Chen v Minister for Immigration
[2009] FMCA 1151
•24 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1151 |
| MIGRATION – Visa – refusal – review of Administrative Appeals Tribunal decision – allegation of apprehended bias – AAT member had heard and determined previous proceedings concerning applicant’s migration agent – disclosure by AAT – waiver by agent in absence of applicant – whether necessary to make disclosure to applicant personally – whether waiver by migration agent can bind applicant – whether AAT member needed parties’ consent to her hearing matter. |
| Migration Act 1958, ss.134, 303, 417, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Hope v Bathurst City Council (1980) 144 CLR 1 Shi v Migration Agents Registration Authority [2005] AATA 904 Shi v Migration Agents Registration Authority [2005] AATA 851 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168 Vakauta v Kelly (1989) 167 CLR 568 Najjar v Haines (1991) 25 NSWLR 224 Shi v Migration Agents Registration Authority [2008] HCA 31 Jia v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556 R v Birks (1990) 19 NSWLR 677 White v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 511 Minister for Immigration & Multicultural Affairs v Jia; Minister for Immigration & Multicultural Affairs v White (2001) 205 CLR 507 Barton v Walker [1979] 2 NSWLR 740 Bainton v Rajski (1992) 29 NSWLR 539 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| Applicant: | HAIBO CHEN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3358 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 May 2009 |
| Date of Last Submission: | 5 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr I.G.A Archibald |
| Solicitors for the Applicant: | Hugh Solicitors |
| Counsel for the Respondents: | Mr P. Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3358 of 2008
| HAIBO CHEN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Haibo Chen, is a citizen of China. On 5 November 2003 Mr Chen was granted a Business Skills (Migrant) (Class AD) (Subclass 127 – Business Owner) visa. That visa was cancelled by a delegate of the first respondent (“Minister”) on 10 July 2007 pursuant to s.134 of the Migration Act 1958 (“Act”). Mr Chen applied to the Administrative Appeals Tribunal (“AAT”) for a review of that departmental decision. He was unsuccessful before the AAT and has applied to this Court for judicial review of the AAT’s decision.
In these judicial review proceedings the Court’s task is to determine whether the AAT’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant law
Section 134 of the Act relevantly provides:
134 Cancellation of business visas
(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member’s visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or
(c) does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day-to-day management of;
an eligible business in Australia.
(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b)has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
(c) intends to continue to make such genuine efforts.
(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a) business proposals that the person has developed;
(b) the existence of partners or joint venturers for the business proposals;
(c) research that the person has undertaken into the conduct of an eligible business in Australia;
(d) the period or periods during which the person has been present in Australia;
(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g) business activity that is, or has been, undertaken by the person;
(h) whether the person has failed to comply with a notice under section 137;
(i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:
(i) the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii) the reasons why the person no longer holds the interest or participates in the management (as the case requires). …
“Eligible business” is defined in s.134(10) as follows:
eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a) the development of business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d)the production of goods or the provision of services that would otherwise be imported into Australia;
(e) the introduction of new or improved technology to Australia;
(f) an increase in commercial activity and competitiveness within sectors of the Australian economy.
Background facts
On 13 February 2003 Mr Chen lodged an application for a subclass 127 business skills migrant visa. In a business plan provided to the department in support of his application, Mr Chen indicated, amongst other things, that:
a)he had established a successful technology-orientated company in China called Wisdom Multimedia (Shenzhen) Ltd which specialised in the design, manufacture and sales of digital audio and video products;
b)he intended to invest approximately $350,000 in order to set up a similar business in Melbourne. The business would manufacture its products in Australia for export using raw materials purchased from China; and
c)the proposed company would be managed by its two shareholders, Mr Chen and his wife, Ms Zhang Huili.
On 5 November 2003 Mr Chen and his dependent family members were granted subclass 127 visas. Mr Chen entered Australia for the first time on 4 May 2004.
On 12 April 2006 the Minister’s department wrote to Mr Chen and requested that he complete a Form 1010 survey outlining his ongoing efforts to meet visa requirements and his efforts to engage in business in Australia. On 7 November 2006 Mr Chen’s migration agent lodged a Form 1010 survey on his behalf. In that survey, Mr Chen indicated that he was not currently engaged in business activities in Australia because: (i) he was still managing his business interests in China and (ii) he had undertaken insufficient research prior to his migration. Even so, Mr Chen indicated that he was in constant contact with Australian companies “to discuss the possibility of cooperations [sic]”.
A Notice of Intention to Consider Cancellation of Your Visa (“NOICC”) was issued by the Minister’s department on 9 February 2007. In his substantive response dated 26 April 2007 (an interim response having been sent on 7 March 2007 appointing a new migration agent), Mr Chen submitted that:
a)his Australian company, Wisdom Electronics Pty Ltd (“Wisdom Electronics”), was registered on 23 February 2007 and had commenced trading. He and his wife, Ms Zhang, owned 80% and 20% of the shares respectively;
b)Wisdom Electronics received its first shipment of goods on 18 April 2007. These goods were valued at approximately $20,000 and were provided by Mr Chen’s Chinese company. The latter also provided Wisdom Electronics with products on credit;
c)he had assets in China amounting to approximately RMB30,000,000 and was willing to invest a majority of that sum into Australia, however, he needed time to liquidate those assets; and
d)Ms Zhang was at that time looking after Mr Chen’s Australian business affairs and had stayed in Australia for the preparation and initial management of the company. In addition, his two children were attending school in Australia.
In a letter to the department dated 30 April 2007 Mr Chen further submitted that:
a)he had found a buyer for his commercial land in China who had agreed to purchase a 65% interest in that land for $1,965,079. These funds would be transferred to Australia once received, however, the transaction itself would take two to three months to finalise;
b)since his family’s move to Australia, he has transferred more than $65,000 here for expenditure; and
c)his previous migration agent did not send him a copy of the Form 1010 survey which had been lodged without his instructions. As such, he provided another completed survey in which he indicated that he was currently engaged in business in Australia.
On 10 July 2007 a delegate of the Minister cancelled Mr Chen’s visa, and those held by members of his family unit, pursuant to s.134 of the Act.
Mr Chen sought review of that decision with the AAT and submitted a statement dated 30 April 2008 in which he said that:
a)the Chinese government instituted a new policy in 2004 allowing producers of high-tech products in China to purchase industrial land at preferential prices. Mr Chen made an application under the new scheme but did not obtain his land-use certificate until June 2006. It was this which delayed his move to Australia;
b)his wife and children arrived in Australia on 11 June 2006. Attempts were made thereafter to sell their “auto DVD” products in Australia but the limited market for these products made this very difficult. He therefore had to consider other business possibilities and commenced importing bathroom hardware and door locks to Australia;
c)as of 30 July 2007 he had sold a majority of his business and land-use rights in China and had transferred $400,000 into Wisdom Electronics’s bank account;
d)he was still managing what was left of his business in China and could not close or sell it because his family relied on that income. In addition, his Australian business was not yet stable. However, he was preparing to sell his business in China;
e)he suffered from acrophobia and heart failure and therefore avoided flying if necessary. Even so, many of the decisions relating to his Australian business were made by him and then carried out by his wife on his behalf; and
f)although many of his business activities occurred after the cancellation of his visa, they were the result of his active preparations beforehand.
