SZQRL v Minister for Immigration and Citizenship
[2012] FCA 811
•2 August 2012
FEDERAL COURT OF AUSTRALIA
SZQRL v Minister for Immigration & Citizenship [2012] FCA 811
Citation: SZQRL v Minister for Immigration & Citizenship [2012] FCA 811 Appeal from: SZQRL v Minister for Immigration & Citizenship [2012] FMCA 89 Parties: SZQRL v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 616 of 2012 Judge: KATZMANN J Date of judgment: 2 August 2012 Catchwords: MIGRATION – Application for extension of time and leave to appeal from interlocutory judgment of federal magistrate – applicant sought constitutional writs in relation to decision of refugee review tribunal – federal magistrate dismissed the application under r 44.12 of the Federal Magistrates Court Rules 2001 – unexplained delay in filing application – whether any error on the part of the federal magistrate shown – alleged error of tribunal based on incorrect translations by interpreter at tribunal hearing – interpretation error not raised before federal magistrate Legislation: Federal Court of Australia Act 1976 (Cth), s 24(1A)
Federal Court Rules 2011 (Cth), r 35.14
Federal Magistrates Court Rules 2001 (Cth), r 44.12
Migration Act 1958 (Cth), ss 425, 474, 476(1)Cases cited: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Parker v The Queen [2002] FCAFC 133
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476
SZQRL v Minister for Immigrationand Citizenship [2012] FMCA 89
VUAX v Minister for Immigration and Multicultural and Indigenous AffairsDate of hearing: 1 August 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 25 Solicitor for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms K Hooper of DLA Piper Solicitor for the Second Respondent: The second respondent filed a submitting appearance
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 616 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQRL
ApplicantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
2 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 616 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQRL
ApplicantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE:
2 AUGUST 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant claims to fear persecution on political and religious grounds in his country of nationality, Lebanon. In particular, he professes to fear death at the hands of a Salafist group and a militia group both. He applied to the Minister for Immigration and Citizenship for a protection visa but the Minister’s delegate refused the application. He sought a review of the delegate’s decision in the Refugee Review Tribunal but the tribunal found that he had fabricated his claims for the purpose of obtaining a visa and so affirmed the delegate’s decision. He then applied to the Federal Magistrates Court for constitutional writs to quash the tribunal’s decision and have it reconsider his application. But on 13 February 2012 Driver FM dismissed his application under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“FMCR”) on the ground that he was not satisfied that the applicant had raised an arguable case for the relief claimed: SZQRL v Minister for Immigrationand Citizenship [2012] FMCA 89.
The applicant wants to appeal from the federal magistrate’s judgment. He requires leave to appeal, however, as the federal magistrate’s decision was interlocutory (FMCR r 44.12(2)): Federal Court of Australia Act 1976 (Cth), s 24(1A). An application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order made or on or before a date fixed for the purpose by the Court from which leave to appeal is sought: Federal Court Rules 2011 (Cth) (“FCR”), r 35.13(a). Yet, no application was filed within this period.
Consequently, on 1 May 2012 the applicant applied for an extension of time to seek leave to appeal and for leave to appeal. Rule 35.14 of the FCR requires that an application for an extension of time be accompanied, amongst other things, by a draft notice of appeal and an affidavit stating briefly, but specifically, the facts on which the application relies and why the application for leave to appeal was not filed within time.
The application is supported by two affidavits sworn on 14 March 2012 (but not filed until 1 May 2012) and 16 July 2012. Neither of them complies with r 35.14. The application contains a single ground:
The learned Federal Magistrate was extremely lenient and compassionate but failed to take into consideration the grounds in my amended application dated 9th November 2011.
A draft notice of appeal, however, adds a second ground in these terms:
I believe my case shall be reviewed due to misunderstanding of interpretations as not being able to speak proper English and things interpreted incorrectly.
The grounds in the amended application filed in the Federal Magistrates Court and dated 9 November 2011 read as follows (without alteration except where indicated):
The Tribunal fell into jurisdictional error in making a finding which was not open on the evidence before it.
Particulars
a. On 17 May 2010 the applicant lodged a Protection (Class XA) visa (“PV”) application. In that application he claimed “if I Go BACK To lebanon I have to Go BACK to waR TO KiLL. I [the applicant] don’t like to kill or wAR”. CB 18
b. The applicant did not get the opportunity to further explain this claim at an interview with the Delegate. The 4 February 2011 letter which invited the applicant to contact the Delegate to arrange an interview time was incorrectly sent to [the wrong address]. CB 33 and 39. The Tribunal accepted this: CB 117[56].
c. On 1 April 2011 the applicant lodged an application with the Tribunal for review of the Delegate’s Decision: CB 55. The application was accompanied by a hand written statement signed by the applicant. In that statement the applicant claimed, inter alia, that on return to Lebanon militia(s) will want to “arm” him and if he refuses he will “face death”: CB 70.
d. The Tribunal found that the applicant’s claim to fear harm because of a militia wishing him to join then was not raised in the applicant’s original PV application: CB116[52]-CB117[53].
e. This finding was not open on the evidence before the Tribunal.
Annexed to the second affidavit is a transcript of the proceeding before the tribunal and other material, including a copy of an identity card, which was not before the federal magistrate (or the tribunal), and country information, not all of which was in evidence below.
The applicant’s written submissions were contained in a statement dated 16 July 2012 annexed to his second affidavit. In it he complained that he did not get an opportunity to further explain his claim at an interview with the delegate. He also stated that his brother-in-law completed his visa application but had “no grammar skills in which the application was misinterpreted and taken into the wrong context and did not contain the full details of [his] situation”. He then pleaded his case for protection.
