FEDERAL COURT OF AUSTRALIA
BKO16 v Minister for Immigration and Border Protection [2018] FCA 1319
ORDERS
First Appellant BKP16 Second Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. On or before 24 September 2018, the appellants file and serve any affidavits or written submission upon which they seek to rely in relation to this appeal.
2. The matter be stood over to a date to be fixed for any further hearing or judgment, depending on the content of any affidavits or written submissions filed pursuant to Order 1 above.
THE COURT NOTES THAT:
3. Any affidavits or written submission filed pursuant to Order 1 above should identify as far as possible the interpretation errors that occurred and what part of the decision of Emmett J this could have affected.
4. If it be the case that the Court is of the view that issues raised in the affidavits or written submissions referred to in Order 1 above require the Minister’s attention, the chambers of the Chief Justice will communicate with the parties and the matter may be relisted. If the Court is of the view that no issues are raised that need to be dealt with by the Minister, judgment will be delivered on the basis of the submissions as currently filed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from the transcript)
ALLSOP CJ:
1 In this matter, the first appellant and her child, who was born in Australia, appeal from orders made by a Judge of the Federal Circuit Court of Australia on 13 March 2018, dismissing an application for judicial review from a decision of the Administrative Appeals Tribunal, that had, on 30 May 2016, affirmed the decision of a delegate of the Minister not to grant her and her son protection visas.
2 The first appellant is a citizen of the People’s Republic of China. She has a number of children in China. The second appellant was born in Australia in 2011. The first appellant came to Australia in 2007. The father of the child born in Australia is otherwise married to someone else.
3 The various claims for judicial review were dealt with by the primary judge in a decision of some 101 paragraphs. No written submissions were provided by the appellant to the Federal Circuit Court judge; nor have any been provided to this Court on appeal. There is a disconformity, to a degree, between the grounds of review before the Federal Circuit Court and the grounds of appeal in this Court, with two important differences. The claims on appeal amount to an assertion of error by the primary judge for not concluding that the Tribunal’s decision should be set aside.
4 The two aspects of the notice of appeal which differ from the grounds of review are ground 3, which is an assertion of bias against the Minister and the Tribunal; and, importantly for today, the assertion in ground 4 that:
The interpreter has made several main omissions which is greatly affected the decision.
5 It should be noted that this notice of appeal was dated 3 April 2018. On 30 April 2018, Registrar McCormick made orders for the preparation of this appeal, and the appellant was provided with an opportunity to file written submissions no later than 10 business days before today’s hearing. As I said earlier, no written submissions have been filed, and therefore, until today, the precise nature of this complaint was less than clear.
6 Paragraph 4 of the notice of appeal is able to be read as a complaint that the interpreter before the Administrative Appeals Tribunal was inadequate; that is certainly how the Minister took the ground. The Minister’s submissions, naturally, were to the effect that this could have been dealt with below, and could have been dealt with on evidence. Notwithstanding the length of time since the end of April to today, there have been no submissions, and no evidence has been filed to support the assertion in ground 4.
7 What was put to me today by the first appellant was that the interpreter before Judge Emmett, in the Federal Circuit Court, was inadequate. Given the nature and terms of the reasons of Judge Emmett, it is not at all clear how any deficiencies in interpretation could have affected how her Honour dealt with the matter. The assertions as to an inadequacy in the interpretation before Judge Emmett were not particularly specific, but were adamant.
8 This question cannot be dealt with simply by assertion from the bar table by an appellant who has not taken the opportunity to present her case with evidence. For that reason, I propose to provide the appellant with an opportunity to file an affidavit or affidavits identifying, as far as possible, the errors in interpretation, and what part of the decision of Judge Emmett this could have affected. This will require the appellant to obtain some interpreting assistance, and focus upon what Judge Emmett’s decision was, and how the interpreting could have affected it.
9 The first appellant has indicated that she had a friend who was supposed to come today to assist in this task. I will provide the appellant with time up to 24 September to file and serve any affidavits and written submissions upon which she seeks to rely on any of her grounds of appeal.
10 If I am of the view, upon the filing of that material, that there is an issue to be dealt with by the Minister, my chambers will contact the appellants and the Minister. If I do not, I will deal with the matter on the submissions today and that evidence.
11 For the reasons above, I make the following orders:
(1) On or before 24 September 2018, the appellants file and serve any affidavits or written submission upon which they seek to rely in relation to this appeal.
(2) The matter be stood over to a date to be fixed for any further hearing or judgment, depending on the content of any affidavits or written submissions filed pursuant to Order 1 above.
(3) Any affidavits or written submission filed pursuant to Order 1 above should identify as far as possible the interpretation errors that occurred and what part of the decision of Emmett J this could have affected.
(4) If it be the case that the Court is of the view that issues raised in the affidavits or written submissions referred to in Order 1 above require the Minister's attention, the chambers of the Chief Justice will communicate with the parties and the matter may be relisted. If the Court is of the view that no issues are raised that need to be dealt with by the Minister, judgment will be delivered on the basis of the submissions as currently filed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. |
