Huong's Food Service Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 254
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Huong’s Food Service Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 254
File number: PEG 250 of 2020 Judgment of: JUDGE LADHAMS Date of judgment: 11 April 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – whether refusal by the Tribunal to grant an adjournment was unreasonable or denial of procedural fairness – where Secretary provided adverse information to Tribunal in related matter with certificate under s 376 of the Migration Act 1958 (Cth) – whether denial of procedural fairness arose from failure to advise applicant of the fact of notification under s 376 - whether Tribunal decision was affected by apprehended bias – whether Secretary’s provision of adverse information in related matter amounted to fraud on the Tribunal – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 140GB, 352, 353, 357A, 360, 363, 376, 476
Migration Regulations 1994 (Cth) reg 2.72
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Ashraf v Minister for Immigration and Border Protection (2018) 261 FCR 97; [2018] FCAFC 50
CNY17 v Minister for Immigration & Border Protection (2019) CLR 76; [2019] HCA 50
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
El-Chahini v Minister for Immigration and Border Protection (2018) 74 AAR 224; [2018] FCA 202
GetSwift Ltd v Webb (2021) 388 ALR 75; [2021] FCAFC 26
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Khalil v Minister for Home Affairs (2019) 271 FCR 326; [2019] FCAFC 151
Lo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 895
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 253
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123; [2011] FCAFC 38
Webb v R (1994) 181 CLR 41; [1994] HCA 30
Number of paragraphs: 114 Date of hearing: 26 August 2021 and 5 October 2021 Place: Perth Counsel for the Applicant: Mr S Walker Solicitor for the Applicant: Western Legal Counsel for the First Respondent: Mr V Ghosh Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison ORDERS
PEG 250 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: HUONG'S FOOD SERVICE PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
11 APRIL 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a corporation which seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 22 July 2020. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to approve a sponsor nomination made by the applicant under s 140GB of the Migration Act 1958 (Cth) (Migration Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (Regulations).
The application to this Court is brought under s 476 of the Migration Act. The original application for judicial review was filed on 25 August 2020. On 18 August 2021 the applicant filed an amended application and sought leave to rely on the amended application. I granted leave to the applicant to rely on the amended application, which raises four new grounds and abandons the grounds in the original application.
The grounds in this application are the same as the grounds in a related application, PEG 269 of 2020. The applicant in PEG 269 of 2020 is the employee that the applicant in this case proposed to sponsor. These reasons for judgment should be read together with those in PEG 269 of 2020, Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 253.
I have found that there is no jurisdictional error in the Tribunal decision. Accordingly, the application is dismissed.
BACKGROUND
The applicant in the related matter PEG 269 of 2020 is Ms Thu Huong Nguyen. At all material times, Ms Nguyen was the sole director and shareholder of the applicant.
On 14 March 2017 the applicant lodged with the Department of Immigration and Border Protection a subclass 457 nomination to sponsor Ms Nguyen for the position of café manager. This sponsorship application was refused by a delegate of the Minister on 11 August 2017. The delegate found that reg 2.72(10)(f) of the Regulations was not met because the delegate was not satisfied that the position associated with the nominated occupation was genuine. The delegate noted that Ms Nguyen’s employment contract was signed by her as both nominee and the CEO of the business and that it was clear that Ms Nguyen was effectively sponsoring herself, which was contrary to the intent of the subclass 457 program.
On 28 August 2017 the applicant lodged with the Tribunal an application for review of the delegate’s decision.
On 24 February 2020 the Tribunal wrote to the applicant and invited the applicant to provide information about:
(a)the identity of any person authorised to speak and make decisions on behalf of the applicant;
(b)the current and historical office holders’ registration details;
(c)the applicant’s current status as an approved standard business sponsor or party to a work agreement;
(d)the applicant directly operating an active and lawful business in Australia and its financial position for at least the last two financial years;
(e)the applicant’s current organisational structure and where the nominated position sits in relation to that structure;
(f)the roles and duties of the nominated position and how they correspond to the nominated occupation’s position description in the Australian and New Zealand Standard Classification of Occupations (ANZSCO);
(g)the base rate of pay and the terms and conditions of employment of the nominated position, including whether or not they are more favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same location; and
(h)the visa status of the nominee, and also about the nominee’s English language ability.
In response to this notice, the applicant provided a number of documents to the Tribunal including a current and historical company extract and other extracts from the Australian Securities and Investments Commission (ASIC) registers, and Ms Nguyen’s contract of employment.
On 28 May 2020 the Tribunal sent to the applicant an invitation to comment on information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The particulars of the information in relation to which the applicant was invited to comment were as follows:
•There is no evidence before the Tribunal that Huong’s Food Service Pty Ltd has a current business sponsorship approval.
•The nominated occupation does not match the position described in the contract of employment;
•It is unclear how the salaries in the Financial Statements for the year ended 30 June 2019 relate to the people/positions noted in the organisation chart provided.
Also on 28 May 2020 the applicant was invited to attend a hearing on 17 June 2020. On 10 June 2020 the applicant’s representative wrote to the Tribunal indicating:
Our client has instructed us that they have serious concerns with a hearing that is on the phone; and not by video [as a minimum] or face to face [their preference] because of their English language capabilities, and the need for a Vietnamese interpreter.
A further complication is that they are still working with their accountant on the issues you have identified for the sponsoring entity and want the response to be satisfactorily in place before the hearing.
Is it thus possible to defer this hearing until say late July/early August 2020 when the result of the latest SBS Sponsorship may well be available [or at least imminent] – and to have this dealt with by video or in person [if Covid19 restrictions are then lifted]?
In response to this, the Tribunal arranged to conduct the hearing by video.
The applicant’s representative sent a second email on 10 June 2020 seeking an additional two weeks to respond to the invitation to comment sent on 28 May 2020. The Tribunal agreed to grant an extension of time, requiring documents to be provided before the hearing on
17 June 2020. The applicant then provided to the Tribunal a document titled ‘Job Description’ and an extract from ANZSCO in relation to café and restaurant managers.
On 16 June 2020 the applicant’s representative sent to the Tribunal an email advising that the representative was instructed that:
(a)a new standard business sponsorship request for the applicant was in preparation;
(b)an amended letter of offer, position description and ANZSCO dictionary reference was provided to the Tribunal; and
(c)the accountant for the applicant was in the process of analysing the figures in the financials for the financial year ended 30 June 2019.
Also on 16 June 2020 the Tribunal sent a notice to the applicant advising that the hearing listed for 17 June 2020 had been rescheduled to 7 July 2020 as the member had become unavailable due to circumstances beyond the Tribunal’s control.