There is no evidence to suggest that the Minister has been prejudiced by the delay in making the application. Nevertheless, for the following reasons the application should be dismissed.
First, mere absence of prejudice does not require that the application be allowed. Applicants are expected to provide an acceptable explanation for the delay; legislated limits are not to be ignored: Parker v The Queen [2002] FCAFC 133 at [6]. Here, the affidavits were entirely silent. Until the matter was specifically raised with him the applicant offered no explanation from the bar table either. At that point he said he was told he had 21 days and on the 19th or 20th day his wife “went and they told her that we were late”. Somewhat inconsistently he then said that they sent the application on the last day he was allowed to send it.
Assuming the truth of what was put, it is not an acceptable explanation. 14 days after the judgment was pronounced and when the application for leave to appeal should have been filed was 27 February 2012. 21 days after judgment was pronounced was 5 March 2012. Yet, the application was not filed until 1 May 2012. The first affidavit was apparently prepared on 12 March 2012 and sworn on 14 March 2012. There was no explanation for the delay between the date the affidavit was sworn and the date the application was filed. Nor was there any explanation for why the applicant waited to file the application until what he thought was the last day.
Secondly, and in any event, I am not satisfied that there is any reason to doubt the correctness of the federal magistrate’s decision. Yet, on appeal, error on the part of the court below must be shown: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [21] and [25] per Allsop J (Drummond and Mansfield JJ agreeing). The applicant advanced no argument to suggest that the federal magistrate fell into error. On the contrary, he submitted:
The previous judge heard my story and told me he can't decide whether a yes or a no… he was just looking for a jurisdictional error. The problem is I didn't have enough time from the Department of Immigration. This is my problem.
All the applicant’s submissions went to the merits of his visa application. But only the tribunal may inquire into the merits. The Federal Magistrates Court could review the decision of the tribunal but, as the federal magistrate obviously made clear, its review was limited to determining whether the tribunal had made a jurisdictional error: Migration Act 1958 (Cth), ss 474, 476(1), Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476. In his written submission the applicant complained that the federal magistrate did not wish to investigate his situation further, but he was not entitled to.
There is absolutely no substance to the allegation that the federal magistrate failed to take into account the grounds raised in the amended application. His Honour dealt with that issue at some length in paragraphs [12]–[22] of his reasons.
Thirdly, I accept that an applicant who needs an interpreter in order to give evidence in the tribunal and does not have one does not have the opportunity to give evidence that s 425(1)(a) of the Migration Act requires and a tribunal that does not give an effective opportunity to such an applicant lacks jurisdiction to conduct or continue the hearing or fails to observe the procedures the Act lays down: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 per Kenny J (“Perera”) at [21], [37] and the cases referred to there. Either way, the tribunal would fall into jurisdictional error. Where, as here, an applicant is provided with an interpreter, the tribunal will only fall into jurisdictional error if the interpretation was so incompetent that it effectively prevented the applicant from giving evidence: Perera [38]–[39].
But the alleged error arising from the interpretation of the evidence was not raised before the federal magistrate. The Full Court observed in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]–[48] that leave is required to argue a ground of appeal not raised before the primary judge and leave will only be granted if it is expedient in the interests of justice to do so. Where there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.
Here, there was no explanation for the failure to take the point in the Federal Magistrates Court, no expert evidence to support it, no evidence about the qualifications of the interpreter or even the languages in which he or she was proficient, and, although incompetence in interpretation may be proved by reference to the transcript of the tribunal alone (Perera at [39]), such incompetence is not apparent from the transcript in this case. The applicant made no complaint that he could not understand the interpreter (either at or after the hearing). On two occasions, however, the applicant’s fiancée, who sat in on the hearing, drew the tribunal’s attention to problems she perceived in the translation. At p 11 of the transcript she is recorded as saying:
Sorry Member can I speak, the interpretation isn’t a hundred percent.
At p 21 she interrupted the evidence to ask that the applicant slow down so that the interpreter “can get everything he is saying”. She asserted:
Not everything is being translated.
The evidence appears to indicate that she was born in Australia but there is no evidence to indicate her level of comprehension of Arabic (the language spoken by the applicant).
In Perera at [41] Kenny J said that the factors that might lead a reviewing court to conclude that the transcript of a tribunal hearing discloses such incompetence in the interpretation that, in consequence, the applicant for refugee status can be said to have been effectively prevented from giving his evidence include:
the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter: cf Gonzales v Zurbrick at 936-937; United States v Urena (10th Cir 1994) 27 F 3d 1487 at 1492; Acewicz v Immigration and Naturalization Service at 1062.
In this case the answers recorded in the transcript are responsive and coherent and there is no apparent confusion. There are some inconsistent answers but I am not persuaded that there is any reason to attribute them to any incompetence on the part of the interpreter. They do not arise at either of the two points the fiancée raised her concerns.
In any event, not every departure from an acceptable standard of interpretation will prevent an applicant for a protection visa from giving evidence before the tribunal and so amount to jurisdictional error. The departure must relate to a matter of significance for the claim or for the tribunal’s decision. See Perera at [45]. Here, the applicant did not indicate what evidence was misinterpreted or how any mistakes may have affected the decision. He did not therefore raise an arguable case of any error based on interpreting mistakes, let alone one going to jurisdiction.
In the circumstances, leave to argue this ground would almost certainly be refused and, even if leave were granted, the ground would fail.
For all these reasons, there is no good reason to extend time and I would refuse leave to appeal, even if the application had been filed within time.
I will therefore order that the application be dismissed and the applicant pay the Minister’s costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 2 August 2012
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