Australian Immigration Daily News

Sometimes when you are reading through the decisions of the Federal Courts, something will strike you as so unusual, or so incredible, that it will feel like a bucket of cold water has been poured over your head!

Exhibit A is a decision of the Full Court of the Federal Court in the case of CQX18 v Minister for home Affairs (2019) FCAFC 386 (21 August 2019).

This case involved an application for judicial review of a decision by the Immigration Assessment Authority affirming the Department’s refusal of a Safe Haven Enterprise visa.

What happened here was the Full Court approved consent orders returning the case to the Federal Circuit Court for rehearing on the basis that the applicant had been denied procedural fairness when the matter was first heard in the FCC.

This is what went wrong at the FCC:

• The applicant was in immigration detention when the matter was heard in the FCC, and no interpreter was present with him as the applicant appeared before the FCC by video-link and not in person (!).
• The transcript of the hearing before the FCC revealed that there  were  “difficulties with the video-link transmission of the hearing” – meaning apparently that either the events in the courtroom were not properly conveyed to the applicant or the applicant could not be heard in the courtroom (either way a disaster!);
• There was “real doubt” as to whether the applicant received the  Minister’s written submissions or the Court Book (containing documents relevant to the FCC proceedings);
• Incredibly, the judge in the FCC concluded that it would be sufficient for the contents of the Court Book to be “explained” to the applicant, rather than being given a copy of the Court Book itself;
• The applicant was unable to read the Minister’s submissions without the help of a translator, and there was no evidence that the submissions had in fact been translated;
• The ex tempore judgment of the judge of the FCC (judgment given by the presiding judge from the bench immediately after the conclusion of the hearing) was not translated .

It is hard to believe that in 2019, there could be such an obvious miscarriage of justice.

Or maybe not?

What should be clear, in my opinion, is that when applicants seek judicial review in the Federal Circuit Court, they deserve better than this.

Much better!

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