BOF23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 530
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BOF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 530
File number(s): SYG 979 of 2023 Judgment of: JUDGE D HUMPHREYS Date of judgment: 19 June 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for injunction restraining Tribunal from making further decisions – whether Tribunal erred in its exercise under s 19D(1) of the AAT Act – whether Tribunal considered the applicant’s response adequately – whether Tribunal decision affected by jurisdictional error. Legislation: Constitution s 75
Administrative Appeals Tribunal Act 1975 (Cth) s 2A, 19D, 21A
Migration Act 1958 (Cth) s 474A
Cases cited: Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill [2006] HCA 46
Charisteas v Charisteas [2021] HCA 29
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Minister for Immigration and Citizenship v Li [2013] HCA 18
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 19 June 2023 Date of hearing: 19 June 2023 Place: Parramatta Counsel for the Applicant: The Applicant appearing in person Solicitor for the Respondents: Mr Papalia, Australia Government Solicitor ORDERS
SYG 979 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BOF23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
19 JUNE 2023
THE COURT ORDERS THAT:
1.The application for an injunction is refused.
2.The matter is adjourned for a hearing in relation to the issue of costs, at 9:30am on 30 June 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application seeking judicial review of a decision of the Administrative Appeals Tribunal’s (“the Tribunal”) Acting President Collier J, not to reconstitute the Tribunal from Deputy President Redfern to another Tribunal member. The applicant seeks an injunction restraining the Tribunal from proceeding with the hearing currently scheduled for Wednesday, 21 June 2023.
Accordingly, the matter has been listed before me as the General Federal Law duty judge for an urgent hearing. Due to the urgency of the matter, a decision is being delivered by me orally, or ex tempore. However, a copy of my reasons will be reduced to writing and provided to the parties as soon as a transcript is available.
The matter has a long and complex history. The applicant is a citizen of Sri Lanka. On 29 October 2012, the applicant applied for a Protection visa. His application was initially rejected by a delegate of the Minister for Immigration on 27 February 2014. On 24 March 2015, the then Refugee Review Tribunal (constituted by Member Fordham) affirmed the delegate’s decision not to grant the applicant a Protection visa. On 26 May 2016, this Court quashed the Tribunal’s decision and remitted the matter back for reconsideration according to law.
The applicant was then invited to attend a hearing of the Tribunal before Member Kamand. The applicant wrote to the Tribunal on 4 January 2017, seeking his matter not be heard by Member Kamand, but instead be assigned or allocated to an appropriate senior member of the Tribunal. On 6 January 2017, Deputy President Redfern wrote to the applicant, advising that his letter had been referred to her as the Division Head of the now Migration and Refugee Division of the Tribunal.
The letter advised that the power to reconstitute the Tribunal and his concern should be addressed by making a recusal application to Member Kamand at the commencement of the hearing. The letter also advised that if the applicant was unsatisfied with the outcome of the case once the matter had been determined, appeal rights lay to this Court on the basis of jurisdictional error. Deputy President Redfern advised it was not possible for her to otherwise intervene in the decision-making process.
On 13 January 2017, the applicant wrote to the Tribunal seeking that Deputy President Redfern consider an application for a six-week adjournment. A reply by letter, dated the same day, advised that as the matter was constituted to Member Kamand, she was not able to intervene in the matter and that any application for an adjournment should be made to Member Kamand. The applicant made an application for an adjournment to Member Kamand. However, the application was declined.
The applicant did not subsequently attend the hearing scheduled for 16 February 2017. On 10 April 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa. The applicant sought judicial review of Member Kamand’s decision. That application was initially refused by this Court. However, on appeal, on 18 March 2022, the Federal Court quashed the decision of the Tribunal and remitted it back to the Tribunal to again be dealt with according to law.
On 16 December 2022, the Tribunal wrote to the applicant, inviting him to appear at a hearing on 5 April 2023, before Deputy President Younes. The applicant accepted this invitation. However, the applicant’s representative wrote to the Tribunal, seeking that Deputy President Younes recuse herself, and the matter be reconstituted to another senior Tribunal member. On 27 March 2023, Deputy President Redfern wrote to the applicant’s representative, advising that due to the nature of the allegations that have been made against Deputy President Younes, which were described as “personal and offensive”, it had been determined that the matter would be reconstituted now before Deputy President Redfern.
