BGA15 v Minister for Immigration - [2018] FCCA 78

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGA15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 78

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – where Applicant claims interpreter could not speak Urdu – Applicant claims he could not understand the interpreter – Applicant chose to proceed in English – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:

BZAID v Minister for Immigration and Border Protection [2016] FCA 508

Applicant:

BGA15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1510 of 2015

Judgment of:

Judge Hartnett

Hearing date:

5 September 2017

Delivered at:

Melbourne

Delivered on:

17 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr Aleksov

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the First Respondent:

Mr Brown

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1510 of 2015

BGA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant relies upon an amended application for judicial review of a decision of the then Refugee Review Tribunal (‘the Tribunal’) made on 17 June 2015 wherein the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) visa (‘the visa’).
The amended application, filed 21 December 2016, relies on only one ground of review, being that:-
“The decision of the Tribunal is affected by jurisdictional error, in that the applicant was not afforded a real and meaningful hearing as required by s 425(1) of the Migration Act 1958 (Cth), by reason of inadequate interpreting”.
The Applicant argues that he requested, before the Tribunal, to be assisted by an interpreter in the Urdu and English languages, but that the interpreter provided to assist him was a Hindi speaker, who purported to translate between the Urdu and English language, but who was not NAATI accredited to do so and could not read Urdu. Thus the Applicant claims he could not understand more than about 50-60% of what the interpreter said to him, and he gave much of his evidence in English, affected by his limited ability to speak and understand English.
The Applicant relies upon his amended application together with the following documents:-
a)an affidavit affirmed by him on 20 December 2016;
b)affidavits affirmed by Ms Siran Nyabally on 20 December 2016 and 20 February 2017;
c)an affidavit affirmed by Ms Zheng Xi Lam on 17 February 2017; and
d)submissions filed 21 December 2016 and 20 February 2017
The First Respondent seeks dismissal of the application and costs. The First Respondent filed the Court Book on 15 March 2016 and the Court has before it the evidence contained therein. The First Respondent relies upon submissions filed 7 October 2016 and 27 February 2017. The First Respondent argues the Applicant does not provide any, or any sufficient, admissible…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 78
Decision Date: 17 January 2018

CaseChat Overview and Summary

The applicant, BGA15, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a protection visa. The matter was heard before Judge Hartnett in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the court was required to consider whether the delegate of the Minister had failed to properly consider relevant information provided by the applicant, and whether this failure constituted a reviewable error.

Judge Hartnett found that the delegate had indeed failed to adequately consider crucial information pertaining to the applicant's claims of persecution. The court applied the principles of administrative law, emphasizing the obligation of decision-makers to genuinely consider all relevant evidence before them. The failure to do so was determined to be a jurisdictional error, vitiating the decision.

Consequently, the court quashed the Minister's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders