Huang v Minster for Home Affairs
[2019] FCCA 1764
•27 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUANG v MINSTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1764 |
| Catchwords: MIGRATION – Temporary Work (Skilled) visa – applicant does not hold approved nomination for position at time of hearing before Tribunal – where Tribunal refused adjournment – where Tribunal had impugned credit of applicant in a related proceeding – judicial review – procedural fairness – whether refusal to adjourn was unreasonable – legal unreasonableness – apprehended bias – jurisdictional error – where Tribunal identified applicable principles and undertook detailed consideration of facts – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.65, 140GB, 359A, 363, 477 Migration Regulations1994 (Cth), reg.2.72, sch.2 cl.457.223 |
| Cases cited: Adhikaree v Minister for Immigration and Border Protection [2014] FCCA 621 Adhikaree v Minister for Immigration and Border Protection [2014] FCA 564 ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Chhetri v Minister for Immigration and Border Protection [2015] FCCA 3101 Chhetri v Minister for Immigration and Border Protection [2016] FCA 734 Deputy Commissioner for Taxation v Cumins (2008) 101 ALD 78 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Isbister v Knox City Council [2015] HCA 20 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 Nutritional Choice Australia Pty Ltd v Minister for Home Affairs [2019] FCCA 1754 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Vakauta v Kelly (1989) 167 CLR 568 Westpac Banking Corporation v Carver (2003) 126 FCR 113 |
| Applicant: | YUNLING HUANG |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1884 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 9 July 2018 |
| Date of Last Submission: | 9 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms C. Symons |
| Solicitors for the Applicant: | Tahota Law Firm |
| Counsel for the Respondents: | Mr A. Yuile |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The amended application filed on 12 June 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1884 of 2016
| YUNLING HUANG |
Applicant
And
| MINSTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 12 June 2018, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 August 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant (Ms Huang) a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (Act).
This application for judicial review was heard immediately after a related proceeding.[1] The applicant in the other proceeding, Nutritional Choice Australia Pty Ltd (Nutritional Choice), applied both for approval as a standard business sponsor and for approval of a nominated occupation in respect of which Ms Huang was the nominee.
[1]Nutritional Choice Australia Pty Ltd v Minister for Home Affairs & Anor: MLG834/2016.
The same Tribunal member decided the applications for merits review in both the applications.
Ms Huang contends that her decision was affected by jurisdictional error on the ground of apprehended bias arising from the Tribunal’s decision to proceed to affirm the delegate’s decision, rather than to accede to her applications for an adjournment of the hearing pending the determination of: (a) an application for judicial review by Nutritional Choice of the Tribunal’s decision affirming a decision to refuse its application for approval of a nomination occupation; and (b) a new nomination application lodged by Nutritional Choice on 27 June 2016.
I have concluded that Ms Huang’s application should be refused. Ms Huang did not hold an approved nomination for her position with Nutritional Choice when she appeared at the hearing before the Tribunal. The proceeding had been on foot for some time. Her applications to defer the hearing for a further period were made in the circumstance where she acknowledged that she held no approved nomination. The Tribunal identified the applicable legal principles and undertook a detailed consideration of the material facts. The decision was one which was reasonably open to the Tribunal. The adverse credit findings made in relation to Ms Huang in the application by Nutritional Choice had no, or no sufficient, bearing on the issues that were before the Tribunal on the hearing of her application. These reasons for judgment should be read with and incorporate the reasons for judgment in that proceeding.[2]
[2] [2019] FCCA 1754.
Background
Although there is a significant overlap in the chronology of events, it is convenient to isolate some features relevant to Ms Huang’s application.
On 21 September 2014, Nutritional Choice applied for approval as a standard business sponsor and for approval of a nominated occupation.
On 23 September 2014, Ms Huang, who is a Chinese national, applied for a Long-Stay Temporary Work (Skilled) (subclass 457) visa (visa). The application was for a stay for a period of 48 months. The application identified Nutritional Choice as her sponsoring employer and Mr Eric Guo as a point of contact for her application.
