FEDERAL COURT OF AUSTRALIA

SZMFJ v Minister for Immigration and Citizenship [2008] FCA 1815

Federal Court Rules O 80

Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 (2002) 122 FCR 150 cited

Applicant VCAD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1005 cited

VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 cited

SZMFJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1369 of 2008

GRAY J

19 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be listed for hearing in the appellate sittings of the Court beginning in February 2009.

2.         Subject to any order of the judge hearing the appeal, the appellant have leave to file and serve an amended notice of appeal on or before 9 January 2009.

3.         The costs of the adjournment be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     Listed for hearing before me today is an appeal in this matter.  The appeal is from a judgment of the Federal Magistrates Court, dismissing an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (“the Minister”), refusing to grant to the appellant a protection visa.

2                     Through circumstances beyond the control of the Court, it has been impossible to provide an appropriate interpreter for the hearing of the appeal today.  The interpreter who had been booked became unavailable and it appears that there is no other interpreter who could be substituted.  Attempts were made to adjust the time at which the hearing of the appeal was listed.  Partly because of unavailability of the interpreter and partly because of unavailability of counsel for the first respondent at other times, the appeal was listed at 11.30 this morning.  It turns out that the interpreter is unavailable.

3                     It is clear to me from my attempts to engage with the appellant that he requires an interpreter.  His English is very limited.  As I understand it, he speaks the Hebrew language.  Counsel for the first respondent has informed me that there is only one qualified interpreter in the Hebrew language in Sydney.  This scarcity has resulted in the difficulty that now faces the Court.

4                     For the purposes of hearing the appeal, I have read both the reasons for judgment of the federal magistrate and the reasons for decision of the Tribunal.  Although the Tribunal member in his reasons for decision cited some authorities in relation to the manner in which claims for persecution by reason of conscientious objection to military service should be dealt with, it is by no means clear that the Tribunal applied the law as expounded in those judgments.

5                     I take the law to be set out in my judgment in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 (2002) 122 FCR 150 at [18]-[28].  That judgment was subsequently followed at first instance in Applicant VCAD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1005.  On appeal, the Full Court, at the very least, cited without disapproval the judgment in Erduran.  See VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [13] in the judgment of Gray J and at [33]-[34] in the joint judgment of Sundberg and North JJ.

6                     The reasons for decision of the Tribunal in the present case are somewhat difficult to construe.  There must be some considerable doubt as to whether the Tribunal addressed the two questions: whether conscientious objection to military service itself could amount to political opinion; and whether the differential application of a law, otherwise of general application, to persons with a particular political opinion could give rise to a well-founded fear of persecution for a Convention reason.

7                     For these reasons it seemed to me that the appellant ought to have the benefit of legal representation, that his appeal should be adjourned.  Subject to whatever order the judge ultimately hearing the appeal might make, the appellant ought to have the opportunity to file an amended notice of appeal raising squarely any ground of the kind referred to above.  I propose to order in those terms.  I indicate that I am prepared to grant the appellant a certificate pursuant to O 80 of the Federal Court Rules, for representation generally on the appeal.

8                     The Court orders that:

1.         The appeal be listed for hearing in the appellate sittings of the Court beginning in February 2009.

2.         Subject to any order of the judge hearing the appeal, the appellant have leave to file and serve an amended notice of appeal on or before 9 January 2009.

3.         The costs of the adjournment be reserved.

Associate:

Dated:         1 December 2008