During the course of his review process in the AAT Mr Chen also provided a variety of documents including, but not limited to, business activity statements, financial plans, company bank statements, shipping invoices and projected profit and loss statements.
The AAT’s decision and reasons
The AAT was constituted by Senior Member Kelly who affirmed the delegate’s decision to cancel Mr Chen’s visa.
The AAT found that Mr Chen had not obtained a substantial ownership interest in an eligible business in Australia for the purposes of s.134(1)(a) as it was not persuaded that Wisdom Electronics was an “eligible business” in accordance with the definition found in s.134(10). In reaching this decision the AAT noted that:
a)on the evidence, the only activity which had been carried out by Wisdom Electronics was the importation of door hardware in October 2007 and February 2008 and both events occurred after the cancellation of Mr Chen’s visa;
b)other activities carried out in 2003, 2006 and 2007 were not carried out by Wisdom Electronics;
c)having had regard to the consideration in Hope v Bathurst City Council (1980) 144 CLR 1 of what amounted to a “business”, the AAT was not persuaded that Wisdom Electronics’s activities were being carried on for profit or on a continuous and repetitive basis, given that:
i)it apparently had one purchaser and two suppliers;
ii)it had received only two shipments, both of which occurred after the cancellation of Mr Chen’s visa;
iii)there was no basis in the management report for the 2008 projected earnings and beyond; and
iv)Mr Chen’s prediction of a “bright future” was contradicted by his own conflicting evidence that he was looking at other kinds of businesses because the manufacturer could not meet the purchaser’s requirements and because the Australian market was too small. Further, there was no evidence that Mr Chen had tried to find another manufacturer in China to meet asserted demand which, to the AAT, seemed an obvious step to take to expand the business.
The AAT noted that even if Mr Chen had satisfied s.134(1)(a) of the Act it would, nevertheless, have found that he had not utilised his skills in accordance with paragraphs (b) and (c) to participate actively at a senior level in the day-to-day management of Wisdom Electronics because:
a)it was Ms Zhang who dealt with all aspects of Wisdom Electronics’s activities. Indeed, Mr Chen gave evidence that it was his wife who conducted the day-to-day management of the business;
b)such activity as there had been was limited; and
c)given the little activity that occurred, the AAT was not persuaded that Wisdom Electronics had employees apart from Ms Zhang for any period other than October 2007 – January 2008, which was the only period in respect of which there was documentary evidence regarding the payment of employees.
The AAT was not satisfied that Mr Chen had made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia or that he had made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of that business as required by s.134(2) of the Act. In this regard, the AAT noted that:
a)Mr Chen provided evidence of various business proposals and forecasts for Wisdom Electronics at the time he lodged his visa application, however, no effort was made to establish the proposed business at that time. Later business proposals and forecasts were speculative and ad hoc;
b)while it accepted that on 27 August 2007 Mr Chen had transferred $391,990 into an account in the name of Wisdom Electronics, there was evidence that the next day $300,000 was transferred from that account into a term deposit account with a maturity date of 28 March 2008. In the AAT’s view, such a deposit did not represent an investment in the business nor did it support a firm intention to carry on business in Australia given that it was a short term investment redeemable at the end of the fixed period;
c)the material provided in support of Mr Chen and Ms Zhang’s efforts to sell electronic goods in 2006 and 2007 was unpersuasive and, at the highest, those efforts were desultory; and
d)Mr Chen’s explanation for the fact that he had spent only six days in Australia since the grant of his visa, based on his claim that he avoided flying because of his heart problems and because of acrophobia, was inconsistent with his evidence at the hearing that he had travelled by air to Thailand, the United States, Germany and Austria to attend exhibitions. Further, the business plan he provided in support of his visa application stated that he had just travelled to Germany, Switzerland and Taiwan to visit clients.
In light of the above, the AAT found that Mr Chen’s time and effort had been devoted to carrying on his business activities in China and it was not persuaded that such efforts related only to finalising the business which he said he had sold.
Finally, the AAT declined to exercise its residual discretion to not cancel Mr Chen’s visa as it concluded that he had no intention of residing in Australia or conducting business here, or that he would, if afforded more time, undertake what was required of him under s.134 of the Act. With respect to Mr Chen’s submission that his children would suffer difficulty in adjusting to life in China if their visas were cancelled, the AAT noted that there was no application before it from Ms Zhang or the children asserting extreme hardship under s.134(5) of the Act and, in any event, this was not a matter which would persuade the AAT to exercise its residual discretion.
Prior AAT proceedings involving Mr Shi
One of the migration agents who represented Mr Chen in his AAT proceedings was a Mr Shi. Mr Shi had previously been the subject of disciplinary action by the Migration Agents Registration Authority. He sought review of that action and brought proceedings against the Authority in the AAT. Those proceedings were heard and determined by Senior Member Kelly, the AAT member who heard and determined Mr Chen’s proceedings the subject of this review.