On 3 April 2023, the applicant’s representative wrote to the Tribunal, seeking that Deputy President Redfern also recuse herself. Following further correspondence, on 8 May 2023, the Tribunal wrote to the applicant’s representative, advising that having reviewed all the correspondence and material provided by the applicant, Deputy President Redfern did not propose to recuse herself. On 30 May 2023, the applicant’s representative wrote to the Acting President of the Tribunal, seeking a further reconstitution. On 7 June 2023, Collier J made a decision not to reconstitute the Tribunal under s 19D(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) and also sent out brief reasons for that decision. On 15 June 2023, the applicant commenced the current litigation in this Court.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S REASONS
Acting President Collier noted that members’ independence was a core pillar of the architecture of the Tribunal. Once a member has been constituted to hear and determine a particular review, that member is alone responsible for the conduct of the review. A restrained approach to that power is required, with regard to be had to the Tribunal’s objective in s2A of the AATAct, which includes to provide a mechanism of review that is accessible and is fair, just, economical, informal and quick. Finally, it would not ordinarily be appropriate for the President to exercise the reconstitution power in respect of matters that could be otherwise addressed by an application for the member’s refusal, which application, if refused, could be subject to judicial review.
It has been submitted by the respondent that contrary to the assertion made by the applicant that Deputy President Redfern declined to adjourn the earlier proceedings before Member Kamand or reconstitute the Tribunal are not born out by the Tribunal’s records. Finally, it is submitted that Acting President Collier indicated to the applicant that he could make any further recusal application to Deputy President Redfern at the hearing listed for 21 June 2023.
JURISDICTION OF THE COURT TO HEAR THE APPLICATION.
The Court is firstly satisfied that it has the power to hear the application in respect of the injunction sought. This Court has the same power as the High Court under s 75(5) of the Constitution in relation to migration decisions. Section 474A of the Migration Act 1958 (Cth) (“the Act”) defines an AAT Act migration decision to mean a decision under a listed provision of the AAT Act including s 19D, reconstitution decisions and including the function of the Tribunal in relation to the exercise of jurisdiction to review Part 7 reviewable decisions. The Court is satisfied the decision of Acting President Collier contained within the letter dated 7 June 2023 has the requisite character and is, therefore, reviewable by this Court.
PRINCIPLES IN RELATION TO INJUNCTIVE RELIEF.
The applicable principles to the grant of an interlocutory injunction are well established. The purpose of an interlocutory injunction is to preserve the subject matter of the dispute and to maintain the status quo pending the determination of the rights of the parties: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
An applicant to an interlocutory injunction must make out a prima facie case for relief and also establish that “… the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted”: Australian Broadcasting Corporation v O’Neill [2006] HCA 46 at [65]. Further, the Court would need to be satisfied that the balance of convenience lies in favour of granting the injunction before the exercise of the discretionary power to grant that type of relief.
THE APPLICANT’S GROUNDS OF JUDICIAL REVIEW
The applicant appears to rely upon the following grounds which have been crystallised by the respondent. They are as follows:
a)
The Tribunal erred in holding it was not appropriate to exercise the power in
s 19D(1) because the reasons provided by Acting President Collier are brief and did not consider the claims made that Member Kamand had been biased and the Deputy President Redfern had previously made adverse decisions against the applicant;
b) The Tribunal erred in fact when it concluded that Deputy President Redfern did not make the alleged adverse decisions; and
c) Deputy President Redfern’s previous involvement is sufficient to give rise to a ground of apprehended bias and the tribunal committed jurisdictional error in relying upon Kerr J reasons for decision in matter number 141905.
The applicant’s supporting Affidavit makes a number of assertions, which include that he suffers from post-traumatic stress disorder, and he may need to participate in a United Nations investigation. In a documents headed “Comments on letter dated 27 March 2023 from the Administrative Appeals Tribunal” and submissions the applicant and his migration agent, Mr Mahmoud, refer to the need for the Commonwealth to act as a model litigant and that it is unreasonable for a decision-maker to make a decision without obtaining information that is relevant and is readily available to the Tribunal. The submission also notes that the Commonwealth deprives Protection visa seekers of work rights, access to Medicare and other issues.
The relevance of these comments is not apparent to the Court in relation to the matter it is considering. The commentary goes on to assert that it is unfair that the applicant should have his matter considered by Deputy President Redfern and that she should recuse herself from hearing the application. Reference is also made to a number of comments made by the Federal Court in relation to Member Kamand which it is submitted indicated bias on the part of that member. Reference was also made to the test for perceived or apprehended violence. Allegations were made in respect of Deputy President Younes and her affiliation with the Liberal Party of Australia and that was sufficient for Deputy President Younes to recuse herself from hearing the matter.
It was submitted that in her response to the letter to the Tribunal seeking to have Deputy President Younes recuse herself, a statement made by Deputy President Redfern that Deputy President Younes’ “regards the allegations made as personal and offensive. I consider the remarks in your submissions to be unsubstantiated. Having said this, I propose to have your client’s matter constituted to me.” It was submitted that the above comment is evidence of bias by Deputy President Redfern towards the applicant. There are also medical certificates indicating psychological issues suffered by the applicant, together with various physical ailments. In oral submissions, the applicant stated he was not sure if Deputy President Redfern was independent or not.
