.  They also filed an affidavit purporting to be by them both but as far as I can see, although I do not speak Mandarin, only signed by one person.  There is no evidence that the affidavit was translated.

2. The parties, or more probably only the male applicant, attended a directions hearing that was held in this Court on 2 October 2008 when he was assisted by a Mandarin interpreter. On that day the matter was set down for hearing today. Unusually, the applicants did not seek to take part in the Minister's Advice Scheme. The applicants did not file any amended application or any further documentation in the proceedings and they were not present in Court at 10.15 am and neither were they present in Court when Mr Reilly sought dismissal of the matter pursuant to Part 13 of the Federal Magistrates Court Rules at 10.40 am. I propose to dismiss this application as requested by Mr Reilly pursuant to Part 13, rule 13.03C(1)(c) of the Federal Magistrates Court Rules. I order that the applicants pay the respondent’s costs assessed in the sum of $4,000.00.

3. But I would like to make a point that I believe is becoming more and more important. The applicants completed Form B, and they completed the form in English.  At [CB 10] there are responses to two questions which the applicants are required to answer, they are:

   “Do you have your own claims to be a refugee?”

4. Both applicants have answered “yes”.  However, in this case only the male applicant completed Form C, the female applicant completed Form D.  Again, both forms were completed in English.  There is then a statement which is made on behalf of both applicants, again in English, signed by both applicants.  The forms contain declarations that are very lengthy and are obliged to be sworn before a Justice of the Peace but interestingly enough there is nothing in the declaration that indicates that people clearly understand and have had translated to them what they have signed although there is one reference to:

   “I have read and understood the information supplied to me in this application.”

5. Like many applicants before this Court, the applicants in this case do not appear to speak English.  They required the assistance of an interpreter.  I do not know who wrote the document in English.  I do not know who wrote the statement.  I do not know whether the statement was ever translated to them so that they could confirm that it was correct.  Sometimes Tribunals ask the applicants whether they had the documents translated to them, they generally say that they did. That does not appear to have been done in this case.

6. Applicants frequently make a number of claims about the insufficiency of the translation and when they change their stories, utilise that insufficiency to seek to persuade delegates and the Tribunal that their later claims were the correct ones.  It seems to me that this is an unsatisfactory way of proceeding.  There is an interpreter's declaration found at [CB 11] annexed to the Form B.  There is no such declaration annexed to the Form C or Form D.

7. In this particular case, as in most of those that I see, the interpreter's declaration is not completed so it is clear that there was no interpreter used.  I have already expressed certain views about what occurs and what appears to be occurring within the Chinese community when unlicensed and unknown “assistants” and “friends” complete these forms for applicants for protection visas.

8. I made a suggestion that the Department takes the matter up with the Chinese community and responsible members of it. There is something else that can be done. That is that the Department can insist that all application forms completed by persons who require interpreters to act for them before a delegate or before the Tribunal must have a declaration signed by an interpreter that the applicants clearly understood the questions asked and had the form translated to them.

9. I would go further. I would suggest that the forms could be printed in the Mandarin language and in other common languages utilised by persons who are claiming asylum and that applicants be asked to fill the form in in their own language and that is then translated by a translator for the benefit of the delegates and the Tribunal.   It seems to me that in this way we can put an end to the continuing complaints by applicants about the quality of the assistance they allegedly received in completing the forms. Judicial officers can then be satisfied that the forms allegedly completed by applicants were actually completed by them and they knew what they were writing. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  6 March 2009