Bui v Minister for Immigration and Citizenship

The case of Bui v Minister for Immigration and Citizenship involves a naturalised Australian citizen, the review applicant, who sought an extension of time to appeal a decision of Federal Magistrate Smith. The Federal Magistrate had dismissed an application for judicial review of a decision of the Migration Review Tribunal, which in turn had affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse a ‘Prospective Marriage’ (Temporary) visa to the review applicant’s fiancé. The legal issues before the court included whether the Tribunal was affected by apprehended bias, whether it failed to provide procedural fairness, and whether it took into account irrelevant considerations in making its decision.

The court found that there was no evidence to support the allegation of apprehended bias against the Tribunal. The court held that it was within the Tribunal’s statutory duty to make a decision on the issues of credibility and intention raised by cl.300.216 of the Migration Regulations 1994 (Cth). The court further held that a fair-minded lay observer would not conclude that apprehended bias was demonstrated on the part of the Tribunal. Regarding procedural fairness, the court held that it was difficult to understand how a consideration of ‘the best interests of a child’ could have a legal or factual bearing on the Tribunal’s application of the criterion in cl.300.216. The court observed that there might be coincidence of the adults’ intention and what might appear to be the best interests of the child, and the evidence might be relevant to the decision-maker’s consideration of cl.300.216, but in this case, such evidence was not provided.

The court ultimately dismissed the review applicant's application for an extension of time to appeal. The Federal Magistrate concluded that the review applicant’s claims of apprehended bias and procedural unfairness were effectively attacks on the merits of the Tribunal’s decision and were not supported by the evidence. The court found that the Tribunal had properly exercised its discretion in affirming the delegate’s decision to refuse the visa application.