The Tribunal convened a hearing on 7 July 2020. The hearing was a combined hearing of the applicant’s application and a related application by Ms Nguyen seeking review of a decision to refuse to grant her a subclass 457 visa. Ms Nguyen gave evidence at that hearing on behalf of the applicant and on her own behalf.
At the conclusion of the hearing the applicant was given until 10 July 2020 to provide further information. She provided some further documents in response. On 10 July 2020 the applicant’s representative also sent an email to the Tribunal that provided further submissions. In relation to the new standard business sponsorship application lodged by the applicant, the email said:
1. The matter of the status of the processing of the new SBS Sponsorship for the business. As advised at hearing this has been submitted and the Department of Home Affairs is working on it quickly. Please see a copy of their latest correspondence as attached. We would expect a decision on it by 03/08/2020; or shortly thereafter. As soon as this result arrives we will forward it to the Tribunal.
On 22 July 2020 the Tribunal affirmed the decision not to approve the nomination.
TRIBUNAL DECISION
The Tribunal identified that in order to be successful, the nomination must meet all of the criteria set out in reg 2.72(3)-(12) of the Regulations. The Tribunal’s decision concentrated on reg 2.72(4), which requires that the person making the nomination is either a standard business sponsor or a party to a work agreement other than a Minister. The Tribunal noted that this is a temporal requirement that relates to the time of the decision of the Tribunal. The Tribunal found that there was no dispute that the applicant was not, at the time of the Tribunal decision, a standard business sponsor or a party to a work agreement other than a Minister.
The Tribunal referred to post-hearing submissions received on behalf of the applicant which indicated that the Department of Home Affairs (Department) was considering a new application for a standard business sponsorship and that a decision was expected by around 3 August 2020 or shortly thereafter. The Tribunal considered a request by the applicant to delay its decision until after the sponsorship application decision was made by the Department. The Tribunal refused the request for an adjournment, and placed considerable weight on:
(a)the period of time since the original decision made by the delegate on 11 August 2017;
(b)the period of time since the sponsorship ceased on 10 January 2019;
(c)the opportunity extended to the applicant to provide comment in relation to the standard business sponsorship extended by the Tribunal on 24 February 2020;
(d)the s 359A letter sent by the Tribunal on 28 May 2020 indicating the consequences of not responding;
(e)the subsequent time taken by the applicant to lodge an application for standard business sponsorship;
(f)the uncertainty of the timeframe for provision by the applicant of adequate information to the Department in relation to that application; and
(g)the uncertainty of the outcome of the current application to the Department for standard business sponsorship.
The Tribunal affirmed the decision of the delegate because the requirements of reg 2.72(4) were not met.
PROCEEDINGS BEFORE THIS COURT
The amended application raises the following grounds:
(1)The Tribunal denied procedural fairness to the Applicant and by so doing made a jurisdictional error which had a material effect on the outcome of the review
Particulars
(a)The Tribunal declined a request by the Applicant that it should delay finalising its review in order to await a decision on a pending application for a new standard business sponsorship and by so doing denied the Applicant a reasonable opportunity to present its case; and
(b)The Tribunal took into account information given to it purportedly but not validly pursuant to s 376 of the Migration Act 1958; and
(c)The Tribunal breached its obligation to disclose the existence of the non-disclosure certificate relating to that information, to the Applicant.
(2)The Tribunal’s decision to decline the Applicant’s request described in Ground 1 was legally unreasonable, in that it was so unreasonable that no reasonable Tribunal in the circumstances could have made it, and constituted jurisdictional error which had a material effect on the outcome of the review.
(3)A reasonable apprehension of bias on the part of the Tribunal arises from the facts that it received irrelevant and prejudicial information about the Applicant, of which she was unaware, and that it failed to disclose it to her, and as a result the Tribunal’s decision to affirm the decision under review was affected by jurisdictional error which had a material effect on the outcome of the review.
(4)Fraud, or actions analogous to fraud, on the part of the Secretary, namely the provision to the Tribunal of highly prejudicial and irrelevant information, outside the scope of s 376 of the Act, distorted and stultified the Tribunal’s decision-making in the conduct of the review and induced or affected the decision, including the decision to refuse an adjournment.
This application first came before the Court for hearing on 26 August 2021. On that occasion this application was listed concurrently with PEG 269 of 2020. I raised concerns with the parties that some of the issues in relation to the two matters may be conflated and I ordered the parties to file further submissions to ensure that the issues were not conflated. While there were several concerns that I raised with the parties, the most pressing concern in relation to this particular application was that several of the grounds related to documents provided to the Tribunal which were said to be subject to a certificate issued under s 376 of the Migration Act. The certificate and associated documents appeared to have been provided to the Tribunal only in relation to Ms Nguyen’s application and there were no submissions before the Court as to the basis on which that was said to vitiate the decision in relation to the applicant company, which had a separate, albeit related, application before the Tribunal.
Both parties filed further submissions in accordance with the Court’s orders and I thank them for doing so. The applications came before me again on 5 October 2021. On this occasion the two applications were heard consecutively, not concurrently. The applicant was represented by Mr Stephen Walker and the Minister was represented by Mr Varun Ghosh.
EVIDENCE BEFORE THE COURT
At the request of the parties, I treated the evidence filed in this proceeding and in the proceeding PEG 269 of 2020 as relevant to both applications. The evidence comprised the court book in each matter and an affidavit sworn by Ms Nguyen on 13 August 2021. The affidavit set out the procedural history of the matters before the Department and the Tribunal, referred to a new standard business sponsorship application that was lodged by the applicant with the Department on 4 July 2020 and granted on 4 August 2020, and annexed the documents that had purportedly been provided to the Tribunal under the cover of the s 376 certificate.
The Minister objected to paragraph 40 of the affidavit, which regards Ms Nguyen’s response to adverse information about her, and annexure THUK on the basis that those parts of the affidavit are not relevant. In paragraph 40, Ms Nguyen deposes that, having seen the adverse information, her suspicion as to its likely nature and origin has been confirmed. She deposed that she had briefly had an unsuccessful business relationship with a person who was dishonest and unfair in his dealings with her and made threats to her in writing. Annexure THUK comprises an email which sets out those threats. The applicant submitted that the paragraph and annexure are relevant to materiality, in that they disclose the information that Ms Nguyen would have provided to the Tribunal had she been aware of the adverse information. At the hearing I treated the affidavits as read subject to resolution of the objection and indicated that I would address the objection in my reasons. I find that paragraph 40 and annexure THUK are relevant for the limited purpose of assessing materiality, in that they show the information that Ms Nguyen could have provided to the Tribunal had she been advised of the existence of the s 368 certificate and the gist of the information covered by that certificate.
