Kainsrey v Minister for Immigration
[2018] FCCA 1354
•25 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAINSREY v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1354 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration. |
| Legislation: Migration Act 1958 (Cth), ss.116(1)(b); 366C(1), 477(2) Migration Regulations 1994 (Cth), reg. 140A, cls.573.231, 573.223(1A) of Schedule 2 |
| Cases cited: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA FC 80 |
| Applicant: | DALJIT SINGH KAINSREY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 910 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 6 April 2018 |
| Date of Last Submission: | 6 April 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 25 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Guru |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The time within which the present proceedings may be commenced be extended to 13 September, 2017.
The application for review filed on 13 September, 2017 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 910 of 2017
| DALJIT SINGH KAINSREY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks an extension of time within which to commence proceedings for judicial review of a decision of the second respondent given on 7 July, 2017 which affirmed a decision of a delegate of the first respondent to cancel his Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa. The application is opposed by the first respondent. The second respondent entered a submitting appearance.
The parties agreed that I should consider the application for the extension of time and, if I grant the extension, I should go on to determine the application for review that the applicant wishes to prosecute. In accordance with the parties’ approach, I have done that.
Background
The applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa on 24 February, 2014.
On 30 November, 2016 the first respondent’s department issued the applicant with a notice of intention to consider cancellation of the visa. The basis of the notice was information that had come to the first respondent’s attention to the effect that it appeared that he had not complied with condition 8516 of his visa. That condition required the applicant to continue, for so long as he held the visa, to be a person who would satisfy the primary or secondary criteria, as the case required, for the grant of the visa.
The criteria for the grant of the applicant’s visa required him to meet, among other criteria, cls.573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994 (Cth). For present purposes, cl.573.231 required that the applicant be enrolled in, or be the subject of a current offer of enrolment in a course of a type that was specified for subclass 573 visas by the first respondent in an instrument made under reg.1.40A of the Regulations and which was in force when the application was made. Sub-clause 573.223(1A) relevantly required the applicant to be an eligible higher degree student which, in effect, required him to be enrolled in a bachelor’s degree or master’s degree course.
On 15 December, 2016 a delegate of the first respondent cancelled the applicant’s visa utilising the power to do so given by s.116(1)(b) of the Migration Act 1958 (Cth). The first respondent’s delegate found that the applicant was not a person who continued to satisfy the primary criteria for the grant of the visa, and specifically cl.573.231 or cl.573.223(1A) of Schedule 2 to the Regulations. The delegate found that the applicant had not enrolled in a course of study that is a principal course of a type specified for subclass TU-573 visas by the first respondent in an instrument made under reg.1.40A of the Regulations. The delegate found that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.
The applicant sought review of that decision by the second respondent and for that purpose made an application for review on 28 December, 2016. The second respondent could not decide the application in the applicant’s favour on the material before it and so, on 5 June, 2017 invited the applicant to appear before it to give evidence and present arguments relating to the issues arising on the review.
A hearing proceeded on 5 July, 2017 at which the applicant was assisted by a migration agent (who is also a lawyer) and an interpreter. The assistance (or lack thereof) from the interpreter is the subject of the applicant’s proposed grounds of review in this application.
After the hearing on 28 June, 2017 the applicant provided further evidence in support of his review, including submissions and a statutory declaration. In summary, the applicant’s case was that:
a)In June, 2015 he secured an enrolment in a Certificate IV in Business, Diploma of Business and Bachelor of Business at the Holmes Institute. He commenced studying in June 2015, but his studies did not go well and the teaching staff were not good.
b)He therefore “stopped” this course in December, 2015 and realised that his real interest was in hospitality. He commenced a Certificate IV in Commercial Cookery in December, 2015 at New England College. When he decided to change courses, he did not engage a lawyer or agent to save costs and did not know that he was required to hold a “Bachelor of COE” at that time. When he received the notice of intention to cancel his visa, he immediately sought legal advice.
c)He received an offer of enrolment in a Bachelor of Business Management due to commence in March, 2017.
d)His family had spent a lot of money to allow him to study in Australia and his family would be extremely shocked and disappointed if the visa remained cancelled.
