Adhikaree v Minister for Immigration

[2014] FCCA 621

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADHIKAREE & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 621

Catchwords:
MIGRATION – Employer nomination visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that a reasonable apprehension of bias attached to it.

Legislation:

Migration Act 1958, ss.65, 359C

Migration Regulations 1994, reg.5.19, cls.856.213 and 856.221 of sch.2
Migration Amendment Regulation 2012 (No. 2), item 124 of sch.1, item 29 of sch.2
Federal Circuit Court Rules 2001, r.44.12

Cases Cited:
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Johnson v Johnson (2000) 201 CLR 488
Re Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425

First Applicant: NARAYAN ADHIKAREE

Second Applicant: GANGAMAYA ADHIKAREE

Third Applicant: BISLOP ADHIKAREE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2692 of 2013

Judgment of: Judge Cameron

Hearing date: 4 March 2014

Date of Last Submission: 4 March 2014

Delivered at: Sydney

Delivered on: 4 March 2014

REPRESENTATION

Solicitors for the Applicants: Newman & Associates

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Pursuant to r.44.12 of the Federal Circuit Court Rules 2001 the application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $3,326.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2692 of 2013

NARAYAN ADHIKAREE

First Applicant

GANGAMAYA ADHIKAREE

Second Applicant

BISLOP ADHIKAREE

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant, who is a citizen of Nepal, applied for an Employer Nomination (Residence) (Class BW) subclass 856 visa on 16 March 2011. The first applicant’s wife and son, who are the second and third applicants, were included in that application as members of his family unit. On 12 December 2011 the first applicant’s application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy the requirements of cl.856.221 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. The matter is before the Court for consideration of the applicants’ application that the respondents show cause why relief should not be granted to them.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001, if the applicants do not have an arguable case against the respondents.

4. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

5. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. At the time the first applicant made his application, the criteria for the grant of the visas he sought were set out in pt.856 of the Regulations. The primary criteria which the first applicant had to satisfy included cls.856.213 and 856.221 which relevantly provided:

   856.21      Criteria to be satisfied at time of application

   …

   856.213        Each of the following is satisfied:

   (a)the applicant has been nominated by an employer, in accordance with subregulation 5.19 (2), for an appointment in the business of that employer; …

   856.22       Criteria to be satisfied at time of decision

   856.221        The appointment mentioned in paragraph 856.213 (a):

   (a)     has been approved; and

   (b)     has not been withdrawn; and

   (c)     continues to satisfy the criteria for approval; and

   (d)     is still available to the applicant.

2. On 1 July 2013 pt.856 of sch.2 to the Regulations was repealed by the Migration Amendment Regulation 2012 (No. 2). However, the part continued to apply to visa applications made before 1 July 2013 (item 29 of sch.2 to the Migration Amendment Regulation 2012 (No. 2)).

3. At the time the first applicant applied for a visa and his employer sought to nominate his proposed position, reg.5.19 relevantly provided:

   5.19 Approval of nominated positions (employer nomination)

   (1)An employer may apply to the Minister for approval of a nominated position as an approved appointment.

4. On 1 July 2013 that version of reg.5.19 was replaced with a different reg.5.19 by the Migration Amendment Regulation 2012 (No. 2). However, it continued to apply to applications made before 1 July 2012 (item 124 of sch.1 to the Migration Amendment Regulation 2012 (No. 2)).

Background facts

1. The first applicant applied for the subclass 856 visa on the basis that he had been nominated for the position of “Indian cook” in an Indian restaurant.  On the same date as the first applicant lodged his application, his proposed employer applied for approval of his nominated position under the Employer Nomination Scheme.  On 12 December 2012 the proposed employer’s nomination application was refused by a delegate of the Minister.  On the same day, the same delegate refused to grant the applicants subclass 856 visas on the basis that there was no approved nomination in relation to the first applicant.

2. The first applicant’s proposed employer sought a Tribunal review of the delegate’s decision and on 27 August 2013 the Tribunal affirmed the delegate’s decision to not approve the proposed employer’s nomination.