CONSIDERATION OF ISSUES
It is convenient to address the issues that arise in this application thematically.
The first thematic issue addressed is the Tribunal’s refusal to defer making its decision or otherwise adjourn the review until a decision had been made in relation to the applicant’s new standard business sponsorship application. This issue is relevant to two of the grounds raised by the applicant. By ground 1, particular (a), the applicant asserts that, in making the decision not to adjourn the application or defer making its decision, the Tribunal denied the applicant procedural fairness. By ground 2, the applicant asserts that the decision was legally unreasonable.
The second thematic issue relates to the provision of adverse materials to the Tribunal in
Ms Nguyen’s matter, purportedly under the cover of a certificate issued under s 376 of the Migration Act. By ground 1, particulars (b) and (c), the applicant asserts that it was denied procedural fairness as a result of the Tribunal failing to disclose the existence of the certificate to the applicant. By ground 3, the applicant asserts that the provision of adverse information gave rise to apprehended bias in the Tribunal decision. By ground 4, the applicant asserts that the provision of the material to the Tribunal by the Secretary amounted to fraud on the Tribunal.
REFUSAL TO GRANT ADJOURNMENT OR DEFER DECISION
Applicant’s submissions
The applicant submitted that the Tribunal’s refusal to grant its reasonable request for an adjournment was both a denial of procedural fairness and legally unreasonable, and that the facts of this case are on all fours with those in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li).
The applicant submitted that at the time of making its application for approval of the nomination, it was an approved standard business sponsor and was entitled to nominate Ms Nguyen in relation to her nominated occupation. The applicant submitted that, in conducting the review, the Tribunal was not bound by technicalities, legal forms or rules of evidence, and was required to act according to substantial justice and the merits of the case pursuant to s 353 of the Migration Act. The Tribunal was also required to act in a way that was fair and just pursuant to s 357A(3) and had the power to adjourn the review under s 363(1)(b).
The applicant submitted that the common law procedural fairness rules applied in relation to whether the applicant should have been granted an adjournment to provide a third-party assessment. This was not expressly covered by the provisions in Division 5 of Part 5 of the Migration Act and therefore the common law procedural fairness obligations were not excluded by the exhaustive statement of the natural justice hearing rule in s 357A of the Migration Act. The applicant submitted that there was a good reason to expect that the criterion requiring the applicant to be an approved standard business sponsor would be met, as there had previously been a nomination which had expired during the lengthy period during which the applicant waited for a hearing before the Tribunal. The applicant submitted that there was no practical countervailing consideration disclosed in the Tribunal’s reasons for refusing to defer its decision and that the Tribunal’s reference to case management principles and litigation was inapt. The applicant submitted that the Tribunal denied the applicant a reasonable opportunity to acquire a nomination approval which was essential to its success in the review and, in so doing, denied the applicant procedural fairness.
In relation to ground 2, the applicant submitted that the refusal to grant the adjournment was unreasonable because the Tribunal failed to obey rules requiring proper application of the law and exclusion from consideration of irrelevant matters. The applicant submitted that the decision to refuse the adjournment request was made by reference to considerations which were irrelevant to the statutory purpose, namely case management considerations applicable to curial and adversarial settings, and the length of time for which the applicant had been able to employ Ms Nguyen while waiting for the Tribunal to conduct the review. The applicant submitted that it should also be inferred that the decision to refuse the adjournment was made with reference to the adverse information provided to the Tribunal in relation to Ms Nguyen.
Further, and alternatively, the applicant submitted that the Tribunal’s refusal of the adjournment request was unreasonable because no reasonable Tribunal could ever have come to that decision.
I clarified with Mr Walker in oral submissions whether the focus of the ground was the applicant’s pre-hearing request for the hearing to be adjourned, or the request for the decision to be deferred. He submitted that the grounds related to both as they effectively amount to the same thing, namely, a refusal to await the outcome of the application for a standard business sponsorship that was lodged with the Department just before the hearing.
Minister’s submissions
The Minister accepted that the Tribunal had the power to adjourn the review from time to time pursuant to s 363(1)(b) of the Migration Act and that the Tribunal was required to exercise this power reasonably and in accordance with s 353 of the Migration Act. While the Minister accepted that a failure to grant a reasonable request for an adjournment may constitute procedural unfairness, he submitted that the Tribunal is not required to afford an applicant ‘the best possible opportunity that the Tribunal may have been capable of accommodating’: Khalil v Minister for Home Affairs (2019) 271 FCR 326; [2019] FCAFC 151 at [32]. The Minister submitted that there is no obligation on the Tribunal to delay its decision-making merely because an applicant wishes to attempt to meet the relevant statutory criteria. In the present case, the Tribunal raised with the applicant that it was not a standard business sponsor on multiple occasions prior to the hearing, affording the applicant the opportunity to address this issue.
The Minister submitted in relation to the legal unreasonableness ground that the key question is whether the refusal to grant the adjournment lacks an evident and intelligible justification. The Minister submitted that the test for legal unreasonableness is a stringent standard and it would be rare that the exercise of a discretionary power would be considered unreasonable where the reasons demonstrated a justification for that exercise of the power. In the present case, the Tribunal gave detailed consideration to the adjournment request and determined not to grant the adjournment. The Tribunal provided an evident and intelligible justification for the decision not to grant the adjournment. The Minister distinguished Li on the basis that:
(a)The applicant in Li sought to have existing skills assessed for a second time in circumstances where the first assessment had been tainted by fraud. The applicant in Li was not seeking to acquire new skills to satisfy a statutory criteria or to provide a basis for a new application for a different visa. In the present case the applicant was seeking to establish new rights and entitlements that did not exist at the time of the Tribunal’s decision.
(b)The reasons given for the refusal to grant the adjournment in Li were short and insufficient in the circumstances. In the present case the Tribunal gave substantial reasons for refusing to grant the adjournment.
(c)The only significant delay in Li was attributable to the Tribunal itself.
Resolution
I do not accept that the Tribunal denied the applicant procedural unfairness or acted unreasonably in refusing to grant the adjournment.