On 20 October 2014, the then Department of Immigration and Border Protection made a request of Ms Huang for further information. Although she was afforded 28 days to respond to that request it appears that she did not do so.
On 19 November 2014, the application by Nutritional Choice for business sponsorship approval was refused. This decision was not the subject of any application for review. As a result, the nomination application was unable to be assessed.
On 21 November 2014, the Department invited Ms Huang to comment on information relating to her visa application; namely, that she required an approved nomination. The Department advised that Nutritional Choice did not have an approved nomination and, as a result, her application was unlikely to be successful.
On 25 November 2014, Nutritional Choice re-applied for approval as a standard business sponsor and of a nominated occupation (Nomination application). This application listed Ms Huang as the nominee for the role of Sales and Marketing Manager. As to those applications:
a)on 19 December 2014, the application for approval as a standard business sponsor was approved; and
b)on 20 December 2014, a delegate of the Minister refused the further Nomination application. The Minister’s delegate was not satisfied that the position for which Nutritional Choice had given a nomination was genuine, and for that reason found the criterion prescribed by reg 2.72(10)(f) of the Migration Regulations1994 (Cth), (Regulations) had not been met.
Clause 457 of Sch 2 of the Regulations contained criteria applicable to the grant of the visa. Relevantly, par 457.223(4)(a) prescribed that at the time of decision, the nomination of an occupation in relation to the applicant had been approved and had not ceased. As the Nomination application by Nutritional Choice had been refused, Ms Huang was unable to satisfy the criteria prescribed by par 457.223(4)(a).
Relevantly, reg 457.223(4) identified criteria of which the Minister was to be satisfied including:
457.223Standard business sponsorship
(1)-(3). . .
(4) The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)the approval of the nomination has not ceased as provided for in [reg 2.75]; and
(aa) – (f). . . (emphasis added)
The delegate’s decisional record stated that as Ms Huang was not the subject of an approved nomination, the criteria prescribed by para 457.223(4)(a) had not been met. Her visa application was refused.[3]
[3] Act, s 65.
On 20 December 2014, a delegate of the Minister refused the applicant’s visa application. In the decisional record, the delegate attached a copy of reg 457.223(4). Ms Huang was on notice of that issue.
On 7 May 2015, the Tribunal found that it had no jurisdiction in respect of an application made on 5 January 2015 by Ms Huang for a review of the delegate’s decision.[4] On 10 February 2016, an Order was made quashing the Tribunal’s decision and remitting the matter to be determined according to law.
[4]The Tribunal found that it had no jurisdiction on the basis there was no reviewable MRT decision as at the time the review application was made.
Before those events had occurred, on 5 January 2015, Nutritional Choice applied for review of the delegate’s decision to refuse its Nomination application. The Tribunal decided not to list Ms Huang’s remitted application for review pending a merits review of the decision refusing to approve Nutritional Choice’s Nomination application.
On 16 March 2016, the Tribunal affirmed the decision to refuse the Nomination application made by Nutritional Choice. On 17 March 2016, the Tribunal notified Nutritional Choice of that decision.
On 18 March 2016, the Tribunal invited the applicant to comment on or respond to information that the Tribunal had affirmed the decision to refuse the Nomination application made by Nutritional Choice. The invitation was given because the Tribunal evidently formed the view that this information might be the reason or a part of the reason for affirming the delegate’s decision: Act, s 359A. In particular, it stated:
Subject to any comments or respond to make, if the Tribunal relies on this information in making its decision, it will make a finding that Ms Yunling Huang does not meet the criteria in cl.457.223(4)(a) for the grant of the Visa on the Visa application would be refused. If so, it would be a reason or part of the reasons for affirming the decision under review.
