Case: VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158
Outcome: followed
Tribunal ignored the risk factors that are conventional related the couple has to live in the Indian community after accepting the Sunni Muslim laws to avoid harassment, threats, kidnapping fear of rape from the hooligans, thugs and fear of getting killed . 8 The difference between the " main application " and the Amended Application was explained by the First Appellant this morning as being: (i) the fact that the Amended Application focussed attention more upon her husband's case than her own; and (ii) the fact that the " main application " raised as a discrete ground a failure to provide an interpreter and the absence of any such ground in the Amended Application . 9 A difficulty confronting the First Appellant is the statement by the learned Magistrate in her Honour's reasons that " [t]he Applicant wife confirmed that she relied upon an amended application filed on 27 February 2007 ". In the absence of any evidence upon which any contrary conclusion should be reached, this statement of the Federal Magistrate should be accepted. Indeed, even in the absence of any such statement, it would otherwise have been assumed that consideration would have been given by the Federal Magistrates Court to the content of what purported to be an " Amended Application ". 10 The First Appellant before this Court asserted, however, that the Federal Magistrate presented her with no choice other than to proceed upon the basis of her Amended Application. She asserts, as it is understood, that the Federal Magistrate indicated that in the absence of a transcript as to what occurred before the Tribunal, the " main application " could not succeed or be further entertained. No objection was rightly taken by the Respondent Minister to these statements made by the First Appellant being regarded as evidence as to what transpired before the Federal Magistrates Court. If accepted, the statements of the First Appellant do not challenge the statement made by the learned Magistrate; those statements merely provide an explanation as to why she " confirmed " her reliance upon the Amended Application . 11 The primary submission of the Respondent Minister was that there was no reason to not accept as conclusive the decision made by the Appellants as to the case they sought to advance before the Federal Magistrates Court. That submission is accepted. 12 In accepting the submission, however, it should be noted that it is of fundamental and obvious importance that there is certainty as to the case sought to be advanced for resolution. Unrepresented litigants present special difficulties both by reason of their being unrepresented and by reason of considerable uncertainty as to the effect of what are frequently badly drafted grounds of review or appeal and, it is suspected, inadequate or poor or erroneous advice. Difficulties being confronted may include a lack of familiarity with Court procedures and understandable stress and tension occasioned by attendance in court and the importance of the case being advanced. A lack of certainty at the outset may only occasion subsequent confusion or be productive of unnecessary later argument. 13 The acceptance of the Minister's primary submission necessarily dictates that the Notice of Appeal to this Court, as presently drafted, should be dismissed. The application as made to the Federal Magistrates Court in reliance upon the " amended application " was the application then in fact relied upon and then resolved. There has been no erroneous " dropping " of any application. Even had a ground of appeal been drafted which attempted to impugn the conclusions reached in respect to the challenge made by the " amended application ", any such attempt, it is considered, would also have been rejected. The conclusions of the Federal Magistrate were: [9] The Applicant wife made no meaningful submission in support of any of the paragraphs referred to in her amended application as disclosing any error capable of review by this Court. It is plain that the amended application is a disagreement with the findings and conclusions of the Tribunal and therefore seeks merits review which this Court cannot undertake. ... [16] The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. [17] The decision of the Tribunal is not affected by jurisdictional error and is therefore a private clause decision. Accordingly, pursuant to s.474 of the Migration Act 1958 (Cth) this Court has no further jurisdiction to interfere. These conclusions reached by the Federal Magistrate in respect to the " amended application " were conclusions open to her Honour and disclose no error. 14 Separate consideration, however, has been given to the oral explanation provided to this Court this morning by the First Appellant as to the manner in which the Federal Magistrates Court proceeded to resolve the Amended Application and not the " main application ". The " main application ", it has been concluded, was not advanced before the Federal Magistrate for resolution. But, with one possible exception, it is not considered that any different conclusion would have been reached even had it been pursued. Paragraphs (1) to (4) of the " main application " and ground (6) clearly invited the Federal Magistrate to impermissibly revisit the factual merits of the decision entrusted to the Tribunal. And, in any event, those grounds were largely embraced by the issues in fact resolved by the Federal Magistrate. A reading of the decision of the Tribunal discloses no " prejudice " or " bias ". A reading of the decision discloses nothing other than a careful and detailed consideration of the evidence and submissions raised for resolution. 15 The one exception is the contention that the alleged failure to provide an interpreter in some manner vitiated the proceedings before the Tribunal. A failure to provide an interpreter potentially could have been framed in terms of a denial of procedural fairness. The Respondent Minister did not oppose a course whereby that contention was to be now resolved by this Court. On appeal this Court can entertain a ground not previously relied upon. It can do so, in summary form, where it is " expedient in the interests of justice to do so ": VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ. 16 Any possible prejudice to the First Appellant occasioned by the Federal Magistrates Court not resolving, for whatever reason, the contention as to the failure to provide an interpreter could be addressed by allowing the First Appellant to now raise a ground of appeal in the form of that previously set forth in her " main application ", namely a ground that the decision of the Tribunal was vitiated by a: Fail[ure] to provide an interpreter who understood her language and continued with the second interview even after the Applicant complained to the Member that she had difficulties in understanding and clearly answering to, the Member's questions through the interpreter. That application was made orally by the First Appellant. 17 The application to amend, however, is rejected for either of at least two reasons. First, it is considered that the ground is without substance. The reasons for decision of the Tribunal record: CLAIMS AND EVIDENCE The Tribunal has before it the Department's file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources. The applicants appeared before the Tribunal as now constituted on 12 May 2006 to give evidence and present arguments. An Urdu-speaking interpreter was present. However the Tribunal adjourned the hearing because that interpreter's language abilities were inadequate. The hearing resumed later that day with another interpreter. Unfortunately, that interpreter also proved to be inadequate. The hearing was then re-scheduled to, and was completed on, 31 May 2006. [The First Appellant] expressed no objection to the new interpreter and the Tribunal was satisfied that his professional skills were of the required standard to enable the hearing to be conducted. This account by the Tribunal would indicate that any prejudice asserted by the First Appellant is without substance.