The decision to refuse the adjournment took place in circumstances where:
(a)the purpose of the request for an adjournment was to allow time for a new standard business sponsorship application to be considered;
(b)the previous standard business sponsorship had expired on 10 January 2019, approximately 18 months before the Tribunal hearing;
(c)the Tribunal sent to the applicant a letter under s 359(2) of the Migration Act on 24 February 2020, over four months before the Tribunal hearing, which, amongst other things, invited it to provide evidence of a current standard business sponsorship;
(d)the Tribunal sent to the applicant a letter pursuant to s 359A of the Migration Act on 28 May 2020, almost six weeks before the hearing, requiring evidence of a current business sponsorship approval to be provided by 11 June 2020; and
(e)the applicant lodged with the Department an application for approval as a standard business sponsor on 6 July 2020, the day before the Tribunal hearing.
Procedural Fairness
The Tribunal’s procedural fairness obligations are largely set out in the provisions in Division 5 of Part 5 of the Migration Act, which comprise an exhaustive statement of the natural justice hearing rule in relation to the matters they deal with: see s 357A(1) of the Migration Act. In applying the provisions in Division 5 of Part 5, the Tribunal must act in a way that is fair and just: s 357A(3) of the Migration Act. There remains scope for the operation of the common law rules of procedural fairness in relation to matters not covered by the provisions in Division 5 of Part 5.
Section 357A, together with s 353, conditions the exercise of the operative parts of the Division: Li at [58]. Section 353 provides that the Tribunal is not bound by technicalities, legal forms and rules of evidence, and shall act according to substantial justice and the merits of the case.
The Tribunal in the present case did not contravene any of the provisions in Division 5 of Part 5 of the Migration Act in refusing the request for an adjournment. Section 363(1)(b) gives the Tribunal the power to adjourn the review from time to time, but does not require the Tribunal to accede to any request for an adjournment by an applicant. The Tribunal was required to invite the applicant to a hearing under s 360 of the Migration Act and did so. The applicant had a real and meaningful opportunity to participate in the hearing.
The Tribunal had put the applicant on notice that an issue in the proceeding was whether the applicant was an approved standard business sponsor over four months before the hearing, and again six weeks before the hearing. In sending the letter of 28 May 2020 inviting the applicant to comment or respond to information, the Tribunal complied with its obligation under s 359A of the Migration Act to put the applicant on notice of information which would be the reason or part of the reason for affirming the decision under review.
I accept the Minister’s submission that the Tribunal is not required to give the applicant the best possible opportunity to present his case. This is not required by the provisions in Division 5 of Part 5 of the Migration Act or the common law procedural fairness rules. Looking at the conduct of the case as a whole, the applicant had some 18 months to obtain a new approved standard business sponsorship after the previous one lapsed, over four months to do so since the applicant was first asked to provide evidence of the approved standard business sponsorship in February 2020, and six weeks since the applicant was put on notice that the absence of an approved standard business sponsorship would be the reason or part of the reason for affirming the decision under review. The applicant was not denied an opportunity to present its case when the Tribunal refused to grant an adjournment.
Unreasonableness
As mentioned above, s 363(1)(b) of the Migration Act gives the Tribunal the power to adjourn the review from time to time. As with all discretionary powers, the power is conferred on the Tribunal subject to the implied condition that it will be exercised reasonably: Li at [24], [26], [29], [63], [88]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at [4], [80].
The applicant in the present case relies heavily on the High Court’s judgment in Li. In that case, the High Court recognised that legal unreasonableness can be a conclusion reached by a court after the identification of some underlying jurisdictional error in the decision-making process, or it can be outcome focused, without the need to establish any underlying jurisdictional error: see Li at [27]-[28], [66], [72].
The Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Singh) at [48] said that ‘the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case’. In relation to the power to adjourn the review in s 363 of the Migration Act, the Full Court said in Singh at [52]:
The language of s 363 ties the exercise of the adjournment power to “the purposes of the review”. This in turn necessitates reference back to the nature and content of the review established by Pt 5. In exercising its discretion for the purposes of the review the Tribunal must be cognisant of the requirements of provisions such as s 360 and of its function under ss 348 and 349 to make the correct or preferable decision on the review.
In the present case, the Tribunal gave detailed reasons for refusing to grant an adjournment, which are referred to at [20] above. Those reasons should be the focus of any assessment of whether the Tribunal has acted unreasonably in refusing to grant the adjournment: Singh at [47]. I infer that the reasons given by the Tribunal in its decision cover both the implicit decision not to adjourn the hearing until late July or early August, as initially requested by the applicant, and the decision not to defer making its decision until after the standard business sponsorship application had been considered by the Department.
In my view, those reasons provide a plausible justification for the Tribunal’s decision not to defer its decision until after the applicant’s new standard business sponsor application had been assessed. Other decision-makers may have reached a different conclusion, but it cannot be said that no decision-maker acting reasonably could have reached the decision that the Tribunal did based on the evidence before the Tribunal. The Tribunal’s decision was within the area of its decisional freedom.
I do not accept that the Tribunal acted unreasonably by taking into account case management principles developed in a curial context. While it is true that cases such as Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon Risk) may not be directly applicable to a Tribunal proceeding, that case was referred to by the Tribunal to emphasise the role of speed and efficiency in the just resolution of proceedings, and to support the proposition that while opportunities must be extended to parties to put their case, there must be limits placed on the steps pursued. In the present case, that reference to Aon Risk directed the Tribunal’s attention to the history of the proceeding and the previous opportunity that the applicant had to re-apply for a standard business sponsorship. These were matters which were relevant to the request for an adjournment and it was appropriate for the Tribunal to have regard to these matters. Indeed, on one view, the Tribunal’s reference to Aon Risk does not materially add to its reference to the objectives of the Tribunal and the balancing act required in considering the adjournment request at [26] and [27] of its reasons, where it said:
26. The Tribunal’s objectives are contained in section 2A of the Administrative Appeals Tribunal Act 1975 stating:
In carrying out it’s functions, the Tribunal must pursue the objective of providing a mechanism of review that:
a) is accessible; and
b) is fair, just, economical, informal and quick; and
c) is proportionate to the importance and complexity of the matter; and
d) promotes public trust and confidence in the decision-making of the Tribunal.
27.In this matter the Tribunal must weigh the delay sought by the applicant, with the potential impact on the applicant’s view of fairness and justice if they were to receive approval of their application as a standard business sponsor soon after a decision is made.