He further stated what he wanted was someone who had nothing previous to do with his case to conduct the review, as he was concerned that people who had been involved in his case previously would simply reject it again. He said he was still ill and confused and this was why he was asking for an injunction on 21 June 2023, being two days from today. He stated he would be unable to appear at the Tribunal on 21 June 2023 due to his medical conditions.
THE FIRST RESPONDENT’S SUBMISSIONS
The respondent tendered an Affidavit of Mr David Brown, Solicitor, and relied on the material attached to that Affidavit in annexures. It was submitted that the essence of the Minister’s position is that it is not appropriate for this Court to intervene in circumstances where the applicant could bring an application for Deputy President Redfern to recuse herself from the hearing on Wednesday. Reference was made to the decision of Jagot J in the case of Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299 at [30] where Her Honour held that, ordinarily, an application for decision-maker to recuse themselves should be made to the decision-maker in the first instance. The precursor of s 19D of the AAT Act was s 21A which has since been repealed, and is, in all substance, the same.
Jagot J said that s 21A of the AAT Act was not a substitute for the normal common law principles in relation to applications for recusal. It was further submitted that applying the principles enunciated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), the applicant had ruled out a claim of actual bias based on his statement that he did not know whether or not Deputy President Redfern was independent or not. That then left apprehended bias.
It was submitted that on the materials before it, the Court would be unable to form a conclusion that apprehended bias had been established. In these circumstances, it was submitted it would be inappropriate for the Court to grant the injunction sought.
CONSIDERATION
The Court is firstly satisfied that Deputy President Redfern was not involved in previous decision making, as regards Member Kamand. The power to reconstitute the Tribunal does not lie with Deputy President Redfern. It lies with the President of the Tribunal.
The Court is not satisfied, contrary to the assertion made by the applicant, that Deputy President Redfern was a decision maker and declined to adjourn the earlier proceedings in January 2017 or reconstitute the Tribunal. In terms of the decision of Acting President Collier, in order for this Court to intervene, the Court would need to be satisfied that the decision not to reconstitute the matter before another member and be heard by Deputy President Redfern is a decision that is legally unreasonable, in the sense set out by the higher court in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [68], [75]-[76]. Legal unreasonableness is invariably fact dependent, and the bar for finding legal unreasonableness has been described as stringent. Unreasonableness can be inferred where a decision appears to be arbitrary, capricious, without common sense.
A fair reading of the reasons, although brief, contained in the letter from Acting President Collier do not show any legal unreasonableness, in that there is an evident rationale and justification for the decision not to reconstitute the Tribunal, noting the power contained in s 19D of the AAT Act and the policy of the Tribunal in relation to reconstitution. The Court is satisfied the decision was lawful and involves no jurisdictional error.
The Court is further satisfied that Deputy President Redfern did not make a decision as alleged by the applicant. The material complained about, to the Court’s mind, was in the nature of commentary to explain the position of the Tribunal. Based on the principles in Ebner and confirmed in Charisteas v Charisteas [2021] HCA 29 at [9], the Court is not satisfied that the claim of apprehended bias has been made out.
Firstly, it appears the basis of the applicant’s claim of apprehended bias relies upon a fear that because Deputy President Redfern had some peripheral involvement with this case previously that she will not bring an independent mind to the substantive hearing. Whilst the Court does not doubt that this fear is real on the part of the applicant, the Court is not satisfied there is a logical connection between that fear and a fair-minded lay observer reasonably apprehending that Deputy President Redfern would not bring an impartial mind to the resolution of the matter. In any event, the Court is of the view that any application for recusal, based on a fear of apprehended bias, needs to be made in the first instance to Deputy President Redfern.
If the application is made and is unsuccessful, the applicant’s rights of judicial review remain and are unaffected by the decision. If the applicant is able to subsequently show to this Court that there is a basis for a finding of apprehended bias, that will be sufficient ground for the decision of the Tribunal to be set aside and the matter remitted back to the Tribunal for further consideration. What is clear, however, is that it is not a matter for the applicant to dictate to the Tribunal who and in what circumstances the hearing of his application for review will take place. The Court is not satisfied the applicant has made out a prima facie case in respect of his grounds of judicial review.
The Court is also not satisfied it would be appropriate or proper, in the circumstances of this case, to intervene at an interlocutory stage of the proceedings. The balance of convenience in favour of granting the injunction has not been made out. The application for interlocutory injunctive relief is refused.
If the applicant considers he is medically unfit to attend the hearing on Wednesday, he should provide the Tribunal with an appropriate medical certificate setting out the diagnosis and prognosis of his illness, and the basis upon which he is medically unfit to attend the Tribunal hearing. When the hearing does proceed, the applicant is at liberty to make an application to make a further application for Deputy President Redfern to recuse herself from further hearing of the matter.
Should that application be unsuccessful, the applicant has further rights and liberty to seek judicial review of the entire decision by this Court following completion of the review hearing.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Deputy Associate:
Dated: 19 June 2023
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