The AAT’s decision in Shi v Migration Agents Registration Authority [2005] AATA 904 was the first of two hearings in proceedings before Senior Member Kelly concerning allegations that Mr Shi had breached provisions of the migration agents Code of Conduct (“Code”). That first hearing was concerned with the making of findings of fact on the allegations that the Code had been breached. In her reasons for decision delivered on 6 April 2005 Senior Member Kelly:
a)found that Mr Shi’s admitted ignorance of cl.2.17 of the Code, requiring written acknowledgement from a client of the advice the migration agent had given, was a very serious breach of cls.2.3 and 2.1 of the Code;
b)found that Mr Shi also breached cls.2.1 and 2.19 of the Code by failing, in a particular client’s protection visa application, to sufficiently address, in the statement provided with the application, the question of why that client came to Australia twice on a visitor’s visa while claiming to fear persecution in China on the basis that she was a Falun Gong practitioner;
c)found in relation to the same client that Mr Shi had breached cl.6.1(c)(i) of the Code by failing to record every substantive or material communication had with that client;
d)found that Mr Shi had breached cls.2.1 and 2.19 in relation to another client who had also visited Australia twice on her own passport before seeking protection on the grounds of her Falun Gong activities;
e)dismissed Mr Shi’s explanations for missing file records in relation to one of those Falun Gong clients as speculative and unconvincing, concluding that he did not know why they were inaccurate;
f)found in relation to another client’s application for protection that Mr Shi had breached cls.2.1, 2.3, 2.4 and 2.19 of the Code by failing to address that client’s failure to seek protection during his fifteen months’ illegal residence in Australia following the expiry of his short-term business visa;
g)found in relation to the same client that Mr Shi had breached cl.6.1(c)(i) of the Code by failing to record oral advice about an application and did not accept that Mr Shi spent the time he said he had spent providing advice. Senior Member Kelly also did not accept that Mr Shi recalled providing advice on prospects of success as he claimed;
h)found in the same matter that a file note was inadequate because it failed to reflect the correct date or indicate how the client was advised, if he was;
i)found in the same matter that Mr Shi had breached cls.2.8(c) and (d) of the Code by failing to keep that client informed in writing of the progress of the application and its outcome;
j)found, in relation to another claim involving a Chinese client who sought protection in Australia, that Mr Shi had breached cls.2.1, 2.3, 2.4 and 2.19 of the Code. In that case, the client had arrived in Australia on a short-term business visa, returned to China and then came back to Australia and sought protection. Senior Member Kelly found that the protection visa application’s failure to address how the client could make a round trip to China in those circumstances was a breach of those provisions of the Code. She also found that Mr Shi’s explanation, that he would have advised that client to provide more information and that the client had promised to do so, was a possible but unsatisfactory explanation rather than a statement of what had happened. Further, Senior Member Kelly did not accept Mr Shi’s evidence concerning the advice he claimed to have given to that client. His oral evidence was not supported by notes in the client’s file;
k)found in relation to another client that an application lodged with the Refugee Review Tribunal was grossly unfounded in the sense in which that term was used in cl.2.17 of the Code after 1 July 1999. Mr Shi’s failure to maintain proper file records was found to be a breach of cl.6.1(a) of the Code and Senior Member Kelly also observed that when seeking the exercise of the Minister’s discretion under s.417 of the Act in relation to that client, Mr Shi provided nothing to the Minister which was not already contained in the original visa application. Mr Shi agreed that no attempt had been made to address the exercise of the Minister’s discretion under s.417;
l)found in relation to another client that Mr Shi’s failure to comply with the Code, in terms of documenting the amounts of money paid, was a clear breach of pt.7 of the Code;
m)found in two further cases that Mr Shi had breached cls.2.1, 2.3 and 2.4 of the Code because he had failed to address the question of the clients’ arrival in Australia on their own passports when the Chinese authorities were searching for them and also failed to record any advice given to those clients on any subject;
n)found in another case that Mr Shi had breached cl.6.1(c)(i) of the Code because he kept no note to record why the client’s claim to be a Falun Gong practitioner recorded in his file notes became, in her visa application and supporting statement, a claim to be a Christian; and
o)noted in respect of three other clients that Mr Shi accepted that he failed to lodge their review applications with the right tribunal and found that this breached cls.2.1(b), 2.3, 2.5(a)(iii) and 4.1 of the Code.
Senior Member Kelly described Mr Shi’s file notes and practices generally as a serious failure on his part. She also stated:
At the beginning of the case, Mr Poynder argued that where there was no evidence to contradict Mr Shi’s evidence I must accept it. I do not agree. As is apparent from the findings I have made above, I did not find Mr Shi a reliable witness. His evidence changed on numerous occasions so as to reduce his responsibility for various breaches of the Code or other failures within his practice. He had some awareness that the Code existed but did not appreciate that he had to comply with it and did not try to. He adopted procedures without reference to the Code. Where the Code was met it was coincidental rather than intentional. (at [232])
On 2 September 2005 the AAT, still constituted by Senior Member Kelly, published its decision in Shi v Migration Agents Registration Authority [2005] AATA 851 which was the second stage of the proceedings and dealt with the consequences of the findings of fact referred to above. One of the issues which Senior Member Kelly addressed was whether she was satisfied pursuant to s.303(f) of the Act that Mr Shi was not a person of integrity or otherwise not a fit and proper person to give immigration assistance. Senior Member Kelly stated:
Having considered all the evidence, I conclude that I am not satisfied that Mr Shi is not a person of integrity or otherwise not a fit and proper person to give immigration assistance within the meaning of s.303(f). My critical findings about his evidence were one factor to consider. However, there was no evidence that he had acted dishonestly in his practice and he has a number of very favourable references. (at [24])
Proceedings in this Court
In his amended application Mr Chen alleges that the AAT’s decision in his case was affected by jurisdictional error by reason of apprehended bias. This allegation was particularised as follows:
(a)The Presiding Member who constituted the Tribunal had in earlier proceedings considered and determined four applications by the representative who appeared for the applicant in the Tribunal (“the Representative”) in relation to four decisions by the Migration Agents Registration Authority concerning the conduct of the Representative as a migration agent.
(b)The Presiding Member had made adverse findings in relation to the conduct of the Representative (“the Adverse Findings”) as a migration agent.
(c)The Adverse Findings included findings to the effect that:
…
(d)The Decision by the Presiding Member in relation to the conduct of the Representative had been the subject of an appeal to the Federal Court of Australia and there had been subsequent appeals to the Full Federal Court of Australia and the High Court of Australia. At the time of the hearing of the review concerning the applicant the judgment of the High Court of Australia had not been delivered.
(e)The Presiding Member proceeded on the basis that provided she informed the parties including the applicant of her earlier involvement in the proceedings concerning the Representative, that they had an opportunity to object to her continuing to hear the review, and waived the opportunity to make an objection to her continued involvement, then she was not disqualified from hearing and determining the review concerning the applicant.
(f)The Presiding Member failed to give the disclosure to the applicant in the manner and extent and to the degree of accuracy required by law such that the purported waiver which was given on behalf of the applicant by his representative was ineffective.
(g)The Presiding Member failed to take appropriate steps or to make other sufficient enquiries to ensure that the applicant had full knowledge of the matter which was being disclosed by the Presiding Member and had received an adequate opportunity to consider his position in relation to such disclosure.
(h)The Presiding Member failed to obtain an effective waiver from the applicant or at all.
(i)The Presiding Member failed to disqualify herself from conducting the review in the light of the ineffective communication of the disclosable matter to the applicant.
(j)The test for apprehended bias has been satisfied.
The evidence
Transcript
The transcript of the hearing before the AAT was an exhibit in these proceedings. That transcript reveals that, at the outset, the AAT identified a Mr Su as Mr Chen’s main advocate at its hearing and that Mr Shi was assisting Mr Su, they both being tax [sic] agents. The evidence discloses that, on behalf of Mr Chen, Mr Su corresponded with the AAT on several occasions. He also signed Mr Chen’s application to the AAT, identifying himself as Mr Chen’s representative.
After the AAT identified Mr Su as the main advocate, it went on to say:
… it’s just appropriate that everybody know that Mr Shi, who is a tax agent, I had a case where I was considering his registration as a tax agent, which is currently – it’s gone to the High Court and the issues there are legal issues about the interpretation obviously a provision of the Migration Act, but I just thought that you should know that. I mean, Mr Shi knows that but if that causes anybody any difficult, my hearing a case in which he is involved as a tax agent. I don’t think it should because it’s a question of my making a decision about Mr Chen on the facts of his case and I don’t think that really should be seen as being anything that’s going to affect my consideration of that question, but I thought you should know in case you became are of – well, you should know those sorts of things. (pp.2-3)
The transcript continues, identifying Mr Shi as the person speaking on behalf of the applicant. Shortly after the statement quoted above, the following passage appears:
Ms Kelly:
You don’t have any difficulty with my proceeding to hear the matter, Mr Shi?