The other consideration that the applicant says was extraneous to the decision was the length of time during which the applicant was able to employ Ms Nguyen while the review was on foot. While the Tribunal listed the length of time since the original decision was made as one of the factors to which it attributed significant weight in reaching its decision, it did not indicate that it gave ‘considerable weight’ to the applicant’s ability to employ Ms Nguyen during this time. The Tribunal did, however, refer to this consideration at [29] of its reasons, which should be read in the context of the surrounding paragraphs. Paragraphs [28]-[30] of the Tribunal’s reasons read as follows:
28. The consequences of a decision against the nomination would lead to affirming a rejection of a subsection 457 visa application. The subclass 457 visa was designed to allow skilled workers to come to Australia to work for an approved business in order to address genuine skill shortages. It allowed for visa’s of up to four years if the occupation was listed on the Medium and Long Term Strategic Skills List (MLTSSL) or two years if the occupation was listed on the Short Term Skilled Occupation List (STSOL). Relevant to this case Café or Restaurant Manager is listed on the STSOL.
29.Ms Nguyen applied for the subclass 457 visa on 13 March 2017. She has worked full time for the applicant, the business she established and has worked in for over three years since the applicant sought approval for the nomination under s.140GB of the Act and r.2.72 of the Regulations.
30. The applicant put to the Tribunal that the establishment of Helen’s Coffee House has resulted in a prospering business that employs Ms Nguyen and others adding economic benefits to the community. It was also put to the Tribunal, and the Tribunal has no reason to doubt, that the business would not survive without Ms Nguyen. In a post hearing submission the applicant put to the Tribunal that if the business was forced to close - jobs would be lost, taxes currently paid by the business would be lost, a retail tenancy would be foreclosed, and the local community would lose a valuable eating establishment.
The Tribunal in these paragraphs appears to be considering the potential unfairness to third parties if it refused the adjournment request, and the approval of the applicant’s application as a standard business sponsor was received soon after the Tribunal made its decision. There is nothing unreasonable in the Tribunal doing this.
Further, the outcome in the present matter is not unreasonable. This is not a case such as Li, where the applicant sought an adjournment to facilitate the assessment of her existing skills, or Singh, where the applicant sought an adjournment to enable the remarking of an English test that she had already undertaken. Rather, in the present case, the applicant sought the adjournment to allow it to take steps to attempt to meet a mandatory statutory criteria, which it had ceased to meet some 18 months prior to the Tribunal decision, in circumstances where the Tribunal had advised the applicant four months before the hearing that it would need to provide evidence to show that it was an approved standard business sponsor, and had put the applicant on notice six weeks before the hearing that the failure to be an approved standard business sponsor would be the reason or part of the reason for affirming the decision under review. Despite being put on notice of this, the applicant did not lodge a new standard business sponsor application until the weekend before the hearing. In these circumstances, the Tribunal’s refusal to adjourn the review or defer delivering its decision was not an unreasonable outcome.
Conclusion in relation to Tribunal’s decision not to defer its decision
In the circumstances of the present case, the Tribunal’s decision not to adjourn the review was not unreasonable and did not amount to a denial of procedural fairness to the applicant.
PROVISION OF ADVERSE INFORMATION UNDER COVER OF S 376 CERTIFICATE
Before addressing the legal issues in relation to ground 1, particulars (b) and (c), ground 3 and ground 4, it is appropriate to set out some further relevant background information and to make factual findings about whether the adverse information about Ms Nguyen was before the Tribunal in relation to this matter.
On 4 May 2018 a delegate of the Secretary of the Department provided to the Tribunal information received on the Border Watch Allegations Team web form on 19 April 2018. The information was provided by an anonymous source who described himself or herself as an Australian concerned about Asian students cheating the system. The information provided was about Ms Nguyen and can be summarised as allegations that in 2007, she had been involved in illegal work and housing illegal workers, she had not attended school and breached her visa conditions, and she had been involved in illegal activities such as dealing with stolen goods and drug offences (adverse information). The adverse information was provided at a high level of generality and contained few meaningful details.
The adverse information was accompanied by a certificate dated 2 May 2018 issued under s 376 of the Migration Act which notified the Tribunal that s 376(1)(b) of the Migration Act applied to the source information received in that web form. The certificate also indicated that the Tribunal’s use and disclosure of the information was subject to the provisions of s 376(3) of the Migration Act.
Section 376 of the Migration Act relevantly provides:
(1) This section applies to a document or information if:
…
(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information.
(2)Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a)shall notify the Tribunal in writing that this section applies in relation to the document or information; and
(b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3)Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.
The s 376 certificate did not refer to the applicant in this matter or the applicant’s matter before the Tribunal. Rather, on its face, the certificate related to Ms Nguyen and contained Department and Tribunal reference numbers which were associated with Ms Nguyen.
The applicant submitted that the adverse information was before the Tribunal in relation to the applicant’s case, and not just Ms Nguyen’s case. In advancing this submission, the applicant made the following points:
(a)the Tribunal was constituted by the same member in both review applications and the hearings were combined;
(b)nothing turns on the fact that the certificate was reproduced only in the court book prepared for PEG 269 of 2020 because the court books were prepared by the Minister’s solicitors, who chose which documents go in which court book, and that is not determinative of the relevance of documentation to one or the other of the two review applications dealt with by the Tribunal;
(c)the case reference number placed on the material by the Secretary cannot be determinative or even relevant;
(d)rather, the question is whether the Tribunal which made the decision on the company’s review application was aware of and considered the material; and
(e)the applicant was heavily identified and associated with Ms Nguyen and so any adverse information in relation to her was bound to reflect adversely on the applicant.
I do not accept that the documents were provided to the Tribunal in relation to the applicant or in relation to the applicant’s review application. It is highly relevant that the s 376 certificate that accompanied the documents referred only to Ms Nguyen and the Tribunal and Department reference numbers associated with Ms Nguyen.
I am, however, prepared to accept that the Tribunal was aware of the information when making its decision in relation to the applicant in this proceeding.
Neither party submitted that the certificate itself was invalid, although the applicant submitted that the provision of the documents covered by the certificate was invalid. I proceed on the basis that the certificate was valid.
Applicant’s submissions in relation to ground 1, particulars (b) and (c)
The applicant submitted that the Tribunal had an obligation of procedural fairness to disclose to the applicant the existence of the certificate issued under s 376 of the Migration Act. The applicant submitted that the Tribunal breached that obligation and the breach deprived the applicant of the possibility of a successful outcome because, had the applicant been alerted to the existence of the certificate, it would have immediately suspected the source of information was a disgruntled former business party who had made threats to Ms Nguyen and would have put that information before the Tribunal.
The applicant also submitted that it was denied procedural fairness as a result of the Secretary providing to the Tribunal information that was highly adverse to Ms Nguyen.
