1419015 (Practice and Procedure) - [2016] AATA 3075

1419015 (Practice and Procedure) [2016] AATA 3075 (29 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1419015
DIBP REFERENCE(S):  CLF2013/68581
MEMBER:President Kerr
DATE:29 January 2016
PLACE OF DECISION:  Hobart
DECISION:The Tribunal remain as constituted

This is an application seeking the reconstitution of the Tribunal after the hearing of a matter had commenced but prior to its determination by Senior Member Kira Raif.
The application has been made to the Administrative Appeals Tribunal (the Tribunal or AAT) by Parish Patience Immigration Lawyers (Parish Patience) acting for the Applicant. The request for reconstitution was made by letter from Parish Patience, dated 27 November 2015, addressed to Dr Irene O’Connell the Acting Division Head, Migration and Refugee Division of the AAT.
Initially managed as a complaint, the letter requesting the reconstitution was referred to me, as the President of the AAT, on 18 January 2016.
A letter apologising for the delay has been sent to the Applicant.
The subject matter of the review was the Applicant’s entitlement or otherwise to a Partner visa. The Applicant’s case was that her relationship had broken down following domestic violence.
The Applicant was assisted at the hearing before Senior Member Raif by Mr Michael Jones, Special Counsel for Parish Patience.
The Applicant is seeking the reconstitution of the Tribunal on the basis, as asserted by Parish Patience, that Senior Member Raif was “unsympathetic” and lacked sensitivity during the hearing of the Applicant’s review on 17 November 2015.
Parish Patience provided the following details of Senior Member Raif’s alleged conduct:
Mr Jones reported after the hearing that [the Applicant] clearly did not understand the technical and repetitive attempts by Member [sic] Raif to explain the issue of the Schedule 3 requirements and the waiver provisions of the Regulations. The Member made no attempt to explain, rather than simply repeat, the requirements. Mr Jones was of the opinion that the manner in which the Member conducted the hearing was abrupt and technical and clearly conveyed the impression that she was unsympathetic to [the Applicant’s] case. He was also concerned that the Member had shown little sensitivity in relation to domestic violence issues, asking [the Applicant] why she had remained so long in a violent relationship.
Parish Patience advised that on 18 November 2015 (the day after the hearing) the Applicant was involuntarily admitted to the Kiloh Centre, Prince of Wales Hospital as a result of a suicide attempt.
In support of the application to reconstitute the Tribunal, Parish Patience supplied a letter dated 27 November 2015 from Dr Adam Bayes, staff specialist psychiatrist, Eastern Suburbs Mental Health Service, NSW Health.
In his letter, Dr Bayes advises that the Applicant reported to him that:
…she made the attempt because she was distressed by the recent Migration Review Tribunal [sic] hearing which she found highly distressing and confrontational. She also worries about the future of her 4 year old daughter, should she be deported.
Dr Bayes’ letter continues:
The ongoing Migration Review Tribunal [sic] hearings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 3075
Decision Date: 29 January 2016

CaseChat Overview and Summary

The parties involved in this case were 1419015 and the Administrative Appeals Tribunal. The dispute centred around the Tribunal's refusal to reconstitute itself under section 19D(2)(a)(iii) of the Administrative Appeals Tribunal Act 1975. The matter was heard in the Federal Circuit Court of Australia. The applicant sought reconstitution of the Tribunal, arguing that the existing composition was not appropriate due to potential bias. The Tribunal, however, declined to reconstitute itself, maintaining its current composition.

The legal issues before the court were whether the asserted grounds for recusal were sufficient to warrant reconstitution of the Tribunal and whether the application could be made after the hearing had commenced but before the Tribunal reached its decision. The court had to determine if the Tribunal's refusal to reconstitute was justified and if the applicant's grounds for recusal met the statutory criteria.

The court found that the applicant's grounds for recusal did not meet the statutory criteria for reconstitution. The asserted basis for recusal was not sufficient to warrant a change in the Tribunal's composition. The court also ruled that an application for recusal could be made after the hearing had commenced but before the Tribunal determined the proceeding. Ultimately, the court directed that the Tribunal remain as constituted and dismissed the application for reconstitution. The court held that the applicant had not demonstrated that the existing Tribunal members could not fairly and impartially determine the matter.

Orders