SZSIU v Minister For Immigration and Anor (No.2)

[2013] FCCA 653

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSIU v MINISTER FOR IMMIGRATION & ANOR (NO.2) [2013] FCCA 653

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Application by applicant to rely on further ground – application for an adjournment to file evidence in support of a new ground – no utility – applications refused.

Applicant: SZSIU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2881 of 2012

Judgment of: Judge Emmett

Hearing date: 19 June 2013

Date of Last Submission: 19 June 2013

Delivered at: Sydney

Delivered on: 19 June 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitors for the Applicant: Mr A. Marcus
(Australian Government Solicitors)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2881 of 2012

SZSIU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant makes a complaint for the first time this morning about the quality of the interpretation at the hearing.  I understand by that complaint that he seeks leave to rely on that matter as a further ground. I explained to the applicant that the Court would need to be persuaded that there was utility in granting that leave.

2. The applicant acknowledged that he had not made a complaint to the Refugee Review Tribunal (“RRT”) about the interpretation, and he said that he did not do so because he did not know the rules. 

3. The applicant then sought leave to provide evidence in support of his complaint about the quality of the interpretation. 

4. The first respondent objected to leave being given to the applicant, either to rely on the new ground or for an adjournment to obtain further evidence. In support, the first respondents solicitor, Mr Markus, submitted that there was no utility and that the applicant had already been given an opportunity to file evidence.

5. On 7 March 2013, the applicant was directed, to file an amended application giving complete particulars of each ground of review relied upon. The applicant was also directed to file and serve by way of affidavit any additional evidence to be relied upon, including any transcript of the RRT hearing, by 19 April 2013. The Court’s Order for directions informed the applicant that any transcript of an RRT hearing must be verified by way of affidavit of the translator, and filed and served by 19 April 2013.  The directions also stated that if the applicant wished to rely on a recording of the RRT hearing, then he must give notice to the Court and the first respondent by 19 April 2013, 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 his application to this Court for a judicial review of the RRT’s decision given on 28 November 2012. No document of the nature referred to was filed by the applicant, either in accordance with the Court’s directions or otherwise. 

6. At the commencement of the hearing this morning, the applicant’s grounds of review were interpreted for him and he was invited to make submissions in support.

7. He made his complaint about the quality of interpretation in support of the last particular of his grounds of review which, otherwise, did not identify such an error.

8. The applicant said that the interpreter did not understand what he was saying.  He had earlier told the Court that he did not speak English.  When I asked the applicant how he knew that the interpreter was not interpreting what he was saying, if he did not speak English, he told the Court that there were other people at the RRT hearing who told him later about the mistakes. The first respondent’s solicitor, Mr Markus, then referred the Court to a copy of the RRT hearing record. The hearing record makes clear that only the applicant and his migration agent were present at the hearing.

9. Mr Markus also referred the Court to a letter dated 4 October 2012, which postdates the hearing before the RRT, but was provided prior to the RRT’s decision.  That letter was from the applicant’s migration agent and addresses various that arose at the hearing.  There is no mention in that letter of any complaint about the quality of the interpretation, and the decision record does not suggest that any complaint was made either by the applicant or his migration agent during the course of the hearing. I note that the interpreter provided to the hearing was a qualified level 3 Arabic interpreter.

10. I accept the submission of the solicitor of the first respondent that the applicant himself, in light of the fact that he does not speak English, is not in a position to give any evidence upon which the Court could rely upon various interpretation mistakes.  The applicant’s complaint seems to arise from an assertion by him that the RRT member did not properly state his name. That is not sufficient to persuade the Court that the interests of justice would be served in granting the applicant an opportunity to serve evidence in proper form. 

11. The applicant has not persuaded the Court that there is any genuine complaint upon which he relies or that his complaint about the quality of interpretation has any reasonable prospect of success. Further, as stated above, the applicant has had since 7 March 2013 this year to file and serve any such evidence and to particularise any such complaint. 

12. In the circumstances, I am not satisfied that the interests of justice would be served in providing a further opportunity to the applicant to provide evidence of this late made complaint about the quality of interpretation. 

13. Accordingly, to the extent that the applicant seeks leave to rely on a further ground and for an adjournment to provide further evidence in support of that ground, both are refused.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  19 June 2013