EVS19 v Minister for Immigration - [2020] FCCA 1279

FEDERAL CIRCUIT COURT OF AUSTRALIA

EVS19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1279

Catchwords:
MIGRATION – Protection visa – whether the Tribunal failed to accord the applicant procedural fairness when determining whether the applicant established compelling and compassionate circumstances for the grant of a visa – whether the second respondent failed to carry out the review required by the Migration Act 1958 when determining whether the applicant established compelling and compassionate circumstances for the grant of a visa – whether there is a reasonable apprehension of bias on the part of the second respondent – legal unreasonableness – whether jurisdictional error made out – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424(1), 424AA, 36(2), 5H, 5J

Migration Regulations 1994 (Cth), r 2.03A(3)

Cases cited:

AXL17 v The Minister for Immigration and Border Protection (No 2) (2019)

FCA 778

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183

CLR 273

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2004] 144 FCR 1

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

FCA 668

Singh v Singh [2007] NSWSC 1357

Applicant:

EVS19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3202 of 2019

Judgment of:

Judge Humphreys

Hearing date:

22 May 2020

Date of Last Submission:

22 May 2020

Delivered at:

Parramatta

Delivered on:

22 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Sivaguru

Solicitors for the Applicant:

Parramatta Lawyers

Counsel for the Respondents:

Ms Zinn

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The application is dismissed.
The applicant to pay the first respondent’s legal costs fixed in the amount of $5400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3202 of 2019

EVS19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

AS CORRECTED

Introduction

The applicant is a citizen of India. The applicant first entered Australia on 8 September 2009 on a Student visa as a member of a family unit, along with his then-wife, Ms RG. Ms RG, held a substantive Student visa.
Following the breakdown of their relationship, the applicant and Ms RG were divorced. Ms RG advised the Department of Home Affairs (“the Department”) of the divorce. As a result, the Department cancelled the applicant’s Student Partner visa on 31 August 2011. The applicant then remained within Australia, as an unlawful non-citizen.
In September 2013, the applicant applied for a further Partner visa on the basis of a new relationship with a Ms P. That application was refused on 28 August 2014.
The applicant appealed to the Administrative Appeals Tribunal (“the Tribunal”), but withdrew that appeal in July 2015, after his relationship with Ms P ended.
The applicant then applied for a Protection visa on 4 August 2015. At an interview on 9 November 2016, the applicant advised that he had married a third woman, an Australian citizen, on 17 February 2015 and had a child from that relationship.
On 28 November 2016, a delegate of the Minister for Immigration (the delegate”), refused to grant the Protection visa. The applicant then sought merits review in the Administrative Appeals Tribunal again.
In a decision dated 31 October 2019, the Tribunal affirmed the decision not to grant the applicant a Protection visa.
The applicant now seeks judicial review of the Tribunal’s decision.

