FEDERAL COURT OF AUSTRALIA

VOAQ v Minister for Immigration & Multicultural Affairs

[2006] FCA 1165

VOAQ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR

VID 558 OF 2006

RARES J

10 AUGUST 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appellant file and serve any affidavits upon which he proposes to rely, as fresh evidence or evidence in support of his application for leave to appeal made orally today, on or before 24 August 2006.

2.                  Upon filing of that evidence:

(a) the Minister shall file and serve any written submissions as to the course to be followed on or before 31 August 2006; and

(b) the matter be stood over to 4 September 2006.

3. In the event that order (1) is not complied with, the following orders will take effect on 25 August 2006:

(a) The appeal be struck out as incompetent.

(b) Leave to appeal against the decision of the Federal Magistrates Court of 4 May 2006 is refused.

(c) The appellant to pay the respondent's costs of the appeal, including the application made orally for leave to appeal fixed in the sum of $800.

4. Grants leave to the respondent to file in Court the affidavit of Tiffany Veschetti affirmed 8 August 2006.

5. Grants liberty to any party to apply on 24 hours notice.

6. Orders that the Refugee Review Tribunal be joined as the second respondent.

7. Notes the undertaking of the second respondent by its solicitor, Mr Mosby, to file an appearance submitting to all orders the Court might make except as to costs.

8. Mr Mustafa be granted leave to appear on behalf of the appellant.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     The Minister has moved for an order that the notice of appeal filed by the appellant on 23 May 2006 be dismissed as incompetent on the basis that the decision of Phipps FM in VOAQ v Minister for Immigration [2006] FMCA 1025 was an interlocutory decision. In that judgment, his Honour, recited the fact that the appellant had applied for many adjournments of an application to set aside the order made by Bryant CFM on 27 May 2004 dismissing his application for review in default of appearance by him on that occasion. The application for review was filed on 3 November 2005 and had been adjourned on a number of occasions.

2                     The appellant has been represented by an accountant, Mr Mustafa, who has clearly and helpfully set out what he understands to be the claim that the appellant wishes to make and the reasons for delay. In essence the real case, as I understand it, which the appellant wished to put as the basis of the review of the decision of the Refugee Review Tribunal which refused him a protection visa, was that the interpreter who translated for him at the hearing before the Tribunal spoke Turkish as the modern version of that language spoken on the mainland of Asia Minor. The appellant is apparently a Turkish Cypriot and Mr Mustafa explained that the dialect of Turkish spoken on Cyprus and spoken by the appellant is old Ottoman with mixtures of Greek from the other major ethnic group in that country.

3                     For a long time the appellant has said he has been trying to get a correct translation of the evidence he actually gave to the Tribunal which he claims was misinterpreted and therefore misled the Tribunal as to his true answers and true claims. Mr Mustafa has informed me that something in the order of two and a half hours of three hours of the hearing before the Tribunal has now been translated by an expert translator based in a University. I have explained to him the evidentiary difficulties which the claim that the appellant wishes to agitate will require to be addressed at any hearing.

4                     It seems to me that if the position now is that the substantial part of the hearing has been translated into English in writing, it would be possible for the appellant to prepare an affidavit or affidavits identifying by reference to, at least what is set out in the written reasons for decision of the Tribunal, parts of the Tribunal's understanding of the evidence from what was translated to it, and compare those to the translation that the expert has prepared, at least in part to this point, so as to demonstrate there is a tangible basis for arguing that there were material mistranslations. From this it would then be possible to show the argument that the true case and claims of the appellant were not before the Tribunal or considered by it so that it did not perform the review function required by s 414 of the Migration Act 1958 (Cth).

5                     In essence such material would be fresh evidence which would be sought to be led on an appeal in this Court from the decision of the Federal Magistrate. The Minister has not had any opportunity to consider whether or not, if such evidence were led, there would be objections to it. I do not foreclose by what I propose to do any opportunity of the Minister to take any proper objections to that course. However it seems to me that it might be appropriate to consider appointing someone under Order 80 to represent the appellant at the point where there really is able to be demonstrated some substance in the argument which the appellant wishes to put. In considering the grant of leave to appeal, I would need to consider whether there was a real injustice that might have been done to the appellant by not allowing his case to go forward and be heard in the Federal Magistrates Court.

6                     I think that, having regard to the very lengthy delays that have already occurred, the cost and expense which the Minister and the community has been put to by those delays, and the wasted time of courts in dealing with adjournment applications that have in the result achieved no positive result, I should give one final opportunity to the appellant to seek to adduce fresh evidence in the present proceedings for the purposes of demonstrating that there really is a case that is arguable and might well be tried.

7                     I am satisfied that the decision of Phipps FM given on 4 May 2006 was an interlocutory decision. An order is an interlocutory order when it stays or dismisses an application or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the Court or does not disclose a reasonable cause of action: Re Luck (2003) 203 ALR 1 at [4] per McHugh ACJ, Gummow and Heydon JJ. By a parity of reasoning, a refusal to set aside an order dismissing proceedings for want of appearance is an interlocutory order. It does not finally determine rights and can be revisited, at least where such a decision is made by a superior court of record.

8                     I am not aware of what the particular rules of the Federal Magistrates Court are in this regard but I am satisfied that the nature of the order made by Phipps FM is substantively interlocutory and that the document currently filed purporting to be a notice of appeal is incompetent. It was explained by Mr Mustafa that when he and the appellant attended the Registry of the Court to file documents they were told that a notice of appeal was the appropriate document rather than any other one. That understanding apparently was confirmed to Mr Mustafa after he had been shown a copy of the Minister's letter indicating the reasons for the current motion.

9                     If there is substance in the ultimate argument which the appellant wishes to raise that I have identified above, I think that he would be done a substantial injustice if he were not ever able to put such a case. Whether or not he would be able to show that there was sufficient doubt or that by reason of the admission of fresh evidence on appeal, I ought to grant leave to appeal, is a matter for another day on an assessment of whatever material the appellant may wish to produce in response to the orders I am proposing to make. I think I should afford the appellant one more opportunity in light of the matters that I have recited to demonstrate that there is something in his case.

10                  The Minister has asked that I make a self executing order for dismissal in the event that the material is not filed within two weeks. Having regard to the prior history of delays and failures to meet deadlines which the appellant has occasioned in the past, I am of the opinion that the request by the Minister is appropriate. The orders I propose to make are:

THE COURT ORDERS THAT:

(1) The appellant file and serve any affidavits upon which he proposes to rely, as fresh evidence or evidence in support of his application for leave to appeal made orally today, on or before 24 August 2006.

(2) Upon filing of that evidence:

(a) the Minister shall file and serve any written submissions as to the course to be followed on or before 31 August 2006; and

(b) the matter be stood over to 4 September 2006.

(3) In the event that order (1) is not complied with, the following orders will take effect on 25 August 2006:

(a) The appeal be struck out as incompetent.

(b) Leave to appeal against the decision of the Federal Magistrates Court of 4 May 2006 is refused.

(c) The appellant to pay the respondent's costs of the appeal, including the application made orally for leave to appeal fixed in the sum of $800.

(4) Grants leave to the respondent to file in Court the affidavit of Tiffany Veschetti affirmed 8 August 2006.

(5) Grants liberty to any party to apply on 24 hours notice.

(6) Orders that the Refugee Review Tribunal be joined as the second respondent.

(7) Notes the undertaking of the second respondent by its solicitor, Mr Mosby, to file an appearance submitting to all orders the Court might make except as to costs.

Associate:

Dated: 30 August 2006