Mr Shi:
No.
Ms Kelly:
All right. I’ll do some reading. Now, I understand we’re having Mr Chen by telephone; is that correct?
Mr Shi:
Yes. (p.3)
After a short adjournment the following exchange occurred between the AAT and the parties’ representatives:
Ms Kelly:
Please be seated. Ms Van Duyn?
Ms Van Duyn:
Yes, senior member. My instructions are that on the basis that the applicant’s representatives stated on the record that they are comfortable with the proceedings proceeding before yourself, that the respondent has no objection to that.
Ms Kelly:
Thank you. So who is actually doing the advocating today? Mr Shi?
Mr Shi:
Yes.
Ms Kelly:
I see. So are you happy for me to sit and hear this case?
Mr Shi:
Yes.
Ms Kelly:
Right, okay. That’s on the record, Ms Van Duyn. (p.4)
At p.7 of the transcript it is apparent that Senior Member Kelly had been mispronouncing the name of the main advocate for the applicant:
Ms Kelly:
I’m sorry, sir, how do you pronounce your name again?
Mr Shi:
Su.
Ms Kelly:
Su?
Mr Shi:
Yes.
Ms Kelly:
Sorry, I’m not good on Chinese… (p.7)
Notwithstanding this clarification, the transcript continues to identify the AAT’s interlocutor as Mr Shi and it continues to record the AAT as describing that gentleman as “Mr Shi”. Plainly, the transcript’s identification of the speakers was inaccurate and, throughout, identified Mr Shi as the only person talking whereas the answers given by the representatives suggest that for a period after about the fourth question, and possibly until Mr Chen gave evidence, it was Mr Su who was talking, not Mr Shi.
After the tender and reception of documents, and approximately thirty-five minutes after “Mr Shi” indicated that he was happy for Senior Member Kelly to hear the case, Mr Chen appeared before the AAT by telephone. Page 11 of the transcript indicates that his appearance arose out of a telephone call which was made to him shortly before his evidence commenced and that he had not been on-line to hear any of the earlier exchanges.
Disclosure to applicant
There is nothing in the transcript of the AAT hearing to suggest that Mr Chen was aware of the AAT’s disclosure quoted above at [25] or of his agent’s waiver of any objection to Senior Member Kelly hearing the matter, as quoted above at [26] and [27].
In his affidavit in these proceedings affirmed 24 April 2009, Mr Chen deposed that Mr Shi was his migration agent. He deposed that at no time prior to engaging Mr Shi or prior to the AAT’s hearing had he been advised that the Migration Agents Registration Authority had taken adverse action against Mr Shi in 2003 and in 2004 or that Mr Shi had appealed those decisions to the AAT. Nor had he been advised that Mr Shi’s appeal to the AAT had been heard and determined by Senior Member Kelly.
Moreover, deposed Mr Chen, at no stage prior to the determination of his application to the AAT had he been advised of the nature of the allegations against Mr Shi or provided with copies of the AAT’s decision concerning Mr Shi or the first instance and appeal decisions of the Federal Court which followed it. Mr Chen also deposed that at no stage prior to the determination of his AAT proceedings was he informed of the matters appearing on pp.2 and 3 of the transcript of his AAT hearing which are quoted above at [25], [26] and [27]. Finally, Mr Chen deposed:
If I had been aware of:
a)the history of Mr. Shi with The Migration Agents Registration Authority,
b)the nature of the allegations against Mr. Shi, Made [sic]
c)the decisions which the Migration Agents Registration Authority had made against Mr. Shi,
d)the findings that the same Presiding Member of the AAT as was hearing my appeal had made in relation to Mr. Shi in the context of the appeal, and,
e)the words used by the Tribunal in pages P-2 and P-3 of the transcript
I would have immediately instructed Mr Shi to cease appearing for me and I would have requested an opportunity to obtain an alternative representative.
Mr Chen’s wife, Huili Zhang, deposed in her affidavit affirmed 24 April 2009 that she had been unaware of any proceedings regarding
Mr Shi’s migration agent registration until after the AAT’s decision the subject of these proceedings. She deposed that although she was in the AAT hearing room, heard Senior Member Kelly speak to Mr Shi at the beginning of the hearing and heard Mr Shi reply immediately in English, she has very limited English language skills and did not understand what was said. Moreover, the interpreter who was present at the AAT hearing did not translate this exchange for her. Ms Zhang also said that someone was sitting next to Mr Shi at the AAT hearing.
The applicant’s submissions
Mr Chen submitted that there was a reasonable apprehension of bias because of Senior Member Kelly’s prior findings against Mr Shi. He submitted that it was not sufficient to look only at the second of the AAT’s judgments concerning Mr Shi’s registration as a migration agent. He submitted that it was impossible for Senior Member Kelly to exclude from her mind those prior proceedings when considering the current applicant’s case and queried whether she would approach Mr Chen’s case with a totally open mind. He submitted that a fair-minded lay observer would think that Senior Member Kelly might unconsciously be moved to take the earlier proceedings into account and might not have brought an impartial mind to the resolution of the questions to be decided in this case.
Mr Chen submitted that at the hearing Senior Member Kelly
… made a “disclosure” to the following effect:
(a)that in relation to Mr. Shi who is a tax agent the Presiding Member had a case where she was considering his registration as a tax agent,
(b)the matter was currently in the High Court,
(c)the matter concerned legal issues about the interpretation obviously a provision of the Migration Act,
(d)the Presiding Member did not think it should cause anyone any difficulty that is her hearing a case in which he is involved as a tax agent.
(e)The Presiding Member did not think that her hearing a case in which Mr Shi was involved as a tax agent should be seen as being anything that was going to affect the consideration of the question involving the applicant.
(f)The Presiding Member considered the persons before her should know of her involvement in case you became are (sic) of (that is the disclosure was in the nature of a precaution against disclosure from another source). (emphasis in original).
He further submitted:
… that there were several errors by the AAT in the manner that it dealt with the issue of the previous case concerning Mr Shi. The effect of these errors is that there is sufficient cause to warrant that the decision of the AAT be set aside and the matter remitted to the AAT for further consideration according to law.
The errors were as follows:
(a)failure to accurately disclose the matter which might give rise to consideration of disqualification,
(b)failure to ensure that the party most affected, that is the applicant, was aware of the substance of the disclosure and had an adequate opportunity to consider his position and whether he wished to instruct his representative to make an application in relation to the disclosure,
(c)expressing the personal views of the presiding member on whether or not the matter disclosed should cause any party any difficulty,
(d)expressing the personal views of the Presiding Member as to whether or not the matter disclosed would influence her consideration of the present case,
(e)expressing, albeit somewhat unclearly, the personal view of the Presiding Member that disclosure by the Presiding Member had been made as a precaution against the parties becoming aware of the matter disclosed from another source.