The Administrative Appeals Tribunal’s Decision

Given the grounds of appeal, it is not necessary to completely summarise the Tribunal decision.
In relation to the claim for a Protection visa, the applicant stated that the parents of his first wife blamed him for torturing her and ending their relationship. The first wife’s parents were very politically influential and had links with underground criminals who could kill the applicant on their orders.
The applicant claimed that these people went to his mother’s house in February 2011. The assailants were armed with swords and started to destroy household items. Supporting statements were provided by the applicant’s brother-in-law and another person. The applicant claimed that he cannot return to India because of the threats and cannot relocate within India because his persecutors are very politically influential.
At paragraph 17 of its decision, the Tribunal notes that the applicant appeared before it on 23 October 2019 to give evidence. He was accompanied by his current wife, Ms PS; and his nephew Mr KK, both of whom gave evidence. The Tribunal noted that the applicant’s first wife has subsequently remarried and is now living in Australia. During the course of the hearing, the Tribunal put various information to the applicant under section 424AA of the Act for him to comment upon.
Relevantly, at paragraph 35 of its decision, the Tribunal recorded that the applicant’s nephew, Mr KK, gave evidence. Mr KK stated that he came to Australia on a Visitor’s visa and is now applying for a Protection visa. Mr KK gave evidence that the applicant’s first wife’s family had broken into the applicant’s family home in the Punjab, and threatened the applicant.
At paragraphs 39 through to 44 of its decision, the Tribunal sets out the criteria for the granting of a Protection visa, including the criteria under s 36(2)(a) and s 36(aa), as well as s 5J(1) of the Migration Act 1958 (Cth) (“the Act”). No mention is made of any requirement to consider compelling and compassionate circumstances under r 2.03A(3) of the Migration Regulations 1994 (Cth) (“the Regulations”).
The Tribunal was not satisfied that the applicant had been threatened in India by any person or any group and was not satisfied that he fears any group or person in India, should he be required to return there. This conclusion was based on an analysis of inconsistencies contained with the applicant’s evidence, along with the evidence given by his wife and nephew. The Tribunal formed a view that the applicant’s claims were simply not credible and that the applicant did not meet the criteria in either s 36(2)(a) or s 36(aa) of the Act to justify the grant of a Protection visa.
Three grounds of appeal are relied upon. Extensive particulars are provided. The grounds, less particulars, are as follows:
Ground One
A second Tribunal (the Tribunal) failed to accord the applicant procedural fairness when determining whether the applicant established compelling and compassionate circumstances for the grant of a visa under regulation 2.03A of the Migration Regulations 1994.
Ground Two
The second respondent failed to carry out the review required by the Migration Act 1958 when determining whether the applicant established compelling and compassionate circumstances for the grant of a visa under regulation 2.03A(3) of the Migration Regulations.
Ground Three
There is a reasonable apprehension of bias on the part of the second respondent.

The Applicant’s Submissions

Following the applicant’s marriage to Ms PS, an Australian citizen, on 17 February 2015, his wife is now pregnant with their second child. In relation to ground 1, it was submitted by Counsel for the applicant, that there was a primary requirement for the Tribunal to treat the best interests of the applicant’s children as a primary consideration and failed to do so. The applicant had a legitimate expectation that the Tribunal would act consistently with the Convention on the Rights of the Child. Accordingly, the applicant was denied procedural fairness. It is contended that Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 (“Teoh”) supports this submission.
In relation to ground 2, it was submitted by Counsel for the applicant, that the Tribunal did not deal with a matter that clearly emerged from the materials, being that the applicant’s pregnant wife and child would have difficulties accompanying him if he was refused a Protection visa and required to return to India. It was submitted that the Tribunal’s function in this case included the requirement to have regard to the applicant’s particular personal circumstances under r 2.03A(3) of the Regulations. Failure to do so is a jurisdictional error.
Ground 3, alleges a reasonable apprehension of bias. The basis for this includes inviting an unintended and unauthorised witness to give evidence, the applicant’s nephew, Mr KK. It is further alleged that the Tribunal member prejudged his determination and the applicant was not given an adequate opportunity to address the Tribunal member’s concerns. For example, see page 54 of the transcript at lines 4 to 6 and other instances.