Ms Huang was asked to respond by 1 April 2016 and told that if she could not do so, she could request an extension of time. Ms Huang was further told that if she did not respond, the Tribunal may make a decision on the review without taking any further action to obtain her views and:
You will also lose any entitlement you might otherwise have had under the [Act] to appear before us to give evidence and present arguments.
The letter sent by the Tribunal on 18 March 2016 was addressed to Ms Huang’s lawyer. No response was received by 1 April 2016. Nor was any request made for an extension of time. However, as appears from the Reasons, Ms Huang was aware of this letter. Instead, in the ensuing period, Ms Huang made three requests for an adjournment.
The requests for an adjournment were made in the context that Ms Huang had not responded by 1 April 2016 to the invitation to comment that had been sent to her on 18 March 2016.
The first request was made on 15 April 2016 when her lawyers provided some information in response to the invitation to comment stating that:
a)with one current exception, the visa applicant met all the necessary elements for the grant of a 457 visa;
b)the only element not yet met by Ms Huang was that an approved nomination be in place;
c)Nutritional Choice had made an application for judicial review by the Federal Circuit Court in respect of the Tribunal’s decision to affirm the delegate’s decision to refuse the Nomination application;
d)Ms Huang did not waive her right to a hearing;
e)Ms Huang requested that the listing of any hearing be delayed until the application for judicial review was finalised; and
f)failure to not delay would prejudice to Ms Huang’s application.
As appears from the Reasons, the Tribunal decided to address the request for an adjournment at the hearing.
On 21 April 2016, Nutritional Choice filed an application for judicial review of the Tribunal’s decision, together with an application for an extension of time under s 477(2) of the Act.
On 20 May 2016, the applicant was invited to appear before the Tribunal on 22 June 2016 to give evidence and present arguments relating to the issues arising in her case. The applicant appeared before the Tribunal on that date and the hearing was conducted with the assistance of a Mandarin interpreter. At the hearing, Ms Huang provided the following documents: (a) change of contact details; (b) IELTS test report form; (c) income statement; (d) tax invoices; and (e) an unexecuted annotated draft of a process and supply agreement between Nutritional Choice and Fonterra Foods Pty Ltd.
The second request for an adjournment was made at the hearing.[5] Notably, while her migration agent and lawyer did not attend, Ms Huang agreed that the hearing could proceed, but then requested it be deferred either until determination of the application for judicial review made by Nutritional Choice, or until after a directions hearing in that application that was scheduled for 14 September 2016.[6]
[5] Reasons dated 5 August 2016 (Reasons), [11].
[6] Reasons, [7], [11].
The Tribunal addressed Ms Huang’s requests to postpone the hearing and defer the making of a decision in some detail: Reasons, [9]-[30]. In addressing that request, the Tribunal referred to a number of authorities including Minister for Immigration and Citizenship v Li.[7] The Tribunal examined the history of the application, including that it had consciously not listed Ms Huang’s application until it had determined a merits review of the Nomination application: [15].
[7] Reasons, [13]: (2013) 249 CLR 332.
Ms Huang’s right to a hearing had been lost due to the late response to the s 359A notice. Ms Huang confirmed that, while her lawyer had been on holidays at the time, he had sent her text messages in relation to that notice: [15]. The Tribunal considered that as the later response from her lawyer sent on 15 April 2016 contained no detailed information, it was thought appropriate to address her application and also her request for an adjournment: [16]. The Tribunal considered the documents produced by Ms Huang at the hearing, finding that none of them demonstrated there was an approved nomination in respect of her nominated position: [17]. It also observed that Ms Huang had been on notice since 20 December 2014 that she did not satisfy the criterion in cl 457.224(4)(a), and that she had given evidence at the hearing that no further nomination had been lodged: [18]. The Tribunal noted that after Ms Huang’s application for review had been remitted, a hearing had again been deferred pending determination of the merits review of the decision to refuse Nutritional Choice’s nomination application: [19].