The Tribunal’s decision and reasons

1. As already recorded, the applicants made their own application to the Tribunal concerning the decision to refuse them visas. Subsequently, the Tribunal invited them to comment on or respond to information which it considered would be the reason, or part of the reason, for affirming the delegate’s decision on their visa applications. That information was that it had affirmed the decision to not approve the nomination for an approved appointment lodged by the first applicant’s proposed employer. The applicants were advised that if their comments or response were not provided in writing by 11 September 2013, the Tribunal might make a decision on their application without taking any further steps to obtain their comments or response and they would lose any entitlement they might otherwise have had to appear before it. No response was received from the applicants. In those circumstances, and pursuant to s.359C of the Migration Act 1958 (“Act”), the Tribunal proceeded to make a decision on the review without taking any further action to obtain the applicants’ comments or response.

2. In reaching its decision the Tribunal noted that the first applicant’s proposed employer’s application for appointment under the Employer Nomination Scheme had been refused by the delegate on 12 December 2011 and that that refusal had been affirmed by it on 27 August 2013. As the employer’s nomination had not been approved, the Tribunal found that the first applicant did not meet the criteria in cl.856.221.

Proceedings in this Court

1. The Tribunal’s decision to affirm the delegate’s decision on the first applicant’s proposed employer’s nomination and its decision to affirm the delegate’s decision on the applicants’ visa application were both made by the same Tribunal member.  In the application commencing these proceedings the applicants alleged:

   1.The applicants sought an Employer Nomination (Residence) (Class BW) visas.  The delegate declined the application leading the applicants to appeal to the Tribunal.  The Tribunal Member assigned to hear the application had earlier refused an application for approval of the nominator an had written to the applicants seeking comment as to why they should also not be refused as they could not succeed in light of the earlier refusal of the nominators application.

   2.The Migration Review Tribunal pursuant to provisions of the Migration Act 1958 on 23 September 2013 approved a Code of Conduct guiding the behaviour of members of the Tribunal. Paragraph 4 of the code requires members to disclose, and to take all reasonable steps to avoid, any conflict of interest (perceived or actual).

   3.The applicants claim that the member, having already decided the fate of the nomination, an allied but separate part of the approval process, ought not to have proceeded to decide the fate of the application of the present applicants as a conflict of interest could be seen to arise.

   Particulars

   The Tribunal could be perceived to be buttressing its earlier decision or, alternatively, be perceived as undermining the nominees’ application by the earlier rejection of the nominator’s review application.

2. Although the application was phrased in terms of a conflict of interest, the applicants’ submissions were phrased in terms of apprehended bias by reason of possible prejudgment.  Even so, their written submissions did also make reference to conflict of interest so that issue should be addressed at the outset.  The applicants did not suggest what interest the Tribunal member might have had in the outcome of either element of the visa process, or in their combination, and I find that no such interest has been proved. 

3. Turning to the question of apprehended bias by reason of prejudgment, for the applicants to make out that allegation they must demonstrate that a fair minded lay observer properly informed as to the nature of the proceeding, the matters in issue and the conduct said to give rise to an apprehension of bias might reasonably apprehend the possibility the Tribunal was not bringing an impartial and unprejudiced mind to the resolution of the question it was required to decide: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425.

4. The applicants did not suggest that any apprehension of bias attached to the antecedent decision concerning the proposed nominated position.  Consequently, it is only the decision concerning the applicants’ visa application which needs to be considered by reference to the question of apprehended bias. 

5. In this case, the Tribunal’s hands were tied by the Regulations. Given its earlier affirmation of the decision concerning the proposed nominated position, it had no alternatives to making the decision it did on the applicants’ review.

6. The question which the applicants’ allegation presents is what the hypothetical lay observer would have thought of a particular Tribunal member deciding the applicants’ case, having already decided the review of the decision on the proposed nominated position. Logically, given the way the Regulations were drawn, prejudgment is irrelevant in the context of the applicants’ case. That is because the outcome of the applicants’ review was unavoidable and completely predictable. The applicants suggested in submissions that the Tribunal could have exercised some discretion but, given the terms of s.65 of the Act, I do not agree. The Tribunal had no discretion to reach a decision other than the one which it reached.

7. I am not persuaded that a reasonable lay observer would have apprehended the possibility of bias in circumstances where the Tribunal could exercise no independent judgment in deciding the outcome of the review because the Regulations mandated a particular result.

Conclusion

1. In my view, the applicants do not have an arguable case for relief. 

2. Consequently, the application will be dismissed pursuant to r.44.12 of the Court’s Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  1 April 2014