Minister’s submissions in relation to ground 1, particulars (b) and (c)
The Minister rejected the applicant’s assertion that the Tribunal’s receipt of the adverse information and its failure to disclose the existence of the information to the applicant constituted a breach of procedural fairness. The Minister submitted that the adverse material was completely irrelevant to the adjournment decision and the Tribunal did not refer to the material in its reasons nor at the hearing. The Minister submitted that there is no basis to infer that the Tribunal relied on the adverse information in reaching the adjournment decision.
Resolution of ground 1, particulars (b) and (c): procedural fairness
The fact of notification in a certificate triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [2]. Where the Tribunal fails to disclose to an applicant the existence of a s 376 certificate in relation to that applicant, the Tribunal may have denied the applicant procedural fairness, and that may result in jurisdictional error if material: see for example El-Chahini v Minister for Immigration and Border Protection (2018) 74 AAR 224; [2018] FCA 202 at [25]-[27]; Lo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 895 at [28]-[33].
However, there was no s 376 certificate issued in relation to the applicant in the present matter. Rather, the certificate was issued in relation to Ms Nguyen and contained only the case file number of Ms Nguyen’s application. It does not automatically follow that the Tribunal had an obligation to disclose the existence of the certificate in relation to Ms Nguyen to the applicant in this matter, even if the Tribunal was aware of the information when making the decision in the applicant’s matter.
At the hearings, I asked Mr Walker to explain the basis on which he says that the Tribunal had an obligation to disclose the s 376 certificate about Ms Nguyen to the applicant in this proceeding. Mr Walker submitted at the hearing on 26 August 2021:
… our submission and our case is that it, with respect, matters not what reference or ID or other identifying information is placed on a document. What matters is whether it was before the tribunal. And in this case, it’s very clear, with respect, that the two applications for review were dealt with by the same member and that there was one hearing of the two review applications – it was held jointly and the Act makes provision for that. And our submission is that the certificate itself and the attached material to which it referred was before the member of the tribunal who made both decisions and it was as equally before him in respect of the company’s decision as it was in relation to Ms Nguyen’s application.
At the hearing on 5 October 2021 Mr Walker submitted:
… the authorities establishing that it is a breach of procedural fairness to fail to disclose the existence of a certificate to an applicant, that none of them – none of those authorities relates to a case like this where there are two different entities which are both applicants before, as it happens, the one tribunal. And one of them, Ms Nguyen, is the subject of the impugned information, the prejudicial and adverse information, and the other is not. It is, at one level, simply the distinct entity that is wanting to employ Ms Nguyen in a nominated position.
And so I can’t point you to any authority that says, “This is perfectly the same,” from the company’s perspective, “as the authorities that establish a breach of procedural fairness through failure to disclose the certificate, or the existence of the certificate.” What I rely on, your Honour, is, in this case, the great “identity” … between the interests of the applicant company and those of Ms Nguyen. As already mentioned, the company is one in which the shareholder and director are Ms Nguyen. The company conducts the business. The company was – and at one point was not – a standard business sponsor. And the company sought to nominate the position in which – a position in its business, that position – it being contemplated – would be filled by Ms Nguyen.
…
Mr Walker submitted that one of the allegations contained in the adverse information appeared to relate to the applicant company and that the allegations about Ms Nguyen damaged the image and reputation of her and the applicant. Mr Walker also submitted that the potential for the adverse information to subconsciously and negatively affect the decision-maker’s view of the matter gave rise to an obligation to disclose the existence of the certificate.
I acknowledge that Ms Nguyen was the sole director and shareholder of the applicant and she would, most likely, have been the representative of the applicant to whom the certificate might have been disclosed. I also acknowledge that the applicant’s interests and Ms Nguyen’s interests insofar as they relate the proceedings before the Tribunal were consistent. I am also willing to accept that one of the allegations related not only to Ms Nguyen, but to a café that she employed staff to work at, although there is insufficient information available to ascertain whether or not that is a reference to the applicant. However, in my view, these considerations do not give rise to a procedural fairness obligation on the part of the Tribunal to disclose the existence of the certificate to the applicant.
It is important to bear in mind that the applicant and Ms Nguyen have separate legal identities, and they had separate applications before the Tribunal. The certificate related to Ms Nguyen, not the applicant, and the documents appear to have been provided only in relation to Ms Nguyen’s application to the Tribunal. The Tribunal had a procedural fairness obligation to disclose the existence of the certificate to Ms Nguyen in relation to her application. Had it done so, that may, in the present case, have had the practical effect of meaning that the applicant’s representative (Ms Nguyen) was aware of it. But that does not amount to a procedural fairness obligation on the Tribunal to disclose the existence of the certificate about Ms Nguyen to the applicant. The obligation on the Tribunal to disclose the existence of the certificate to an applicant in a related matter cannot be dependent on the identity of the office holders, nor can it be affected by whether the Tribunal holds a joint hearing or separate hearings. The Tribunal may from time to time hold joint hearings as a matter of convenience, but that does not alter the rights of the parties to the proceeding.
I find that there was no obligation on the Tribunal to disclose to the applicant the existence of the s 376 certificate issued in relation to Ms Nguyen’s review proceeding. It follows that the Tribunal did not deny the applicant procedural fairness by failing to notify the applicant of the existence of the certificate or give the applicant an opportunity to respond to the prejudicial information.
A separate but related question may arise as to whether the Tribunal had any power to disclose the existence of the certificate to the company applicant, or the information covered by the certificate, in any event. However, given that I have found that there was no obligation on the Tribunal to disclose the existence of the certificate to the applicant, it is not necessary to determine that question in this proceeding.
Particular (b) raises a separate issue in relation to the s 376 certificate, namely, that the Tribunal erred by taking into account the adverse information that was purportedly provided under the cover of the certificate. There is nothing in the Tribunal decision that suggests that it had regard to the adverse information in any way in reaching its decision in this matter. Those documents containing the adverse information were not provided to the Tribunal in relation to the applicant’s review proceeding. They were not referred to in the Tribunal decision. They were completely irrelevant to the determinative issues in the Tribunal decision, namely, whether the applicant was an approved standard business sponsor and whether the applicant should be granted an adjournment to allow it to progress to an application for standard business sponsorship. In the context of the decision made by the Tribunal, and the basis on which the Tribunal affirmed the decision, the applicant was not denied procedural fairness as a result of the provision to the Tribunal, in Ms Nguyen’s matter, of the adverse information in documents covered by the s 376 certificate.
It follows from this that, even if, contrary to my finding above, the Tribunal did have a procedural fairness obligation to notify the applicant of the s 376 certificate in relation to Ms Nguyen, any failure by the Tribunal to notify the applicant of the certificate was not material to its decision in this matter.