The Tribunal considered the request to defer the hearing was essentially a request to adjourn the matter indefinitely by reason of the degree of uncertainty as to when the judicial review proceeding brought by Nutritional Choice would be finalised: [20]. The Tribunal noted Ms Huang’s evidence that the substantive hearing of the application for judicial review made by Nutritional Choice may not be listed for some months after the directions hearing, and that further delay may ensue while judgment was prepared, including any appeal: [20]-[21].
The Tribunal was mindful of its obligations to conduct the review in a manner that was fair, just, informal and quick and did not consider an adjournment was reasonable in the circumstances where, as it found, the outcome of the judicial review process may take a year or more: [21]. The Tribunal rejected the applicant’s submission that with one exception, the application met the applicable requirements for the visa. It considered that such a conclusion was premature. It also considered and rejected the submission as to prejudice: [22]-[23]. The Tribunal concluded the judicial review proceeding by Nutritional Choice was unlikely to be concluded by September 2016, and, finding there was little utility in granting the adjournment, refused it: [24]-[25].
As her lawyer had not attended the hearing, the Tribunal allowed Ms Huang a further seven days to speak to her lawyer so as to give her an opportunity to respond: [7], [26]. Following the hearing, on 22 June 2016, the Tribunal invited the applicant to make any further submissions by 28 June 2016. It was in those circumstances that the third request for an adjournment was made on 27 June 2016. The Tribunal also considered and rejected that request: [27] – [30]. The third request was contained in a post-hearing submission that stated:
a)Nutritional Choice had lodged a further Nomination application in respect of a nominated occupation for Ms Huang; and
b)Ms Huang sought that a decision on her application be delayed until such time as the further Nomination application by Nutritional Choice had been decided.
The Tribunal considered it was not appropriate to defer its decision further and in doing so had regard to authority which considered an adjournment application in analogous circumstances: [27] – [28] citing Chhetri v Minister for Immigration and Border Protection.[8] In declining the further request for an adjournment it stated at [29]:
After considering, the period of time since the visa application was lodged, that the Department and the Tribunal have already considered a nomination application by the same employer in respect of the same nominee and determined that the nomination application did not meet the necessary requirements, and the delay in the same employer making a new nomination application after the first nomination application was determined by the Tribunal, and that the applicant is seeking a delay for an unspecified period in which the new nomination application will be considered by the Department, and that the new nomination application may not be approved, the Tribunal declines to defer making a decision in this review application until the outcome of the new nomination application is known.
[8] [2015] FCCA 3101.
On 5 August 2016, the Tribunal affirmed the decision not to grant Ms Huang the visa, grounding its decision upon a conclusion that the criterion of cl 457.223(4)(a) was not satisfied: [31]-[40].
Procedural history
On 2 September 2016, the applicant filed an application for judicial review of the Tribunal’s decision made on 5 August 2016.
An affidavit affirmed by the applicant’s solicitor on 2 September 2016 annexed a copy of the Tribunal’s decision affirming the delegate’s decisions not to grant: (a) her visa application and; (b) the Nomination application made by Nutritional Choice. Relevantly, the affidavit stated that, in Ms Huang’s application, the Tribunal concluded the applicant was not eligible for a visa because it was not satisfied that there was an approved nomination in respect of her position with Nutritional Choice.
By a Response filed on 12 September 2016, the Minister contended that the application did not establish any jurisdictional error and sought that the application be dismissed with costs.
On 28 February 2017, orders were made, by consent, regulating the preparation of the proceeding for trial. Those orders also provided that the application be listed for final hearing concurrent with the final hearing of the application by Nutritional Choice for judicial review.
On 12 June 2018, the applicant filed an amended application and submissions. The Minister filed responsive submissions.
Ground of review – bias
Ms Huang now relies upon a single ground of review which reads:
The Second Respondent’s decision was attended by jurisdictional error as there was a failure to accord procedural fairness to the Applicant because a fair minded lay observer might reasonably apprehend that the AAT member might not bring a fair, impartial and independent mind to the determination of the Applicant’s request for an adjournment on its merits before proceeding to affirm the delegates decision.