The errors are particularly applicable in the present case where the matter disclosed concerned the representative who was appearing in the AAT for the applicant – that representative not being a legal practitioner. There was an inherently greater risk of the applicant not receiving full full [sic] particulars of the disclosure.
Mr Chen submitted that although Senior Member Kelly disclosed the fact that she had previously made findings concerning Mr Shi, her disclosure was neither accurate nor full with the result that any waiver of his right to object to her hearing his review application was not an informed one. In this connection he referred to Senior Member Kelly’s reference to having considered Mr Shi’s registration as a “tax agent” and to her reference to the fact that the issue before the AAT in Mr Shi’s proceedings concerned the interpretation of a provision of the Migration Act. Mr Chen submitted that the prior proceedings involving Mr Shi concerned the latter’s appeal from decisions of the Migration Agents Registration Authority to cancel his registration as a migration agent and involved a lot more than just the interpretation of a provision of the Migration Act.
Mr Chen submitted that the question was whether he had been fully informed of the prior matter and had really had an opportunity to consider his position, notwithstanding that Mr Shi was present when the disclosure was made and would have known what Senior Member Kelly was talking about. He submitted that the disclosure should have been made to him personally and that, because he had no knowledge of the disclosure at or around the time it was made, any purported waiver was ineffective.
He further submitted that Senior Member Kelly’s disclosure to his migration agent had no validity because a migration agent is not in the same position as counsel and cannot bind his or her client unless the client gives instructions on the point. It was submitted that a migration agent’s position is different from that of counsel because the latter’s training is more relevant and provides competence appropriate to the issues.
Mr Chen submitted that as Senior Member Kelly considered that her prior hearings and determinations concerning Mr Shi were things which required disclosure at the commencement of the hearing, she needed not only to make proper disclosure but also to ensure that each party had no objection to her continuing to hear the matter. The question which Mr Chen put was whether a decision-maker errs by not standing aside if he or she has made a disclosure and has not obtained, from the parties entitled to make objection to him or her continuing to hear the matter, a waiver of any such objection.
Minister’s submissions
The Minister submitted that a reading of the transcript of the hearing before the AAT demonstrated that Senior Member Kelly conducted the hearing in a way which was obviously fair, even to the point of providing assistance to Mr Shi by giving him advice concerning how to take a witness through his evidence-in-chief in an effective way and advice on the sorts of issues which he might consider would be most usefully addressed by oral evidence. The Minister also identified passages where the AAT provided practical advice to Mr Chen’s representative concerning how his client’s case might be best advanced.
The Minister also referred to the AAT proceedings concerning Mr Shi and, while conceding that Senior Member Kelly had made adverse findings in respect of Mr Shi, submitted that a detailed consideration of Senior Member Kelly’s first decision demonstrated that a number of allegations against Mr Shi were rejected, a number of the adverse findings merely involved the acceptance of concessions made by
Mr Shi and the majority of the adverse findings went to Mr Shi’s practice management and compliance with the Code. After discussing a number of Senior Member Kelly’s findings concerning Mr Shi’s clients and files, the Minister conceded that Senior Member Kelly had found that Mr Shi was not a reliable witness and that he had made no attempt to comply with the Code. The Minister went on to stress that in her second decision concerning Mr Shi, Senior Member Kelly stated that she was not satisfied that Mr Shi was not a person of integrity or otherwise not a fit and proper person to give immigration assistance and that although her critical findings about his evidence were one factor to consider, there was no evidence that Mr Shi had acted dishonestly in his practice. She also noted that he enjoyed a number of very favourable references.
Consideration
I accept the evidence of Mr Chen and Ms Zhang that prior to the AAT’s determination the subject of these proceedings neither of them had been aware that Mr Shi had been involved in other proceedings before the AAT, and specifically before Senior Member Kelly, relating to his fitness to be a migration agent. However, for the following reasons, that lack of knowledge is of no importance in the determination of these proceedings.
AAT hearing
As already observed, the quality of the transcript of Mr Chen’s hearing before the AAT is problematical. Its accuracy was put in issue by the Minister’s submissions which were to the effect that Mr Su supervised Mr Shi in his advocacy on behalf of Mr Chen and that a number of comments attributed to Mr Shi must have originated from Mr Su. It is not necessary to reach firm conclusions on the particulars of the errors and inaccuracies which I conclude the transcript generally manifests concerning which of Mr Chen’s representatives was actually addressing the AAT at any particular time. It is sufficient to find that Mr Su was Mr Chen’s principal representative at the AAT hearing even if he did not conduct most of the advocacy.
As to Mr Su’s role, it was Mr Chen’s evidence that Mr Shi was his representative, not Mr Su. It was Ms Zhang’s evidence that she had found the company with which they were associated, Southern Hemisphere Consulting Pty Ltd (“Southern Hemisphere Consulting”), and it was to Mr Shi that she had given instructions, the implication being that Mr Su had no instructions or permission to act in the AAT proceedings. However, the evidence does not support a conclusion that it was only Mr Shi who acted for Mr Chen. Documents in the Court Book disclose that Mr Shi and Mr Su were named principals of Southern Hemisphere Consulting and were migration agents. Ms Zhang identified a number of letters reproduced in the Court Book which had been sent to the AAT by Southern Hemisphere Consulting over the name of Mr Su and it must be concluded that it was as a principal of that company that Mr Su corresponded with the AAT. Moreover, as already noted, Mr Su signed Mr Chen’s application to the AAT, identifying himself as the latter’s representative.
The evidence supports the conclusion that Mr Su’s role was at least constructively known to Mr Chen through Ms Zhang who, Mr Chen said, handled all the documents relating to the AAT review and whom he let deal with Southern Hemisphere Consulting. In this regard, Ms Zhang’s evidence was that the migration agents’ correspondence with the AAT, which was generally signed by Mr Su, was copied to her. She said that when she received one of the agents’ facsimiles and saw that it was signed by Mr Su, she inquired about the signatory and was told by Mr Shi that Mr Su was their solicitor. She saw his name on subsequent letters or facsimiles to the AAT but did not instruct Mr Shi to have Mr Su stop writing them. In the context of this correspondence and Ms Zhang’s enquiry concerning its author, it is significant that Ms Zhang said that Mr Shi was accompanied at the AAT hearing by someone else. Ms Zhang did not say that she queried or objected to the presence of the second person. Based on the transcript of the AAT hearing I conclude that this person was Mr Su.
