Case: SZLVI v Minister for Immigration [2008] FMCA 1206
Outcome: cited
On 29 August 2008, the Federal Magistrates Court dismissed an application seeking to review the decision of the Tribunal: SZLVI v Minister for Immigration [2008] FMCA 1206. The Appellant now appeals to this Court. 4 The Appellant appeared before this Court unrepresented, although he did have the benefit of an interpreter. He first appeared on 26 November 2008. But on that occasion it emerged -- perhaps surprisingly -- that he had not read either the decision of the Federal Magistrates Court or his Notice of Appeal . The Notice of Appeal was apparently prepared by a migration agent. Serious questions necessarily arise in circumstances where a migration agent has -- at least on the account given by the present Appellant -- neither informed him as to why he lost before the Federal Magistrates Court, nor the grounds upon which the decision of the Federal Magistrate may be challenged on appeal. How an appellant can make an informed decision and give instructions as to whether or not he wishes to appeal in the absence of at least minimal explanation being provided to him, remained unexplained. A decision to invoke the appellate jurisdiction of this Court cannot be entrusted to migration agents alone and without instructions. The difficulties confronting unrepresented litigants who do not speak English are not to be compounded by a failure to keep them informed or explain to them the steps being taken in their own applications for a Protection Visa. Such fundamental difficulties are noted so that the Respondent Minister or his Department may take such steps as they consider appropriate. 5 For the purposes of the present appeal, the difficulties initially confronting the Appellant were addressed by adjourning the appeal until 28 November 2008 in order to ensure that the Federal Magistrate's decision and the Notice of Appeal could be translated. On 28 November 2008, the Appellant again appeared with an interpreter and made oral submissions. 18 The final Ground of Appeal must also be rejected. The reasons for decision of the Federal Magistrate discloses that he reviewed the reasons for decision of the Refugee Review Tribunal and the procedure it had followed. He referred to the inconsistencies as found by the Tribunal in the now Appellant's account and considered the terms of the letter written to the now Appellant explaining what were perceived to be inconsistencies and the significance that the Tribunal may have attached to those inconsistencies. Indeed, the Federal Magistrate stated in conclusion that he considered there was " an obligation on the Court to independently consider whether argument based on material before the Court leads to a jurisdictional error ": [2008] FMCA 1206 at [24] . That question was answered in the negative. 19 No reason emerges from the reasons for decision of the Federal Magistrate to conclude that he did not " reasonably " consider the application before him. 20 No reference may be found expressly in the reasons of the Federal Magistrate which refers to the risk to which the now Appellant would be exposed if he were to be returned to China. In the absence of any submissions being advanced in respect to that risk, and there apparently were none, the failure to address a submission or an aspect of the evidence does not expose error. Moreover, the Federal Magistrate referred to the findings of the Tribunal as to credibility. That was a sufficient basis in itself for a rejection of the application by the Federal Magistrates Court. The reference to " they " in the final Ground of Appeal is unclear. If it is a reference to the Tribunal, the Tribunal did in fact refer to the risk asserted by the now Appellant if he was to return to China; if it is a reference to the Federal Magistrates Court, the failure to refer to the risk exposes no appellable error.