SZONX v Minister for Immigration & Anor (No.2)
[2010] FMCA 877
•27 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZONX v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2010] FMCA 877 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – whether the applicant should be granted leave to raise a further ground and give evidence in support. |
| Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231 VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 |
| Applicant: | SZONX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1658 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 27 October 2010 |
| Date of Last Submission: | 27 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2010 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Ms S. Sirtes |
| Solicitors for the Respondent: | Ms K. Hooper, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1658 of 2010
| SZONX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The Applicant seeks leave to amend the grounds of her application to include a complaint that the interpreter at the hearing before the Refugee Review Tribunal (“the Tribunal”) did not understand what she said. When asked what she meant by that complaint she said that, when she was asked questions about Noah, she told this Court that the interpreter did not know about Noah. She provided no other examples or oral particulars.
The Applicant attended a directions hearing before me on 20 August 2010. On that occasion, I explained to the Applicant that the grounds of her application made bare assertions that did not disclose an error capable of review by this Court. I explained to the Applicant the limited role of this Court. The Applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 10 September 2010.
The Applicant was also directed to file and serve any evidence upon which she intended to rely by way of affidavit by 10 September 2010. The directions made clear to the Applicant that if she wished to rely on a transcript of the hearing she would need to have that transcript prepared, verified, filed and served by 10 September 2010. The Applicant was also directed that, if she wished to rely on recordings of the Tribunal hearing, she would need to give notice to the Court and to the First Respondent by 10 September 2010 stating the issue to which any part of the recording was relevant and the approximate duration of the relevant recording. The Applicant was also directed to file and serve written submissions in support of her application. No documents have been filed by or on behalf of the Applicant in accordance with those directions or otherwise.
At the directions hearing, the Applicant elected to participate in the Court’s Legal Panel Advice Scheme. In accordance with that scheme, she received written advice on 6 September 2009 from a panel adviser. In addition, at the directions hearing, I provided to the Applicant the contact details of other legal services providers together with translating and interpreting services in two documents headed in her own language.
The leave that the Applicant seeks is opposed by the First Respondent on the basis that this is the first time such complaint has been raised and that there is no indication on the face of the documents presently before the Court that there was any difficulty encountered at the Tribunal hearing in any substantive way as a result of inadequate interpretation.
Whilst I am conscious of the fact that the Applicant is unrepresented and is appearing for herself, albeit with the assistance of an interpreter, the Applicant has been given a proper opportunity to file and serve evidence in support of her application and to obtain any advice in support of her application.
There is no evidence before this Court to suggest that the decision record is inaccurate or incomplete in any relevant way. In the absence of such evidence I accept as accurate the Tribunal’s decision record to the extent that it summarises exchanges that it had with the Applicant at the hearing. There is no mention in the Tribunal’s decision record of any issue being raised at the hearing about the quality of the interpreter or any difficulty that the Applicant may be having with the interpreter.
The issue for the Court now is whether or not the Applicant should be given a further opportunity to raise a new ground and provide evidence in support of her new complaint about the interpreter at the Tribunal hearing.
In considering the over all interests of justice, I also have regard to the interest of the community in having these administrative decisions finalised. The Applicant’s complaint about the interpreter came very much at the heel of her oral submissions in support of her application. It was made orally in response following at least three invitations given by me to the Applicant as to whether there was anything further she wished to say in support of her application. The only particular that she has given of the difficulty with the interpreter was that she was asked a question about Noah and that the interpreter didn’t know about Noah for some time.
In order to amount to jurisdictional error, the deficiency of interpretation must be of such poor quality that an Applicant is effectively deprived of her right to appear (Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231 at [38] per Kenny J; VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 per Finkelstein J at [27]).
By itself, the Applicant’s allegation would not be sufficient to establish an error of the standard of the nature required, even if made out. In those circumstances, the Court could not be satisfied that the Applicant had been denied a hearing because of the conduct of the interpreter.
In the circumstances, I am not satisfied that the complaint has any or any reasonable prospects of success on the evidence and material presently before the Court. As stated above, the Applicant has been given an opportunity to file and serve an amended application and evidence in support. As stated above, she has had the opportunity of legal advice from the panel advisor and the contact details of other legal services providers.
Further, the Applicant has not proffered any explanation as to why she has only this morning raised that complaint.
On the evidence and material before this Court and having regard to the paucity of particulars to support the Applicant’s new complaint, I am satisfied the Applicant has had every reasonable opportunity to file an amended application and evidence in support.
Accordingly, the application for leave to raise the further ground is refused.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 11 November 2010
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