Given Mr Su’s continued representation of Mr Chen through correspondence with the AAT and Ms Zhang’s knowledge of and acquiescence in this conduct, I find that Mr Su was authorised to act for Mr Chen in the AAT proceedings. The significance of this finding lies in the fact that it is not possible to say with any confidence whether it was Mr Shi or Mr Su who waived reliance, as the basis of an apprehended bias objection, on the matters disclosed by Senior Member Kelly. If it was Mr Shi, there is no doubt that he was authorised by Ms Zhang to act for Mr Chen. If it was Mr Su, for the reasons discussed above he too was authorised to act for Mr Chen. Whether Messrs Shi and Su’s authorities to act for Mr Chen were subject to any relevant limitations will be considered further below.
Apprehended bias
Mr Chen submitted that an applicable principle derived from Re JRL; Ex parte CJL (1986) 161 CLR 342 was to the effect that a judge should disqualify him or herself from hearing or continuing to hear a matter if the parties or the public entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues before the Court. He submitted that such an apprehension would be reasonable in the circumstances of this case. Mr Chen’s counsel also referred to an authority more appropriate to tribunal proceedings, Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, where it was said:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. (per Gleeson CJ, Gaudron and Gummow JJ at 434-435 [27]-[28])
Mr Chen submitted that it would have been reasonable for him as a member of the public to have had an apprehension that Senior Member Kelly might not bring an unprejudiced mind to the resolution of the issues in his proceedings because she had already formed an opinion on the qualities and capacities of Mr Shi. Although Mr Chen submitted that his affidavit corroborated this position, his subjective views can be of no assistance in determining this matter. The inquiry requires an objective assessment of the AAT’s conduct by reference to what a fair-minded and informed lay person would reasonably apprehend, not by reference to the subjective views of a party to the proceedings.
In his submissions, Mr Chen referred to the decision of the Full Court of the Federal Court in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 where the court said at [17] that the relevant apprehension is of a real and not remote possibility of a lack of impartiality. However, the Full Court also made it clear in that case that the fair-minded lay person’s apprehension had to be that the tribunal was predisposed towards a result. Their Honours said:
At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power. (at [20])
In Livesey v New South Wales Bar Association (1983) 151 CLR 288 the High Court said:
It is, however, apparent that … a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. (at 300)
Both Livesey and NADH of 2001 were concerned with the possibility that a tribunal might be perceived to be predisposed to a result because of its conduct, such as previously expressed views on witnesses or important evidence. In the context of this case, the question therefore is whether a fair-minded lay observer might reasonably apprehend that the ATT’s views of Mr Shi might cause it to not bring an impartial mind to the resolution of the question to be decided in Mr Chen’s case. This then turns attention to what Senior Member Kelly actually concluded about Mr Shi in the previous AAT proceedings.
Senior Member Kelly’s conclusions in the first part of Mr Shi’s proceedings did include adverse findings on his credibility. Nonetheless, in her second decision, which concluded Mr Shi’s proceedings, Senior Member Kelly found that he was not a person lacking integrity or otherwise not a fit and proper person to give immigration assistance. That is to say, notwithstanding the adverse findings which she had made in her initial decision concerning Mr Shi, Senior Member Kelly ultimately concluded that those findings were not sufficiently grave that she was willing to conclude, without more, that he lacked integrity or the necessary fitness to practise as a migration agent. She also made observations at [24] suggesting professional competence on Mr Shi’s part. The second judgment demonstrates that Senior Member Kelly had not taken an irrevocably negative view of Mr Shi and had, in fact, reached a conclusion which could not be said to be particularly adverse to him.
I am not of the view that a fair-minded lay person of the sort considered in Applicant H’s case would conclude that Senior Member Kelly might not have brought an impartial and unprejudiced mind to the resolution of Mr Chen’s review application simply because of her findings in the first stage of Mr Shi’s AAT proceedings. Moreover, Senior Member Kelly’s findings in the second part of Mr Shi’s case demonstrate that there is no basis to conclude that she held a particularly negative view of Mr Shi. I find that a fair-minded lay person would not reasonably apprehend that Senior Member Kelly’s opinion of Mr Shi at the conclusion of his own AAT proceedings might have caused her to not bring an impartial mind to the determination of Mr Chen’s review application.
Nor does the transcript of Mr Chen’s AAT proceedings support a conclusion that the fair-minded lay person would have perceived, in Senior Member Kelly’s conduct of the hearing, any prejudgment or disposition against Mr Chen or his representatives, including Mr Shi. Significantly, Mr Chen did not seek to support his allegation by pointing to any conduct on the part of Senior Member Kelly which might have suggested a predisposition. As the Minister pointed out in his submissions, Senior Member Kelly conducted the hearing in a fashion which was obviously fair, even to the point of providing Mr Shi with useful guidance about how to put his client’s case. Having regard to such matters and the AAT hearing transcript generally, I have not identified any conduct in the proceedings under review which would justify a conclusion that a fair-minded lay person might reasonably apprehend that Senior Member Kelly might not have brought an impartial mind to Mr Chen’s proceedings because she had already formed an opinion about the qualities and capacities of Mr Shi or indeed for any other reason.
As to the AAT’s reasons for decision in his case, again Mr Chen has not sought to support his allegation by pointing to any passages in the reasons which might be indicative of predisposition on Senior Member Kelly’s part. A review of those reasons does not disclose evidence of predisposition in the way that Senior Member Kelly dealt with the evidentiary material at her disposal. Rather, those reasons evidence a conscientious, logical and dispassionate consideration of the evidence and arguments which had been put before her. This cannot form the basis of a finding of apprehended bias.
For these reasons, the allegation of apprehended bias is not made out.
Was any waiver fully informed?
Generally
If, contrary to my finding at [57] above, the allegation of apprehended bias were found to have substance, it would be necessary to consider whether Mr Chen had waived reliance on such an argument. He did not dispute that an obligation to disqualify does not apply if there has been an informed waiver of reliance on potentially disqualifying matters: Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168 at 185; Vakauta v Kelly (1989) 167 CLR 568. In Najjar v Haines (1991) 25 NSWLR 224 Clarke JA observed, referring to Vakauta v Kelly, that a party who has the right to object to a decision-maker on the basis of apprehended bias may waive the right to appeal against an adverse decision if he or she fails to object despite awareness of the facts giving rise to the apprehension. His Honour continued:
It is obvious, however, that it is only a person who stands by and allows proceedings to continue with knowledge of those facts which give rise to the apprehension who will be found to have waived his right to object. As in all cases of waiver knowledge of the facts which are said to have been waived is essential. (at 241)
Adequacy of disclosure by Senior Member Kelly
The first thing to consider is whether, in her statement quoted above at [25], Senior Member Kelly made adequate disclosure of the matters in respect of which the alleged waiver was given. Mr Chen submitted that the disclosure was ineffective because it was inaccurate.
