SAAK v Minister for Immigration & Multicultural Affairs [2002] FCAFC 86; [2002] FCA 367

SAAK v Minister for Immigration & Multicultural Affairs [2002] FCAFC 86 SAAK v Minister for Immigration & Multicultural Affairs [2002] FCA 367

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation. * All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. * All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

SAAK v Minister for Immigration & Multicultural Affairs [2002] FCA 367

MIGRATION – application for review of a decision of the Refugee Review Tribunal refusing to grant a protection visa – where claim of persecution rejected due to failure to raise claim at initial interview – whether Tribunal is required to expressly state that it is exercising caution in relying on initial interview evidence. PRACTICE & PROCEDURE – application for review – form of application required under Order 54B rule 2 of the Federal Court Rules – whether application is incompetent where the required form is not completed in English – where Court has discretion to relieve for non-compliance – discretion generally exercisable to allow non-English speaking applicant to file form in a language other than English Migration Act 1958 (Cth), ss 366C, 427(7), 476(1)(b), (c), (e) Federal Court Rules, O 54B r 2, O 1 r 8 MIMA v Yusuf (2001) 180 ALR 1; [2001] HCA 30, considered Sujeendran Sivalingam v MIMA (Unreported, Federal Court of Australia, 17 September 1998, O'Connor, Branson & Marshall JJ), considered Abebe v Minister for Immigration and Multicultural Affairs (1999)197 CLR 510, considered W168/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 538, considered Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611, considered Filios v Morland (1963) 80 WN (NSW) 501, referred to Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458, referred to Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414, referred to R v Johnson (1987) 25 A Crim R 433, considered Augustin v Sava (1984) 735 F 2d 32, considered Professor James Hathaway, The Law of Refugee Status (1991) Juliet Cohen, 'Questions of Credibility: Omissions, Discrepancies and Errors of Recall in the Testimony of Asylum Seekers (2001) 13(3) International Journal of Refugee Law 293 Neal P Pfeiffer, 'Credibility Findings in INS Asylum Adjudications: A Realistic Assessment' (1983) 23 Texas International Law Journal 139 at 154 Savitri Taylor,'Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions' (1994) 13(1) University of Tasmania Law Review 43 D Anker & R Rubin, 'The Right to Adequate Translation in Asylum Proceedings' (1986) 9 Immigration Law Journal 10 SAAK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S 189 OF 2001 NORTH, GOLDBERG & HELY JJ 28 MARCH 2002 MELBOURNE