Insofar as ground 1 relates to the certificate issues, it is not established.
Applicant’s submissions in relation to ground 3
The applicant submitted that the giving of the adverse information to the Tribunal was not done pursuant to any requirement of or under the Migration Act. The applicant submitted that by providing the adverse information to the Tribunal, the Secretary must be taken to have held the opinion that it was relevant to the review and the Tribunal must be taken to have understood that this was the Secretary’s opinion.
The applicant submitted that the information is substantially adverse and prejudicial to the applicant’s interests, and it should be inferred that the Tribunal received and read the adverse information and had regard to the adverse information in relation to its decision to refuse a request for an adjournment.
Alternatively, the applicant submitted that the Court should conclude that a fair-minded lay observer might nevertheless apprehend that the Tribunal had regard to the adverse information subconsciously. The Tribunal had knowledge of extraneous information, being some prejudicial fact or circumstance that gives rise to an apprehension of bias.
The applicant also submitted that the movements details in relation to Ms Nguyen, which reflects her travels to and from Australia from April 2008 and various changes to her migration status, gives rise to an apprehension of bias. The applicant submitted that it should be inferred that this document was obtained by the Tribunal in order to consider the reliability of the anonymous allegations against Ms Nguyen. The applicant submitted that a fair-minded lay observer might find it difficult to accept that there is no possibility that the Tribunal might be subconsciously influenced by the prejudicial information.
Minister’s submissions in relation to ground 3
The Minister submitted that the adverse information was not referred to in the Tribunal’s reasons or the conduct of its review and the absence of reference to material in a written statement of reasons will ordinarily support the inference that the material was not intentionally relied on. The Minister submitted that there is no reasonable apprehension of bias arising in the present matter because:
(a)There is no logical connection between the provision of the adverse material and the decision not to grant an adjournment. The grant or failure to grant an adjournment is a procedural measure and is not a substantive assessment of the applications merits of the credibility of the applicant.
(b)If there was a failure to provide procedural fairness, which was denied by the Minister, the failure was not material to the decision. The adverse materials were provided in a different albeit related application and there is no evidence that the Tribunal had regard to the adverse information in considering the company applicant’s application. The reasons for refusing the adjournment did not refer to the adverse materials, nor was the character and credibility of Ms Nguyen relevant to the decision not to adjourn or delay the decision.
Resolution of ground 3: apprehended bias
The parties largely agree on the principles to be applied in relation to this ground.
A decision will be affected by apprehended bias if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question that he or she is required to decide: CNY17 v Minister for Immigration & Border Protection (2019) CLR 76; [2019] HCA 50 at [17], [56] and [132] (CNY17); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] and [33].
The application of the rule against bias requires two steps:
(a)identification of the factor which it is said might lead the decision-maker to decide the case other than on its legal and factual merit; and
(b)an articulation of the logical connection between that factor and the feared deviation from the course of deciding the case impartially on the merits:CNY17 at [21] and [57].
The applicant identifies the present case as one involving the fourth category of case identified by Deane J in Webb v R (1994) 181 CLR 41; [1994] HCA 30 at [12] where the impartiality of a decision-maker may be compromised. This fourth category relates to extraneous information where the decision-maker has knowledge of some prejudicial but inadmissible fact or circumstance giving rise to an apprehension of bias.
As indicated above, notwithstanding that I have found that the adverse information was provided to the Tribunal only in relation to Ms Nguyen’s case, I am prepared to accept that the Tribunal may have had knowledge of the information when making its decision in the applicant’s review application. Extraneous information obtained in the course of a different proceeding can, in some cases, give rise to apprehended bias: see, for example, GetSwift Ltd v Webb (2021) 283 FCR 328; [2021] FCAFC 26.
I accept that the adverse information was prejudicial to Ms Nguyen. As Ms Nguyen was the sole director and shareholder of the applicant, for the purpose of assessing whether the Tribunal decision is affected by apprehended bias, I am prepared to accept that the adverse information was also prejudicial to the applicant, and would be perceived as such by the fair-minded lay observer.
The hypothetical fair-minded lay observer is taken to be aware of the nature of the decision and the context in which it was made, and to have knowledge of the circumstances leading to the decision: Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [23]; CNY17 at [58]. In the present case, applying the test for apprehended bias, the hypothetical fair-minded lay person should be imputed with a basic understanding of the statutory regime: see CNY17 at [17], [51], [94].
The fair-minded lay observer would also have regard to the conduct of the hearing before the Tribunal. The fair-minded lay observer would be able to see from the way in which the hearing was conducted before the Tribunal that the Tribunal member had a number of concerns about whether the applicant met the criteria for the approval of the nomination and whether
Ms Nguyen met the criteria for the visa for which she had applied, but also made a number of positive remarks about Ms Nguyen. These included comments that Ms Nguyen had done a good job with the business, that she has a passion for the business that comes across as great, that she is doing good things for herself and the community, and that the Tribunal member appreciated what Ms Nguyen is doing and wished her the best.
In CNY17, three of the five judges held that where apprehended bias falls to be assessed after a decision is made, the reasons for decision form part of the facts and circumstances in which apprehended bias is to be assessed: CNY17 at [20] (Kiefel CJ and Gageler J), [135] (Edelman J), contrast [69]-[70] (Nettle and Gordon JJ). There is no reference in the Tribunal reasons to the adverse information, and nothing in the Tribunal’s reasons or other evidence before the Court that would suggest to a fair-minded lay person that the Tribunal actively took the information into account.
The factor in the present case which might be said to lead the Tribunal to decide the case other than on its legal and factual merit is that the prejudicial information could potentially cause the Tribunal to form the view that Ms Nguyen is a person of poor character who might not be deserving of a visa, and therefore the applicant, being a company with strong affiliation with Ms Nguyen, should not be considered worthy of an approved nomination.
The test as to whether there is a logical connection between the adverse information and the feared deviation from deciding the case on the merits is an objective one: Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427 at [33], [67]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8]. In the present matter, the Tribunal has effectively made two decisions – the first being not to grant the adjournment or defer its decision, and the second being to affirm the delegate’s decision.
At the hearing on 5 October 2021, Mr Walker submitted:
This is a company that has, can I say respectfully, irritated and annoyed and, probably understandably so, the tribunal by procrastinating with renewing its standard business sponsorship and has left things late. “What’s going on here? Will the adjournment be granted or not?” Well, to think that this company is advancing a nomination and wants a deferral of the decision on that when it’s a company that engages in disgraceful behaviour itself, seemingly, the reference of the business in the report. And the very person that it wants to fill the position being nominated is, supposedly, a dreadful person who’s completely dishonest. Well, that must have an impact in my submission.