Mr Chen’s first submission was that in her disclosure statement Senior Member Kelly described Mr Shi’s previous AAT proceedings as ones concerning the latter’s registration as a tax agent. It should be noted that the disputed accuracy of the transcript is an important issue on this question in that the transcript appears to incorrectly record what was said about what sort of agents Messrs Shi and Su were. Senior Member Kelly’s disclosure commences at p.2 of the AAT transcript. It is worth quoting it for a second time here:
… it’s just appropriate that everybody know that Mr Shi, who is a tax agent, I had a case where I was considering his registration as a tax agent, which is currently – it’s gone to the High Court and the issues there are legal issues about the interpretation obviously a provision of the Migration Act, but I just thought that you should know that. I mean, Mr Shi knows that but if that causes anybody any difficult, my hearing a case in which he is involved as a tax agent. I don’t think it should because it’s a question of my making a decision about Mr Chen on the facts of his case and I don’t think that really should be seen as being anything that’s going to affect my consideration of that question, but I thought you should know in case you became are of – well, you should know those sorts of things. (emphasis added)
Earlier on the same page of the transcript the following appears:
Ms Kelly:
Good morning. Please be seated. I think my associate has just raised with you just a question – I think, Mr Shi, is it?
Mr Shi:
Mr Shi.
Ms Kelly:
Mr Shi. Who is –
Mr Shi:
Su.
Ms Kelly:
Mr Shi?
Mr Shi:
Yes.
Ms Kelly:
You’re the main advocate, are you? Are you the agent?
Mr Shi:
I’m the agent.
Ms Kelly:
Right. You’re acting for Mr Chen; is that correct?
Mr Shi:
Yes.
Ms Kelly:
And Mr Shi is assisting you, is he?
Mr Shi:
Yes, that’s right.
Ms Kelly:
You’re both tax agents?
Mr Shi:
Yes.
Ms Kelly:
Working the same organisation?
Mr Shi:
Yes, some company. (emphasis added)
In circumstances where Messrs Shi and Su were principals of Southern Hemisphere Consulting and were migration agents, it cannot be doubted that the question by the AAT “[y]our’re both tax agents?” has been erroneously transcribed or that a similar error was made in the transcription of Senior Member Kelly’s disclosure. For this reason, I am not willing to find that the disclosure was erroneous in the first respect alleged by Mr Chen.
Mr Chen secondly submitted that Senior Member Kelly had mischaracterized Mr Shi’s earlier proceedings before her by stating that they were concerned with the interpretation of the Migration Act. This submission misunderstands what Senior Member Kelly said. Her description of Mr Shi’s proceedings as being ones relating to the interpretation of the Migration Act was a reference to the appeal in the High Court, not to the entirety of the issues which had been before her in the AAT. Senior Member Kelly’s description of the High Court proceedings was, in fact, accurate: Shi v Migration Agents Registration Authority [2008] HCA 31 at [3], [24], [81] and [116]. For these reasons, I find that Senior Member Kelly’s disclosure was not inaccurate or inadequate in this respect.
In any event, it is obvious and was conceded by Mr Chen’s counsel that Mr Shi would have known what Senior Member Kelly was talking about and it is inconceivable that Mr Su did not also know. For these reasons, even if Senior Member Kelly’s disclosure had been deficient in the ways alleged by Mr Chen, that would be of no practical significance because his representatives were already aware of the true facts.
Failure to ensure applicant aware of disclosure
In para.41 of his written submissions, Mr Chen’s counsel said:
In White v The Minister for Immigration and Multicultural Affairs [2000] FCA 232, [2000] 96 FCR 511 the Full Court of the Federal Court considered a case where a claim of bias at first instance had not been pursued at the instigation of counsel. At [35] the Full Court said in relation to an application for leave to re-agitate the issue of bias on appeal We would not consider it appropriate or just, in the particular circumstances of this case, to fix the appellant with the consequences of what seems to us to have been an error of judgment by his former counsel in abandoning a point which had originally been taken, and which was plainly viable. Similarly, in the present case, it appears that the Representative did not take instructions from the client before expressly confirming that there was no objection on the part of the applicant to the Presiding Member continuing to hear the review. (emphasis in original)
In that case, Mr White applied to the Federal Court for judicial review of a decision of the AAT and sought an order that the Minister’s decision be set aside on the ground of actual bias. At that point he was unrepresented. Mr White subsequently instructed counsel who advised him that the claim of bias should not be pursued as it was unsupported by evidence. The application, which had been drafted by Mr White personally, was amended to delete the reference to actual bias.
After judgment was delivered in his case, Mr White became aware of the decision of the Full Court of the Federal Court in Jia v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556 where it was held that the Minister had acted with actual bias in relation to Mr Jia. Mr White appealed from his first instance decision and included a ground complaining of actual bias on the part of the Minister. As
Mr White’s trial counsel had discussed the first instance decision in Jia’s case with the Minister’s solicitor, it was submitted that Mr White was relevantly aware, at the time his case was dealt with at first instance, of the facts underlying the complaint of actual bias and that he should be deemed to have chosen deliberately not to pursue that issue. On appeal Mr White contended that he should be permitted to raise this allegation and rely on further evidence. He submitted that at the time of his application at first instance he had not personally been aware of any of the facts which tended to support a claim of actual bias on the part of the Minister and had not learnt of those facts until after the Full Court’s judgment in Jia had come to his attention.In resolving this aspect of the matter, the Full Court said:
We would not consider it appropriate, or just, in the particular circumstances of this case, to fix the appellant with the consequences of what seems to us to have been an error of judgment by his former counsel in abandoning a point which had originally been taken, and which was plainly viable. It would be wrong to permit the Minister's decision to deport the appellant to stand if evidence exists which demonstrates that decision to have been affected or induced by actual bias. (White v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 511 at 519 [35])
However, not only did this decision not stand for the proposition that the applicant’s personal ignorance of an arguable point known to his counsel would vitiate any purported waiver of the right to rely on that point on appeal, cf. R v Birks (1990) 19 NSWLR 677 per Gleeson CJ at 683G, but it was reversed on appeal in the High Court: Minister for Immigration & Multicultural Affairs v Jia; Minister for Immigration & Multicultural Affairs v White (2001) 205 CLR 507. The Full Court’s decision, relevantly, does no more than demonstrate that an admission or concession may be withdrawn by leave. In light of my finding above at [57], the need to consider granting such leave does not arise in this case.
It would only be necessary for the AAT to make such a disclosure to a litigant personally if he or she was unrepresented or if such representation as he or she had was limited in a way which prevented disclosure to that representative amounting to effective disclosure to the litigant. For the reasons set out below at [71]-[73], I do not find that such circumstances existed in this case. Consequently, the AAT was not obliged to make its disclosure to Mr Chen personally rather than to his representatives.
Could waiver by a migration agent bind the applicant?
Mr Chen pointed to no authority for the proposition that a migration agent is not in the same position as counsel and is unable to bind his or her client unless that client gives instructions on the point in question. In particular, the Court was not taken to any authority which holds that in administrative proceedings counsel, as agent for a party, is relevantly in a position different from any other agent.
