FEDERAL COURT OF AUSTRALIA
Minister for Home Affairs v CAK16 [2019] FCA 322
Appeal from: CAK16 v Minister for Immigration and Border Protection & Anor [2018] FCCA 2670 File number: QUD 723 of 2018 Judge: RANGIAH J Date of judgment: 8 March 2019 Catchwords: MIGRATION – appeal from judgment of Federal Circuit Court of Australia – whether appellant denied procedural fairness in hearing before Tribunal – standard of interpreting required – onus of proof – irregularities in interpretation of evidence– appeal dismissed Legislation: Evidence Act 1995 (Cth) s 140
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 360(1), 425, 425(1) and 427
Cases cited: BZAID v Minister for Immigration and Board Protection (2016) 242 FCR 310
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168
SZJBD v Minister for Immigration (2009) 179 FCR 109
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
SZSEI v Minister for Immigration and Border Protection [2014] FCA 465
Date of hearing: 25 February 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 70 Counsel for the Appellant: Mr J Byrnes Solicitor for the Appellant: Sparke Helmore Counsel for the Respondents: Mr M Brady Solicitor for the Respondents: Hopgood Ganim ORDERS
QUD 723 of 2018 BETWEEN: MINISTER FOR HOME AFFAIRS
Appellant
AND: CAK16
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
8 MARCH 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
The appellant, the Minister for Home Affairs (the Minister) appeals from a judgment of the Federal Circuit Court of Australia delivered on 19 September 2018.
The Administrative Appeals Tribunal (the Tribunal) had affirmed a decision of a delegate of the Minister refusing the first respondent (the respondent) a Protection (Class XA) Visa. The primary judge quashed the Tribunal’s decision and ordered that the matter be remitted to the Tribunal for rehearing.
There were two issues before the primary judge. The first was the respondent’s contention that the Tribunal’s decision was affected by a fraud on the Tribunal by a third party. The second was an issue raised by the primary judge concerning the adequacy of the interpretation of the respondent’s evidence before the Tribunal.
The primary judge quashed the Tribunal’s decision on the basis that defects and irregularities in interpretation meant that the Tribunal had not provided the respondent with a fair hearing. In view of that conclusion,…
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- Case
- [2019] FCA 322
- Decision Date
CaseChat Overview and Summary
The central legal issues in the case were whether the respondent was denied procedural fairness due to the interpreter's inability to accurately convey his responses, and if so, whether this constituted a jurisdictional error warranting the Tribunal's decision to be set aside. The Court considered the onus of proof on the applicant to demonstrate jurisdictional error and whether the respondent's substantial deprivation of a fair hearing constituted such an error.
The Court found that the respondent's claim of procedural unfairness due to the interpreter's errors was substantiated. The significant and persistent issues with the interpretation of the respondent's evidence were deemed to have deprived him of the right to a fair hearing, as required by the Migration Act. The Court concluded that the Tribunal's failure to address these issues adequately amounted to a jurisdictional error. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The respondent submits that where answers from the interpreter were indecipherable, the respondent was deprived of the right to have the Tribunal consider his responses. Given the extent of the problem and the context in which they occurred, there was a sufficient basis for the primary judge to conclude that the respondent was deprived of a fair hearing.Consideration In an application to the Federal Circuit Court under s 476 of the Act for review of a migration decision of the Tribunal, it is necessary for the applicant to demonstrate jurisdictional error: see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [76]. The applicant bears the onus of establishing jurisdictional error: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [41]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67]; SZJBD v Minister for Immigration (2009) 179 FCR 109 at [73]. The applicant must demonstrate jurisdictional error on the balance of probabilities: see s 140 of the Evidence Act 1995 (Cth). Section 425 of the Act provides, relevantly:(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 427 of the Act provides, relevantly:(7)If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the High Court was concerned with s 360(1) of the Act, a provision nearly identical to s 425(1). The plurality said:60…The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal’s duty therefore extends further than merely issuing an invitation to an applicant to appear.61Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal’s knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.(Underlining added, citations omitted.)