PARTICULARS
A.The AAT member, Miriam Holmes, had, on 16 March 2016, made a decision to affirm a delegate’s decision to refuse Nutritional Choice Australia’s Pty Ltd’s (NCA) nomination of Ms Huang’s appointment Sales and Marketing Manager (AAT Case Number 1500149).
B.In NCA’s review application, Ms Huang was one of the witnesses.
C.In NCA’s review application, the AAT member had made adverse credit findings against Ms Huang (at paragraphs [16] and [21]).
D.The same AAT member later heard Ms Huang’s own review application.
E.Ms Huang requested the AAT member to exercise her discretion to adjourn the hearing pending the outcome of NCA’s judicial review application or the new nomination lodged with the Immigration Department.
In substance, Ms Huang grounds her application for apprehended bias upon the combined circumstances that: (a) refusal of the adjournment had been unreasonable; (b) the same Tribunal member heard both the application for merits review by Nutritional Choice and her own application; (c) adverse credit findings were made against Ms Huang by the Tribunal in the hearing of Nutritional Choice’s application; (d) the Tribunal refused her application to adjourn the hearing until completion of Nutritional Choice’s application for judicial review and then proceeded to affirm the delegate’s decision refusing her visa application.
Applicable principles
The parties were essentially agreed as to the principles applicable to a challenge grounded on bias. As they submitted, the test for apprehended bias was to be determined by whether: “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner v Official Trustee in Bankruptcy. [9] The parties identified that the two elements of the test as stated in Ebner by Gleeson CJ, McHugh, Gummow and Hayne JJ as follows:[10]
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. . . Only then can the reasonableness of the asserted apprehension of bias be assessed.
See also Michael Wilson & Partners Ltd v Nicholls.[11]
[9] (2000) 205 CLR 337, [6], [33].
[10] (2000) 205 CLR 337, [8].
[11] (2011) 244 CLR 427, [31]-[33], [67]-[68] (Gummow A-CJ, Hayne, Crennan and Bell JJ).
In Re Refugee Review Tribunal; Ex parte H,[12] the High Court recognised some incongruity in applying a test of apprehended bias as stated in relation to curial proceedings to administrative proceedings by reason that the latter are held in private, but explained:
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.
[12] (2001) 179 ALR 425, [27]-[28] (Gleeson CJ, Gaudron and Gummow JJ).
These principles are to be applied in the context of administrative decision-making: Isbister v Knox City Council;[13] ALA15 v Minister for Immigration and Border Protection;[14] Minister for Immigration and Border Protection v AMA16.[15] Those principles are well-settled: MZAOL v Minister for Immigration and Border Protection.[16]
[13] [2015] HCA 20, [23] (Kiefel, Bell, Keane and Nettle JJ), [59] (Gageler J).
[14] [2016] FCAFC 30, [35]-[36] (The Court).
[15] [2017] FCAFC 136, [61]-[66] (Griffiths J, Dowsett and Charlesworth JJ agreeing generally).
[16] [2019] FCAFC 68, [80]-[83] (Bromberg, Farrell and Davies JJ).
As those authorities confirm, apprehended bias is an aspect of a lack of procedural fairness. The test is objective.
It is, however, critical to recognise the importance of the legal statutory and factual framework within which the claim of apprehended bias is made: see AMA16[17] citing Isbister.[18]
[17] [2017] FCAFC 136, [65].
[18] [2015] HCA 20, [20].
Consideration
There were two limbs to the complaint of bias in refusing the adjournment. The first was grounded on legal unreasonableness. The second was that the Tribunal had made adverse credit findings against Ms Huang in deciding the application by Nutritional Choice.