The evidence supports the conclusion that Mr Shi was authorised to communicate with the AAT on Mr Chen’s behalf. Further, Ms Zhang knew that Mr Su was communicating with the AAT on her husband’s behalf. She did not seek to prevent him from doing so. I conclude that Mr Su had authority to make those communications. Further, both men appeared for Mr Chen at the AAT hearing and it has not been suggested that they were not authorised to do so. Indeed, the facts support the conclusion that they were: the Tribunal hearing commenced before Mr Chen appeared by audio-link and Messrs Shi and Su made their appearances at the commencement of the hearing. Ms Zhang was present to witness Mr Shi and Mr Su appearing before the AAT before her husband appeared by telephone. Although she could not understand what was being said, Ms Zhang can have had no doubt that the hearing had commenced or that Messrs Shi and Su were performing at least some aspect of their representational duties. Further, it has not been suggested that Messrs Shi and Su’s authority was subject to any relevant limitation or exceptions. Given Ms Zhang’s inability to comprehend the language in which the proceedings were conducted and Mr Chen’s presence overseas, appearing at the AAT hearing by telephone and for only a limited period, it cannot be inferred that there were any such limitations or exceptions to Messrs Shi and Su’s authority to represent Mr Chen.
In such circumstances, I conclude that Messrs Su and Shi were authorised to conduct Mr Chen’s proceedings in the way they considered most appropriate and that their authority extended to waiving reliance on the matters disclosed by Senior Member Kelly.
Senior Member Kelly erred by not obtaining the parties’ consent to hearing the matter
Mr Chen submitted that a question arose as to whether a decision-maker errs by not standing aside if he or she has made a disclosure of matters which might justify disqualification and has not obtained, from the parties entitled to make objection to him or her continuing to hear the matter, a waiver of any such objection. It should be noted at this point that it was not submitted that a tribunal’s presiding member should approach such an issue any differently than would a judge and, in respect of questions of disclosure, Mr Chen submitted that the principles applicable to a judge were equally applicable to a tribunal member.
Mr Chen’s submission appears to add a gloss to the conclusions reached by Samuels JA in Barton v Walker [1979] 2 NSWLR 740, Reynolds and Glass JJA agreeing, concerning the proper procedure to follow when the possibility of disqualification arises, including the principal role of the decision-maker and the limited role of the litigants in such circumstances. In Barton v Walker Samuels JA said at 748 that it is not formally correct to apply to a judge that he or she disqualify himself or herself. His Honour continued:
It is … to my mind, a matter of real difficulty to conceive of an order directed by the judge to the judge forbidding himself to hear the case; at least in the absence of statutory regulation. Moreover, there would appear to be no way of enforcing such an order, since committal or sequestration of property … can hardly be regarded as appropriate remedies to be enforced against a judge for disobedience of his own order … The further difficulty encountered is that of the judge acting as judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate? (at 749)
His Honour concluded:
These considerations, in my view, clearly show that a motion to disqualify a judge of the Supreme Court is not cognizable. The present informal practice is sensible and adequate; the absence of complaint by the profession or by law reformers tends to show that it has not been abused. (at 750)
The informal practice to which Samuels JA referred echoes what occurred before the AAT in this case. That is the circumstance where a judge thinks it unnecessary to disqualify himself or herself of his or her own motion but discloses the relevant facts to counsel, asking them to obtain instructions concerning whether their clients object to the judge sitting and, if objection is taken, the judge heeds the objection and does not sit (at 749).
Of course, in this case Mr Chen’s representatives made no objection to Senior Member Kelly proceeding to hear his application which is, no doubt, why this submission was framed as it was. However, Mr Chen’s proposition is misconceived as it assumes that a judge’s decision on disqualification ultimately depends on the opinions of the parties. A judge will decide for himself or herself whether disqualification is the proper course and does not require the consent of all parties to hear and determine a matter. In Bainton v Rajski (1992) 29 NSWLR 539, Mahoney JA said:
It is accepted that justice must be done in fact and that the appearance of justice must be maintained. But that, and particularly the latter, does not require that, if a party alleges or even believes in the disqualifying facts alleged, the judge should withdraw. If that were so, the administration of justice and the rights of other parties would be governed by the allegation of or the belief in facts, however dishonest, paranoiac, unbalanced or honestly wrong. However, the alternative, the trial of the contested facts, would be equally unacceptable. The contest could hardly be determined by the judge himself. (at 541)
His Honour further said:
Barton v Walker establishes two things: that it is, in principle, for the judge in question to determine whether he should hear a particular proceeding; and that that decision may be made without formalities such as a motion for his disqualification, the hearing of evidence, or the like. (at 544)
Disclosure is made in order to obtain assistance on the question of whether grounds exist for disqualification (absent waiver), not in order to obtain a party’s consent: Dovade at 192 [105]. Because a tribunal does not need a party’s consent in order to proceed to hearing, a representative’s failure to take instructions on a disclosure does not, without more, invalidate a decision-maker’s decision to sit after having made a disclosure of potentially disqualifying matters.
Further, the mere fact that a party objects to a tribunal member proceeding to hear and determine a matter is not sufficient to require the decision-maker to disqualify himself or herself: Re JRL; Ex parte CJL, per Mason J at 352; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at 348 [19], [20]. Again, a representative’s failure to take instructions on a disclosure, which may lead to the client’s loss of the right to make objection, does not invalidate a decision-maker’s decision to sit rather than to disqualify himself or herself. Even if the representative had been instructed to make objection, the simple fact of that objection would not have determined whether the decision-maker sat.
Ultimately, the matter will be determined not by the parties’ objections or lack of consent but by the opinion of the fair-minded lay person. A tribunal will not err by hearing and determining a matter unless a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the tribunal might not bring an impartial mind to the resolution of the question to be decided. As stated earlier in these reasons, that is not this case.
AAT erred by expressing personal views
Mr Chen submitted that the AAT’s conduct demonstrated, amongst other errors, the following errors:
(c)expressing the personal views of the presiding member on whether or not the matter disclosed should cause any party any difficulty,
(d)expressing the personal views of the Presiding Member as to whether or not the matter disclosed would influence her consideration of the present case,
(e)expressing, albeit somewhat unclearly, the personal view of the Presiding Member that disclosure by the Presiding Member had been made as a precaution against the parties becoming aware of the matter disclosed from another source.
The first two of these submissions reflect the practice referred to by Samuels JA in Barton v Walker and cited above at [75]. As his Honour’s reasons make clear, the expression of a view by a judge when raising the possibility of disqualification is not erroneous or objectionable.
As to the third submission, the AAT’s comment amounted to no more than the expression of a prudent concern that the issue of Mr Shi’s previous AAT proceedings should be considered at the outset of Mr Chen’s proceedings, rather than emerge for debate at a later stage and risk the termination of part-heard proceedings at that point. No error is disclosed by the AAT making the statement it made.
Conclusion
Jurisdictional error on the part of the AAT has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 24 November 2009
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