The First Respondent’s Submissions

It is submitted Pby Counsel for the respondent, that ground one contends that the Tribunal failed to afford the applicant procedural fairness in determining whether or not he established compelling and compassionate circumstances for the grant of a visa under r 2.03A(3) of the Regulations. It is submitted by Counsel for the respondent, that this ground is fundamentally misconceived. There was no Tribunal decision concerning r 2.03A(3) of the Regulations, as that provision has no relevant application to the Tribunal’s refusal to grant the applicant a Protection visa.
Counsel for the applicant also asserts that the Tribunal did not advise the applicant that it was not going to treat the best interests of his child or children as a primary consideration and did not invite him to comment on this. There was no obligation on the Tribunal to consider the best interests of the child as a primary consideration and, therefore, no obligation on the Act arose or under any other relevant case law.
The applicant’s submissions made reference to the case of Teoh. This case is not relevant as Teoh concerned a decision to cancel a person’s visa whereas, in this case, it was required to consider whether or not the applicant met the criteria in s 36(2) of the Act for the grant of a Protection visa. In that statutory context, the best interests of the children did not arise. (See also AXL17 v The Minister for Immigration and Border Protection (No 2) (2019) FCA 778).
A second ground contends that the Tribunal failed to carry out the review required under the Act when determining whether the applicant established compelling and compassionate circumstances under r 2.03A of the Regulations. The applicant’s submissions do not elaborate on this ground. For the same reasons as set out in relation to ground 1, this contention is misconceived. The applicant’s particulars refer to the matter of NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] 144 FCR 1 (“NABE”).
The applicant contends that the Tribunal failed to consider that the applicant’s wife and children were Australian citizens and would be unable to travel to India if the applicant’s Protection visa was refused. The particulars allege that this constituted a compelling and compassionate circumstance. Again, it is submitted by Counsel for the respondent, that the applicant is conflating the requirements for the grant of a partner visa, which may allow the consideration of compelling and compassionate circumstances, with the statutory criteria for the grant of a Protection visa which do not.
To the extent that the ground alleges that the Tribunal failed to consider an integer of the claim made by the applicant in relation to the wife and child, it has no proper basis. The Tribunal expressly considered the applicant’s evidence that he remarried and had a child from that relationship. It found there was no information which would indicate the fact that the applicant had remarried and had a child of that relationship would flow as to whether or not he had a well‑founded fear of persecution or a real risk of harm.
Ground 3 alleges a reasonable apprehension of bias on the part of the Tribunal, in particular, the applicant contends the Tribunal’s conduct of the hearing by inviting an unintended or unauthorised witness to give evidence namely, the applicant’s nephew and as a result, jeopardised the hearing.
It is neither apparent nor explained why the nephew was unintended or unauthorised. Whilst the applicant did not request in his completed response to a hearing invitation that the Tribunal take evidence from the nephew, s 424(1) of the Act, confers “a general power” on the Tribunal to “get any information it considers relevant”. The only limitation on that power is that the Tribunal must have regard to the information in making its decision.
It is not explained by the applicant, how the taking of oral evidence from the nephew or his evidence provided that establishes or supports an allegation of apprehended bias. The particulars provide no material on which the allegation of bias can be clearly proven. The applicant’s submission cites Singh v Singh [2007] NSWSC 1357 (“Singh”) at [8] – [14], however, it is unclear how that extract is of any relevance as the passages relate to the hearsay rule in the context of giving affidavit evidence and have no relevant application in the present matter.
The applicant’s submissions also contend that the Tribunal erroneously found the applicant’s claims are not credible, even though the applicant’s nephew stated that the attack on the applicant’s mother occurred in 2011. The submission suggests that this was the entire basis for the Tribunal’s findings that the applicant was not credible. This is not correct. The Tribunal relied on significant inconsistencies, which it outlined in detail at paragraphs 50 to 60 of its decision, in finding the applicant’s claims were not credible and that his mother’s evidence was not truthful.
In particular, the applicant refers to various parts of the hearing transcript and claims they support an assertion that the Tribunal had prejudged its determination in the matter. Each of the references cited, record instances where the Tribunal unambiguously put to the applicant doubts and concerns it had, about the credibility of his evidence. However, the Tribunal repeatedly indicated it had not made up its mind on these matters and explained to the applicant that it was required to put these concerns or information to the applicant for comment. The robust and forthright testing of the applicant’s claims do not sustain any finding of apprehended violence.
The submissions also allege that the Tribunal did not give the applicant an adequate opportunity to address the member’s concerns. This claim is unfounded. It is not evident on any reading how the allegation might establish a reasonable apprehension of bias. The transcript of the Tribunal’s decision indicates that it put particulars of information to the applicant pursuant to s 424AA of the Act. It is clear that the applicant was afforded the opportunity to comment on the information adverse to him and, accordingly, ground three cannot succeed.