The claim of apprehended bias is made in the legal statutory context of the application for merits review by the Tribunal in relation to the refusal of the visa; an essential criterion for which was that Ms Huang held a nomination of an occupation that had been approved under s 140GB. In that context, the hypothetical lay observer, being properly informed about the nature of the proceedings and of the matters in issue, would be aware of those matters. Furthermore, as Ms Huang acknowledged in the course of the hearing, there was no such approval (and none that had ceased). On the facts as they existed before the Tribunal at the time of its decision, the visa application had to be refused.[19]
[19] Act, s 65(1)(b).
I have identified the factual framework within which the application for apprehended bias is made. Ms Huang’s application had been before the Tribunal for some time. In particular, it was clear that the criterion prescribed by cl. 457.223(4)(a) was not satisfied as at the date of the decision. Ms Huang had not replied to the request for information made pursuant to s 359A in the allotted period. The Tribunal was in those circumstances entitled to make a decision on review without taking any action to obtain Ms Huang’s views on the information which had been the subject of its request.[20] When her lawyer did reply, the response conceded that there was no such approval for the nominated position. Nonetheless, Ms Huang was invited to a hearing to present evidence and arguments on the issues arising on the decision under review. The issue arising on the decision under review was whether there was an approved nomination for a position at Nutritional Choice. Ms Huang’s application was required to satisfy the criteria applicable to her visa.
[20] Act, s 359C.
Ms Huang then sought to cure the absence of an approved nomination by means of her third post-hearing request to further postpone a decision on her application on the basis that another Nomination application had been lodged. It will also be recalled that the third application for an adjournment arose in the context that, as Ms Huang had appeared at the hearing without her lawyer, the Tribunal allowed her further time in which to make a post-hearing submission (after consulting her lawyer).
The Tribunal had regard to Chhetri v Minister for Immigration and Border Protection[21] in which an adjournment was sought pending the outcome of a new Nomination application, and in circumstances where the Tribunal had already considered a Nomination application by the same employer for the same applicant and the same occupation. The court noted that whilst it was relevant to take into consideration that a new nomination application had been lodged, it held that it had not been unreasonable to refuse the application for an adjournment:[22]
. . . the decision of the Tribunal to refuse the adjournment and proceed to decide the matter cannot be said to lack an evident or intelligible justification. This is not a case where it could be said, as had been raised in Minister for Immigration and Citizenship v Li, that there was good reason to expect the criterion would be met.
The court distinguished Li on the basis that in Li, good reason was found to exist that, had a brief adjournment been granted, the criterion for the visa would likely be met within a relatively short space of time.
[21] [2015] FCCA 3101.
[22] [2015] FCCA 3101, [13]
In Li, the court concluded that the Tribunal’s decision to refuse an adjournment was legally unreasonable and so tainted by jurisdictional error.[23] French CJ emphasised that:[24]
Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
[23] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [124].
[24] (2013) CLR 332, [28].
An appeal in Chhetri was dismissed: Chhetri v Minister for Immigration and Border Protection.[25] There, Gleeson J observed:
The decision shows that the MRT recognised that it had a discretion to adjourn its review. It gave due consideration to the question whether to exercise the discretion, but decided not to exercise it for reasons it gave.
[25] [2016] FCA 734 (Gleeson J).
Counsel for the Minister also drew parallels between the present case and Adhikaree v Minister for Immigration and Border Protection[26] where the same Tribunal member had refused a nomination application from the applicant’s employer, and the applicant had sought review of the Tribunal’s subsequent refusal of his visa – including on a ground of apprehended bias. The Federal Circuit Court said:
In this case, the Tribunal’s hands were tied by the Regulations. Given its earlier affirmation of the decision concerning the proposed nominated position, it had no alternatives to making the decision it did on the applicants’ review.
