Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190
Outcome: cited
In oral submissions in respect of this ground, the male Appellant referred to a finding on the part of the Tribunal to allow him to identify his fear. That though did not amount to a particularisation of the "information" which ought to have been put to him and his wife. In dealing with s 424A , the learned Federal Magistrate made reference to what was said by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at para 18. It was there observed that "information": "does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc". 18 Regard to that passage and to the Tribunal's reasons shows that there was no occasion for the Tribunal before making its decision to send to the Appellants a notice identifying information so as to comply with s 424A. 19 There were other grounds advanced in oral submissions. Reference was made to confusion on the part of the male Appellant in the proceeding before the Tribunal and to translation difficulties. As the Federal Magistrate rightly apprehended s 427 of the Migration Act required the Tribunal to provide an interpreter when a visa applicant was unable to give evidence without one. The learned Magistrate at para 32 of his reasons cites authority pertinent in that regard. His Honour also appreciated that an absence of adequate interpretation of proceedings might yield a violation of s 425 of the Migration Act in that the hearing conducted by the Tribunal would not be "real and meaningful." Again, at para 32 of his Honour's reasons, pertinent authority for this proposition is cited. 20 As the learned Magistrate rightly apprehended however, to make out such a challenge very particular evidence is needed. None was offered by the Appellants in the proceedings before the Federal Magistrate. And there was nothing before me which would in any way have engendered a consideration of whether fresh evidence on such a subject could, or should, be allowed to be advanced on the hearing of the appeal. 21 There was also reference before me and it seems before the Federal Magistrate, to the nature of the hearing opportunity which was extended to the Appellants by the Tribunal. That opportunity in the end took the form of a hearing via video link from the police station at Griffith. That opportunity had been extended by the Tribunal after the male Appellant had signified to the Tribunal a difficulty based on illness in attending in person at Sydney. The appeal book contains in it a note by an officer of the Tribunal prior to the video link hearing to ask whether the male Appellant was attending the hearing tomorrow. According to the note he confirmed that he would be attending. There is nothing in that note, or in the Tribunal's reasons, to indicate that either when that contact was made, or at the hearing itself, any difficulty in relation to the Appellant's wife's attendance based on a fear of being present at a police station was put forward. Nor, it should be stated, is there any reference in the Tribunal's reasons of any complaint being voiced about the quality of interpretation which was offered at the hearing. Instead, in terms of evidence, one is left to look to the Tribunal's reasons, which do not on their face disclose any difficulty being noted either in respect of the attendance of the female Appellant or in translation. Section 425 of the Migration Act certainly requires when it is sought the extension to a visa applicant of a real and meaningful hearing. On the evidence, and I emphasise on the evidence, this is what the Tribunal did in this case. 22 In short then, whether one approaches this matter by reference to the formal grounds of appeal or other matters of complaint which emerged in the course of oral and written submissions on behalf of the Appellants, there is no merit in the challenge made to the decision of the Federal Magistrates Court. The appeal must therefore be dismissed. 23 The orders that I make formally are: 1. The appeal is dismissed. 2. The Appellants are to pay the First Respondent's costs of and incidental to the appeal which are fixed in the amount of $2300. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 14 August 2008 Counsel for the Appellants: The Appellant appeared in person Solicitor for the Respondents: Sparke Helmore Date of Hearing: 6 August 2008 Date of Judgment: 6 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1203.html