On 7 July, 2017 the second respondent affirmed the delegate’s decision to cancel the applicant’s visa.
The second respondent found that the applicant ceased to meet cl.573.223(1A) of Schedule 2 to the Migration Regulations 1994 when his enrolment in the Bachelor of Business degree was cancelled on 11 November, 2016. The second respondent found that the applicant did not meet cl.573.231 as he was not enrolled in a course specified in IMMI14/015 – the relevant instrument made under reg.1.40A of the Regulations which was in force when the visa application was made.
The second respondent was satisfied that a ground for cancellation under s.116(1) of the Act existed. In this application for review, the applicant does not seek to challenge that finding. The second respondent noted that the fact that a ground for cancellation was present did not mean that the visa must be cancelled. There was a discretion to be exercised.
The second respondent considered the applicant’s circumstances. It recounted the applicant’s evidence that towards the end of 2015 he withdrew from his courses at the Holmes Institute and enrolled in a Certificate IV in Commercial Cookery, that the applicant had forgotten that it was a condition of his visa to remain enrolled in a higher education course and that he performed well in his cookery course and his teachers were helpful.
However, the second respondent was concerned that, given the applicant’s conduct in withdrawing his enrolment in the higher education course and undertaking a commercial cookery course, he may not have the desire to undertake a higher education course in Australia. The second respondent was also concerned that as the applicant had failed to even pass a Certificate IV in Business twice with different institutions, he may not have the ability to successfully undertake a Bachelor of Business degree. The applicant stated that he had become depressed after the cancellation of his visa but confirmed that he had not sought medical assistance.
The Tribunal expressed concern with the applicant about his language skills and how they might impact upon his ability to complete his study. In its reasons, the second respondent recorded that towards the end of the hearing, the applicant stated that he recently received a 6 in an IELTS test. It allowed the applicant until 6 July, 2017 to provide evidence of that test if he wished and the applicant did so.
Notwithstanding the applicant’s evidence and submissions, the second respondent found that the applicant did not have the ability to successfully undertake a higher education course in Australia. It noted that for 18 months he had attempted to complete a Certificate IV in Business at two separate institutions and failed to do so. It found that if he was unable to complete even a Certificate IV in Business he would be unable to complete a Bachelor in Business.
The second respondent did not accept that the applicant’s failure to pass any of his business courses in the past was attributable to having poor English ability at the time. It referred to his evidence that he had attained a 5.5 score in an IELTS test prior to coming to Australia, completed an ELICOS course and was able to complete the cookery course but that he had failed his business course on two occasions.
The second respondent accepted that the applicant and his family members may experience disappointment if his visa was cancelled. The second respondent also accepted the applicant’s lawyer’s submission that the applicant would not be prevented from applying for another student visa if his visa remained cancelled, although he would have to do so offshore. Nonetheless, the second respondent found that the applicant’s lack of ability to successfully undertake higher education courses in Australia heavily outweighed any hardship that he or his family may suffer due to the cancellation of his visa.
Extension of time
It is uncontroversial that the second respondent’s decision was made on 7 July, 2017.
Section 477(2) of the Migration Act requires, in effect, that an application to this Court for judicial review of a decision of the second respondent be made within 35 days of the date of the migration decision. In this case, the application needed to be made by 11 August, 2017. It was not made until 13 September, 2017, some 33 days late.
The Court has power to extend the time if an application has been made in writing to the Court for that purpose and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order extending the time within which to commence the proceedings (s.477(2) of the Act).
The delay is explained in this case because the second respondent initially attempted to send a copy of its decision to the applicant (and his advisors) by email but it was sent to an incorrect email address. However, the decision was properly notified to the applicant by it being sent to the correct email address on 11 August, 2017. The applicant commenced these proceedings within 35 days of 11 August, 2017. In those circumstances, the delay is not significant and there is a reasonable explanation for it.
The first respondent accepts that he is not prejudiced by the delay or the grant of an extension of time within which to commence the proposed application for judicial review.