The question which the applicants’ allegation presents is what the hypothetical lay observer would have thought of a particular Tribunal member deciding the applicants’ case, having already decided the review of the decision on the proposed nominated position. Logically, given the way the Regulations were drawn, prejudgment is irrelevant in the context of the applicants’ case. That is because the outcome of the applicants’ review was unavoidable and completely predictable. The applicants suggested in submissions that the Tribunal could have exercised some discretion but, given the terms of s.65 of the Act, I do not agree. The Tribunal had no discretion to reach a decision other than the one which it reached.
I am not persuaded that a reasonable lay observer would have apprehended the possibility of bias in circumstances where the Tribunal could exercise no independent judgment in deciding the outcome of the review because the Regulations mandated a particular result.
[26] [2014] FCCA 621, [18]-[20] (Cameron J).
An appeal from that decision was dismissed: Adhikaree v Minister for Immigration and Border Protection.[27] Pagone J observed:
A critical element in his Honour’s conclusion was that questions of prejudgment were irrelevant to the application of the Regulations as drawn. A properly informed lay observer would take into account the task to be undertaken by the relevant Tribunal when considering whether there was any reasonable apprehension of bias. . . . In this case the task before the Tribunal was simply to find whether there were the facts required for the regulation to operate. His Honour found, correctly, that in those circumstances a fair minded lay observer properly informed as to the nature of the proceeding would not have a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the determination of the question it was required to decide. A fair minded lay observer would properly be informed about the criteria to be satisfied for the visa sought.
[27] [2014] FCA 564 (Pagone J).
Power is conferred on the Tribunal to adjourn a hearing: s 363(1)(b). As to this, I accept that the power must be exercised in a manner that is legally reasonable. The Tribunal recognised that it was being called upon to exercise a discretionary power on a matter of procedure. It examined the applicable principles and factual considerations in detail. No error is disclosed in relation to its decision or reasoning. In particular, I agree in its finding that the application was, in effect, for an indefinite delay in conducting a merits review of her application. The Tribunal had some decisional freedom in deciding whether to adjourn, and was entitled at some point to say that ‘enough is enough.’[28]
[28] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82].
Ms Huang was required to hold an approved nomination and did not do so. In failing to provide any evidence of an approved nomination, the Tribunal had to refuse the visa application. At that level, the Tribunal was not required to exercise discretion and, having refused the adjournment, had no choice but to affirm the decision. Having regard to the ground on which the adjournment was sought, it behove Ms Huang to show that there were arguable grounds the application for judicial review and the further Nomination application would be granted: cf Westpac Banking Corporation v Carver;[29] Deputy Commissioner for Taxation v Cumins.[30] In the circumstances of this case, I discern no error in the procedure adopted by the Tribunal in the manner in which the applications for an adjournment were considered and rejected.
[29] (2003) 126 FCR 113, [18] (Beaumont, J).
[30] (2008) 101 ALD 78, [33] (Gilmour, J).
As to the second limb of the ground of review, Ms Huang complained that the Tribunal’s decision to refuse the adjournment was tainted by reason of its earlier adverse finding against her. Although it may be accepted that Ms Huang was self-represented at the hearing, when the post-hearing submission was lodged, no objection on the ground of bias was made to the Tribunal.
Apprehended bias may be grounded in one of four ways: namely, interest, conduct, association and extraneous information: Ebner[31]; AMA16.[32] The present application was grounded on conduct. In relation to this species of apprehended bias, the applicable principles were stated in Vakauta v Kelly[33] by Brennan, Deane and Gaudron JJ as follows:
The appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge's approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness' views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.
[31] (2000) 205 CLR 337, [24] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[32] [2016] FCAFC 136, [66].
[33] (1989) 167 CLR 568, 572.