That submission does not, in my view, reflect the views of a hypothetical fair-minded lay person. The Tribunal’s decision to refuse to defer its decision or adjourn the review was a discretionary decision. The Tribunal refused to adjourn the review based on case management principles and the previous opportunities the applicant had to obtain a new standard business sponsorship.
While in an extreme case, it is conceivable that a Tribunal member might take an adverse view of an applicant into account in refusing to give that applicant any further opportunities to meet the statutory criteria, I do not accept that in this case, that a fair-minded lay observer, cognisant of the facts of the case and with a general understanding of the statutory framework, might reasonably believe that there was any connection between the Tribunal’s refusal to adjourn and the adverse information, even at a subconscious level.
The adverse information could have no logical bearing on or relevance to the Tribunal’s decision to affirm the delegate’s decision on the basis that the applicant did not hold a standard business sponsorship. The applicant acknowledged that it did not hold a standard business sponsorship and, in any event, that was an objectively ascertainable fact. There was no assessment of the character of any person associated with the applicant in reaching that decision.
I do not accept that the movements details document establishes apprehended bias in any way. That document shows Ms Nguyen’s travel to and from Australia and her visa history, and it is not prejudicial in any way. It is not uncommon for the Tribunal to obtain a movements details document in relation to an applicant and there is nothing to support any inference in this matter that the only reason for obtaining it was to test the reliability of the anonymous and adverse information provided in relation to Ms Nguyen. Indeed, it is difficult to see how the movements record could verify the allegations in the adverse information in any event, as none of the allegations involve travel by Ms Nguyen. Although not directly relevant to the resolution of this ground, I would also note in passing that the movements record could not, once obtained by the Tribunal, have corroborated the adverse information in any event. The adverse information suggests that the allegations relate to events said to have occurred in 2007. The movements record does not record any travel or visa history of Ms Nguyen prior to 2008.
I am not satisfied that a reasonable fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to its decision.
Ground 3 is not established.
GROUND 4: FRAUD
Applicant’s submissions
The applicant submitted that the provision of the adverse information to the Tribunal by the Secretary was not done in compliance with s 376 or any other requirement of or under the Migration Act. The applicant company submitted that the information was never disclosed to it, and it was unaware of the existence or the significance of the material.
The applicant submitted that the provision of the adverse information by the Secretary to the Tribunal was fraudulent and that, following the High Court’s judgment in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35, the result was that the decision was distorted and the decision-making process stultified even though the Tribunal may have acted innocently in relation to the information. The Tribunal was disabled from the discharge of its imperative statutory functions and this affected the express power of the Tribunal to grant the adjournment that had been sought by the applicant.
Minister’s submissions
The Minister submitted that the provision of the material containing adverse information to the Tribunal, in Ms Nguyen’s case the subject of the s 376 certificate, was not fraudulent because it was relevant and provided for a legitimate reason. The adverse information contained an allegation that was relevant to the assessment of the business visa application and, under s 352(4) of the Migration Act, the Secretary is required to give to the Tribunal each document that is relevant to the decision under review. Even if the s 376 material was not relevant, there is no basis to conclude that there is a lack of good faith by the Secretary in this case. Further, there is nothing to infer that the Tribunal’s decision not to adjourn the matter was influenced, vitiated or distorted in any way by the provision of the material under the s 376 certificate.
Resolution
I do not accept that there is any conduct that amounts to fraud that vitiated the Tribunal decision in this matter.
First, the Secretary did not provide to the Tribunal in relation to this matter any adverse information. That information was only provided in another matter. The parties have not referred me to any authority that says that conduct analogous to fraud in one matter can vitiate the Tribunal’s decision in another matter.
Second, and in any event, I do not consider the provision of documents to the Tribunal in Ms Nguyen’s case to amount to fraud. The Secretary’s obligation to provide documents to the Tribunal is contained in s 352(4) of the Migration Act, which requires the Secretary to give to the Registrar each document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision. Section 376 of the Migration Act does not confer any separate obligation or power on the Secretary to provide documents to the Tribunal. Rather, that section relates to notifying the Tribunal about particular matters in information that the Secretary otherwise has an obligation to provide.
It can be inferred in the present case that the Secretary formed the view that the adverse information was relevant to the review of the delegate’s decision to refuse to grant Ms Nguyen a visa. There is no evidence from which I can conclude that the Secretary, in forming that view, acted in bad faith or otherwise engaged in conduct analogous to fraud. The Tribunal is not required to form the same view as the Secretary as to the relevance of the material. Accordingly, that the Tribunal did not have regard to the adverse information, and it can be inferred that the Tribunal considered the information to be irrelevant, does not mean that the Secretary acted improperly in providing the material.
Both parties made submissions as to whether there was any basis in the Migration Act for the Secretary to provide the adverse information to the Tribunal. The applicant submitted that there was not, in part because the information was irrelevant and prejudicial, and in part because the Secretary had already provided material when the matter was first referred to the Tribunal and there was no power to provide the adverse information, which was received at a later time after the Secretary had complied with the obligation under s 352(4) of the Migration Act. The Minister submitted that the adverse information was relevant information for the Secretary to provide because the genuineness of the application was in issue, and that the obligation to provide documents in accordance with s 352(4) extends throughout the Tribunal review.
I accept that the Secretary was required to provide to the Tribunal any documents that came into the Secretary’s possession or control, and which the Secretary considered to be relevant to the review, while the review remained on foot: see SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123; [2011] FCAFC 38 at [57]; Ashraf v Minister for Immigration and Border Protection (2018) 261 FCR 97; [2018] FCAFC 50 at [63]-[64]. Although there is no evidence before me as to the basis on which the Secretary formed the belief that the adverse information was relevant to Ms Nguyen’s review, it is easy to see how the Secretary might have considered the documents to be relevant. For example, the adverse information contained an allegation that Ms Nguyen breached her visa conditions. The time of decision criteria in cl 457.221 required Ms Nguyen to have substantially complied with conditions that applied to the last substantive visa that she held.
There is no evidence before me from which I can conclude that the Secretary acted for an improper purpose, or in bad faith, in providing the adverse information to the Tribunal.
In any event, as indicated above, I am not satisfied that the Tribunal took the adverse information into account in reaching its decision, actively or subconsciously. Even if the adverse information had been provided improperly, it has not stultified the decision-making process.
Ground 4 is not established.
CONCLUSION
I have found that none of the grounds raised by the applicant establish jurisdictional error. It follows that the application must be dismissed.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 11 April 2022
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