Consideration

The first and second grounds can be dealt with together, conveniently. Each proceeds on a fundamental misapprehension that there was a requirement by the Tribunal to consider whether or not there was a compelling or compassionate circumstance for the grant of a visa under r 2.03A(3) of the Regulations.
It was submitted by Counsel for the applicant, that these include the legitimate expectation that the best interests of the applicant’s children will be taken into account. That submission cannot and could never succeed. The applicant was being considered for a Protection visa. The definition of a refugee and the meaning of a well-founded fear of persecution for the grant of a Protection visa are set out in sections 5H and 5J of the Act.
Section 36(2) of the Act sets out the criteria that the applicant must satisfy for the grant of a Protection visa. Those criteria are an exhaustive statement of the relevant considerations. Nowhere in those sections is there any mention of any requirement to consider the best interests of any applicant’s children.
The Court agrees with the respondent that the case of Teoh can be distinguished as it deals with a decision to cancel a visa and not grant one, as in the current case. In relation to the reference to NABE, that case concerns the granting of a Partner visa, which may allow for the consideration of compelling and compassionate circumstances, which is not the case in relation to the current situation, which was a Protection visa. Both of these cases have no applicability in the current case. Grounds 1 and 2 do not make out any jurisdictional error.
In relation to ground 3, the particulars assert that the Tribunal was biased in that it conducted the hearing by inviting an unintended or unauthorised witness to give evidence, namely, the applicant’s nephew, Mr KK, and this jeopardised the hearing.
In the notice to the Tribunal, the nephew was referred to by the applicant as a support person. Reference was made to the fact that the applicant’s wife would give evidence. A perusal of the transcript hearing indicates at page 6 the Tribunal member noted that the applicant’s wife was going to give evidence and she would need to wait outside the Tribunal room until it was time for her to give evidence. At page 65 of the transcript, the applicant’s wife leaves the room after giving evidence and the applicant’s cousin enters the room. The applicant’s cousin, is sworn in and proceeds to give evidence.
It is not clear from the transcript whether or not the applicant indicated at any point of time if his nephew was present to give evidence. What is clear is that the nephew never objected to giving evidence. No affidavit evidence has been provided from the applicant or the nephew as to the circumstances by which the nephew came to give evidence. No evidence is provided from the nephew as to how he came to give evidence.
In the absence of some evidence to the contrary, the Court is left in the position whereby an assertion is made on behalf on the applicant that the nephew was unintended or unauthorised without any apparent explanation. It may be during the course of the hearing the applicant decided to have the nephew give evidence. The Court simply does not know and this does not, of itself, provide a basis for an allegation of bias.
As Counsel for the respondent notes, s 424(1) of the Act gives the Tribunal a general power to get information it considers relevant. The only limitation on that power is that the Tribunal must have regard to that information in making its decision.
The applicant’s complaint is framed in terms of an apprehension of bias. This is on the basis that the Tribunal referred to significant inconsistencies in the evidence of the applicant. As pointed out by the respondent, the Tribunal never found that the evidence of the applicant and his nephew about the timing of the attack on the mother was inconsistent. In the absence of some evidence, that the Tribunal undertook a procedure which was unauthorised, and none has been provided, the Court cannot accept the claim that the evidence of the nephew somehow affected the matter from the point of view of bias.
The Court has also looked at the transcript in relation to the areas complained about by the applicant which he said are evidence of a prejudgment by the Tribunal member. The Court considers the questioning by the Tribunal in relation to the inconsistencies it found in the evidence and putting those inconsistencies to the applicant, pursuant to s 424AA of the Act, was entirely appropriate.
The Court has not been shown any material which would lead the Court to a conclusion that the Tribunal was biased against the applicant and/or prejudged the matter. The Court is not satisfied that the decision-maker, being the Tribunal, approached its task other than, with a mind open to persuasion. [See SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668] at paragraph 38.

Finally, in relation to the issue of the relevance of Singh, as was pointed out during the course of the submissions, the Tribunal is not bound by the rules of evidence. That case has no applicability in this matter. Ground three cannot succeed.

Conclusion

Accordingly, the application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 4 June 2020

CORRECTIONS:

Paragraph 15 – delete “section” add “s”
Paragraph 20 – add “by Counsel for the respondent”.
Paragraph 21 – add “Counsel for”.
Paragraph 22 – delete “section” add “s”
Paragraph 31 – delete “section” add “s”
Paragraph 33 – “Counsel for the applicant”.
Paragraph 40 – delete “sec” add “s”