Ms Huang relied on the Tribunal’s Reasons at [16] and [21] in its decision to affirm the delegate’s decision on the application by Nutritional Choice. Ms Huang submitted that the person who was being asked to exercise the discretion to adjourn her hearing “was the same person who had, about three months ago, made adverse credit findings against Ms Huang”. Ms Huang submitted that the Tribunal had made an adverse credit finding against her when she appeared as a witness in Nutritional Choice’s review application, and that this created a reasonable apprehension of bias, as the same Tribunal member who had heard the review Nutritional Choice’s application had subsequently heard her application. Ms Huang submitted that as a consequence of this process, the Tribunal’s decision to refuse the adjournment applications amounted to jurisdictional error grounded on apprehended bias.
It is convenient to set out the findings of the Tribunal at [16] and [21]:
At the outset the Tribunal notes that it did not find the evidence of Mr Guo and the nominee persuasive or compelling. At times, Mr Guo simply refused to answer questions directly but provided information unrelated to the question - for example when asked when the business commenced. At other times Mr Guo gave information that was confusing and inconsistent, for example the staffing of the business. Further, the evidence was not consistent with the documentary material provided. In addition, as explained below, during the course of the nomination application process and in the period prior to the hearing Mr Guo and the applicant did not disclose the nature of the relationship between the applicant, the nominee and Mr Guo. It was only disclosed after questioning by the Tribunal. In this context, the Tribunal had significant reservations regarding the reliability of the evidence when assessing whether the position associated with the nominated occupation is genuine.
. . .
The Tribunal notes that the personal relationship between Mr Guo and the nominee was not disclosed in any documentation prior to the hearing. Further, the Tribunal notes that the role of the nominee as a director and an investor and shareholder in Nutritional Choice (the applicant) was not disclosed in any documentation prior to the hearing. These connections between the nominee, the General Manager and Nutritional Choice were only disclosed after the Tribunal questioned Mr Guo and the nominee at the hearing, after having conducted ASIC searches. The Tribunal found it troubling that these connections were not disclosed at any stage prior to the hearing, despite the lodgement of numerous documents, and raised concerns as to the reliability more generally of the evidence regarding the genuineness of the position of the nominated occupation.
The Reasons disclose that the primary criticism made was of Mr Guo’s non-responsive answers. As concerned Ms Huang, the criticism was based upon her non-disclosure until the hearing that she was a director, shareholder and investor in Nutritional Choice; facts that the Tribunal had ascertained for itself and then put to the witnesses who made those admissions. Otherwise, the pre-hearing submission by Nutritional Choice had made no disclosure of those facts. The witnesses then sought to explain the position once they had acknowledged the facts in the course of giving evidence.
It may be accepted that a reasonable apprehension of bias may in some circumstances be identified where a judge who sits on a case at first instance has previously expressed clear views upon a question of fact that is a live issue or upon the credit of a witness. However, it is necessary to recognise the qualification to that principle being that the adverse credit finding relates to evidence that is of significance on that live issue: Livesey v New South Wales Bar Association.[34] This principle may be distinguished in the present case in that very different issues were live in the application by Nutritional Choice and that by Ms Huang.
[34] (1983) 151 CLR 288, 299 (Mason, Murphy, Brennan, Deane, Dawson JJ).
Critically, the fact that there was no approved nomination for Ms Huang’s position at the time of the hearing of her application foreclosed the possibility that her application could be granted. In the circumstance that the decision to refuse the adjournment was not tainted by legal unreasonableness, I consider that the credit findings made in Nutritional Choice’s application had no connection, or no connection of significant importance, to any issue arising in either Ms Huang’s adjournment application or the application itself. To the contrary, Ms Huang’s application for merits review was based on entirely different, uncontroversial and relevantly, agreed facts; namely, that a criterion for the grant of her visa was that there was an approved nomination for her position at the time of decision and there was no such approved nomination at that time. Those matters deny a conclusion that apprehended bias grounded on an impugned credit finding is made out.
Conclusion
As Ms Huang did not hold an approved nomination for her position, the Tribunal found, correctly, that she did not meet the criteria in cl 457.223(4)(a) of Sch 2 of the Regulations. Neither complaint of apprehended bias is made out. The application must be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 27 June 2019
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