FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2025] FCAFC 71

FEDERAL COURT OF AUSTRALIA

FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 71

Appeal from: FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 397
File number: VID 416 of 2024
Judgment of: MURPHY, CHARLESWORTH, SNADEN JJ
Date of judgment: 21 May 2025
Catchwords: MIGRATION – cancellation of visa on character grounds – appeal from judgment dismissing application for judicial review of Tribunal decision affirming cancellation decision – appellant having no legal training – appellant represented before Tribunal by a non-lawyer – whether Tribunal denied the appellant procedural fairness by failing to explain matters or practice and procedure to the representative – whether Tribunal ought to have counselled the appellant against his choice of representative – whether Tribunal was obliged to ensure the whole of the hearing was interpreted – appeal dismissed.  
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 32, 33, 39

Migration Act 1958 (Cth) ss 474, 500

Cases cited:

FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 397

Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479

Hamod v New South Wales [2011] NSWCA 375

Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482

Kamal v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 106

Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200

Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114

Naisauvou v Minister for Immigration and Multicultural Affairs (1999) 87 FCR 352

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 80
Date of hearing: 12 November 2024
Counsel for the Appellant: Ms E Latif
Solicitor for the Appellant: Carina Ford Immigration Lawyers
Counsel for the First Respondent: Mr N Wood with Ms J Lucas
Solicitor for the First Respondent: HWL Ebsworth Lawyers
Counsel for the Second Respondent: The Second respondent filed a submitting notice

ORDERS

VID 416 of 2024
BETWEEN:

FBLQ

Appellant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

MURPHY, CHARLESWORTH, SNADEN JJ

DATE OF ORDER:

21 MAY 2025

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs, to be taxed if not agreed.

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


REASONS FOR JUDGMENT

THE COURT

  1. The appellant is a citizen of the Philippines.  His wife (Mrs AA) is an Australian citizen.

  2. In 2013 the appellant was granted a Partner visa under the MigrationAct 1958 (Cth). In 2017 (whilst married to Mrs AA), he was convicted of criminal offences including for an offence of attempted rape. By virtue of that offending and the sentences imposed, the appellant’s visa was cancelled on character grounds by a delegate of the then-named Minister for Immigration, Citizenship,…

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Details
AGLC
FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 71
Case
[2025] FCAFC 71
Decision Date

CaseChat Overview and Summary

The appeal in FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs involved the appellant, who was challenging the decision of the Minister for Immigration, Citizenship and Multicultural Affairs to cancel their visa on character grounds. The appellant was represented by a non-lawyer at the Tribunal hearing, which affirmed the cancellation decision. The appellant argued that the Tribunal denied them procedural fairness by failing to explain matters or practice and procedure to their representative and that the Tribunal should have counselled against their choice of representative. The appellant also claimed that the Tribunal was obliged to ensure the whole of the hearing was interpreted. The matter came before the Federal Court of Australia, which dismissed the appeal.

The court was required to determine whether the Tribunal denied the appellant procedural fairness by failing to explain matters or practice and procedure to the representative, whether the Tribunal ought to have counselled the appellant against their choice of representative, and whether the Tribunal was obliged to ensure the whole of the hearing was interpreted. The court also needed to consider the appellant's argument that the Tribunal's failure to interpret Mrs AA's evidence to the appellant constituted a denial of procedural fairness.

The court found that the Tribunal did not deny the appellant procedural fairness by failing to explain matters or practice and procedure to the representative, nor was the Tribunal obliged to counsel the appellant against their choice of representative. The court also found that the Tribunal was not obliged to ensure the whole of the hearing was interpreted. Regarding the appellant's argument that the Tribunal's failure to interpret Mrs AA's evidence to the appellant constituted a denial of procedural fairness, the court found that the note provided by the Minister was insufficient to support this finding, especially given that both the appellant and Mrs AA were silent in their affidavits on a factual question that may reasonably be expected to be within their knowledge. Therefore, the appeal was dismissed.

The Federal Court of Australia dismissed the appeal and ordered the appellant to pay the first respondent's costs, to be taxed if not agreed. Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the first respondent’s costs, to be taxed if not agreed.

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

At the hearing of the appeal, Counsel for the Minister indicated that the Minister would consider a request that the lawyer who appeared for the Minister before the Tribunal provide a note of events that occurred at the Tribunal hearing specifically limited to the interpretation of Mrs AA’s evidence. A note provided after the conclusion of the hearing relevantly stated:2. The Minister instructs as follows:Interpretation while Mrs AA gave evidence2.1.After the appellant’s re-examination, Mrs AA went into the witness box. The appellant and the interpreter went to the back of the hearing room, being a row of seats immediately behind the seats at the bar table. They sat on the left-hand side of the room facing the Tribunal member, behind the seat where Mrs AA had previously been sitting as the representative of the appellant. There were also two guards seated there.2.2.While Mrs AA gave her evidence, Ms Weir was at a lectern in the middle of the bar table facing the Member. Thus, while Mrs AA gave her evidence, the appellant and the interpreter were located behind and to the left of Ms Weir.2.3.Ms Weir does not recall hearing the interpreter translating statements to the appellant during this period.2.4.Subject to what is said in [2.5] below, Ms Weir thinks that, if the interpreter was interpreting, Ms Weir would have heard it, given the proximity of the interpreter and the appellant (about 2 metres away).2.5.However, Ms Weir was focused on her job as the Minister’s legal representative throughout the period that Mrs AA gave evidence, and she is not sure that there were no communications between the appellant and interpreter, or that the interpreter did not interpret anything to the appellant during this period.Interpretation during closing submissions2.6.The appellant was sitting in the same location as described at [2.1] above (with the two guards) while both Mrs AA and Ms Weir gave closing submissions.2.7.While Mrs AA gave closing submissions, Ms Weir was at the bar table on the right-hand side (rather than in the centre as she was while Mrs AA gave evidence).2.8.What is said at [2.3] to [2.5] applies equally to this part of the hearing. Without more, that note is insufficient to support a finding that Mrs AA’s evidence was not interpreted to the appellant. That is especially so given that both the appellant and Mrs AA were silent in their affidavits on a factual question that may reasonably be expected to be within their knowledge. Ground 3 must therefore be rejected. The appeal will be dismissed with costs.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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