Bga15 v Minister for Immigration and Border Protection (No 2)

Case [2018] FCA 1589

FEDERAL COURT OF AUSTRALIA

BGA15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 1589

Appeal from: BGA15 v Minister for Immigration & Anor [2018] FCCA 78
File number: VID 96 of 2018
Judge: CHARLESWORTH  J
Date of judgment: 23 October 2018
Catchwords: MIGRATION – appeal from judgment dismissing application for judicial review of migration decision – whether applicant for review denied a meaningful hearing because of inadequate interpretation – applicant electing to conduct hearing in English rather than use interpreter provided by Tribunal – no admissible evidence of misinterpretation – applicant’s election to continue in English based on legal advice – applicant assured Tribunal he was comfortable proceeding in that way – whether applicant disadvantaged because of lack of English proficiency – affidavit containing interpretations from Urdu to English inadmissible – no appealable error demonstrated
Legislation: Migration Act 1958 (Cth) ss 36, 65, 422B, 425, 427, 474, 476 Div 4, Pt 7
Cases cited:

BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Date of hearing: 11 May, 8 June 2018
Date of last submissions: 28 May 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 54
Counsel for the Appellant: Mr J Williams
Counsel for the First Respondent: Mr B Petrie
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice

ORDERS

VID 96 of 2018
BETWEEN:

BGA15

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

CHARLESWORTH  J

DATE OF ORDER:

23 OCTOBER 2018

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

CHARLESWORTH J:

  1. The appellant is a national of Pakistan.  He appeals from a judgment of the Federal Circuit Court of Australia (FCCA) dismissing his application for judicial review of a decision of the formerly named Refugee Review Tribunal:  BGA15 v Minister for Immigration & Anor [2018] FCCA 78. The Tribunal affirmed a decision of a delegate of the now-named Minister for Home Affairs not to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth).

  2. For the reasons given below, the appeal should be dismissed.

    THE VISA CRITERIA

  3. To qualify for the grant of the visa it was necessary that the Minister be satisfied that (among other things), the appellant satisfied one of the alternative criteria prescribed in s 36(2)(a) of the Act (Refugee Criterion) and s 36(2)(aa) of the Act (Complementary Protection Criterion).

  4. The Refugee Criterion would be fulfilled if the Minister was satisfied that the appellant is a person to whom Australia owes obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by…

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AGLC
Bga15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 1589
Case
[2018] FCA 1589
Decision Date

CaseChat Overview and Summary

The appellant, Bga15, sought judicial review of a decision by the Minister for Immigration and Border Protection to cancel his visa. The dispute centred on whether the appellant was denied a meaningful hearing due to inadequate interpretation services. The appellant had elected to conduct the hearing in English rather than using the interpreter provided by the Tribunal. The Federal Court was tasked with determining whether the appellant's decision to proceed in English, based on legal advice, resulted in him being disadvantaged due to a lack of English proficiency, and whether the appellant's claims of misinterpretation were substantiated.

The court examined whether the appellant was prejudiced by the absence of an interpreter and whether there was any evidence of misinterpretation. It noted that the appellant had been given multiple opportunities to clarify his claims and respond to the Tribunal's concerns, and that the Tribunal found the appellant's evidence to be vague, implausible, and inconsistent. The court found no admissible evidence that the appellant was misinformed or misunderstood during the hearing. The appellant had been assured by the Tribunal that he was comfortable proceeding in English, and the court accepted that the appellant's decision to forgo the interpreter was based on legal advice.

Based on the evidence presented, the court concluded that the appellant was not disadvantaged by the lack of an interpreter. The appellant had been provided with an interpreter but chose not to use them. The affidavit containing interpretations from Urdu to English was deemed inadmissible. The court found no appealable error in the Tribunal's decision, and therefore dismissed the appeal.

The final orders of the court were to dismiss the appeal, affirming the decision of the Tribunal. The Federal Court's decision underscores the importance of clear communication and the responsibility of the applicant to ensure they understand the proceedings, particularly when choosing not to use provided interpretation services.

Orders

Orders of the court

1. The appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In support of his application for the visa, the appellant claimed to fear persecution and serious harm if returned to Pakistan by reason of:(1)his religious views, having converted from Sunni to Shia Islam in around 2010;(2)his status as an engineering student or an educated person; and(3)his would-be status as a failed asylum seeker returning to Pakistan from a Western Country.THE TRIBUNAL’S DECISION The appellant was invited to appear before the Tribunal and present arguments. In his response to that invitation, the appellant indicated that he wished to give evidence through an interpreter in the Urdu language. In support of his claims, the appellant told the Tribunal that he had been attacked on two occasions by people he believed were associated with the Taliban. He claimed the attacks occurred because of his religious views. He also claimed that there had been a bomb blast near his college which, he said, was the act of the Taliban and Wahabis directed toward educated people. He claimed that he had argued about religion with people who were against Shia Muslims. He said that his eldest brother had shunned, hit and verbally abused him as a result of his religious conversion and his having spent time in a Western country. In its written reasons for affirming the delegate’s decision, the Tribunal said (at [101]) that it found several key aspects of the appellant’s claims to be:… vague and lacking in clarity, implausible and containing omissions and inconsistencies. The applicant was given several opportunities during the hearing to clarify his evidence and respond to the tribunal’s concerns. For reasons set out below, the tribunal did not find his evidence persuasive or credible. The Tribunal rejected the appellant’s assertions that he was disturbed, confused and emotional when talking about his faith and did not accept there was any reason why any such emotional responses might affect his ability to participate in the hearing. It was not satisfied that the “significant deficiencies” in the appellant’s evidence could be explained by nervousness, confusion, or by the appellant feeling disturbed, depressed or emotional. The Tribunal was “satisfied on the evidence before it that the applicant was able to meaningfully participate in his hearing”. The Tribunal then proceeded to address, and reject, each of appellant’s claims. The Tribunal did not accept as credible the appellant’s claim that he had converted to the Shia faith. The Tribunal said that the appellant had given confusing, vague and contradictory evidence regarding his knowledge and practice of Shia Islam, and regarding his alleged arguments with those who were against Shia Muslims. Significant to this finding was that the appellant initially said in a statutory declaration that he feared harm because he was a Sunni Muslim with moderate religious views and Shia friends. Although the Tribunal accepted that one alleged attack on the appellant may have occurred, it concluded that the attack appeared to be a criminal act unconnected with the appellant’s alleged religious views.

Ratio Decidendi

Legal Principle Established

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