The focus of the parties’ arguments was on the merit of the applicant’s proposed application for review. If the proposed application is without merit, or sufficient merit, the extension should be refused because no purpose would be served by granting it. On the other hand meritorious grounds, or sufficiently meritorious grounds would tell in favour of the extension. This aspect of the matter needs to be considered at a reasonably impressionistic level, it is not the occasion for a thorough consideration of the proposed grounds.
It is sufficient to state, I think, that at a general level the applicant’s grounds have sufficient merit to conclude that it is in the interests of the administration of justice to grant the extension sought. Both grounds of review proposed by the applicant warrant more detailed consideration. Neither are so devoid of merit that it could be concluded that it is not necessary in the interests of the administration of justice to make the order extending the time within which to commence the proceedings. I make such an order.
The grounds of review
The application for review contains three grounds. The applicant’s solicitor suggested that all that was to be said for ground three was said in relation to grounds one and two. It was not suggested that ground three warranted separate consideration to the first two grounds.
The first ground of review is expressed in general terms:
1. The Second Respondent failed to provide natural justice to the Applicant which is an error of law.
This ground, as developed in both the applicant’s written and oral submissions, focussed upon the way in which the Tribunal member approached the applicant’s request for an interpreter. The applicant had requested the assistance of a Punjabi interpreter for the Tribunal hearing. He was entitled to make such a request: s.366C(1) of the Act.
The applicant argues that the Tribunal member “relied” upon irrelevant material because it was concerned with the applicant’s preference to use an interpreter and that by inference the Tribunal must have thought that because the applicant’s English must be so bad that he needed to use an interpreter, his student visa should have been cancelled.
The applicant has filed and read a transcript of the Tribunal hearing. It is apparent that almost all of the first five pages of the transcript is taken up with discussion concerning the use of an interpreter by the applicant.
At the outset of the hearing the following exchange occurred:
MEMBER: Mr Kainsrey, so you speak any English?--- I speak not very well. I think I want to speak in Punjabi.
That is fine, you can do that. It may affect the outcome of the hearing if I assess that your English is poor, because it may go to whether you’re able to study a higher education course at a university. Okay, so it’s up to you. If you want everything translated, that’s fine.
INTERPRETER: I will try my best to speak in English, and if I needed help then I’ll ask for the interpreter.
MEMBER: Well you just said that you wanted everything interpreted. I’m just getting mixed messages here.
APPLICANT’S REPRESENTATIVE: Member, if I may, before the hearing he did ask me if we could use the interpreter. I did tell him that it is his right to use the interpreter if he wishes, but I told him that if he’s more comfortable with Punjabi it is his right.
…
MEMBER: I don’t mind, but so far I’ve just observed, when the case officer was asking him certain things, like to say his name and so on, he was turning to the interpreter. He didn’t seem to understand very basic English things, which seems to concur with what he’s told me, that his English is very bad. Now, obviously that has a bearing on whether he’d going to be able to study at a university or, you know, a higher education course at that kind of institution, because presumably - are we speaking Punjabi? What language?
INTERPRETER: Yes, Punjabi.
MEMBER: Presumably courses aren’t conducted in Punjabi at university.
APPLICANT’S REPRESENTATIVE: In our submissions you’ve also seen that he has passed an English (indistinct) English course, so he can speak English, it’s just that I did give him - like I mentioned, before we started the hearing, he did ask me does he have an interpreter. I said, yes, that is his right, we have - he has the right to the interpreter, and because this Punjabi interpreter is there, it is within his right to speak through the interpreter (indistinct).
MEMBER: Well if you’re (indistinct) his right, if that’s what he wants to do.
APPLICANT’S REPRESENTATIVE: Well sorry - - -
MEMBER: It is up to me to assess his English language ability, if I think that that’s relevant.
APPLICANT’S REPRESENTATIVE: Yes, sorry. Apologies, Member. What I’m trying to say is that he is able to communicate in English, as he does with me, but if you’d like to speak to him in English, do encourage him to do so, but can I kindly request that if he has issues to understand yourself, Member, to allow him to then talk to the interpreter.
MEMBER: Of course. It’s completely up to him.
APPLICANT’S REPRESENTATIVE: Yes.
MEMBER: If he wants to speak in English he can speak in English. If he wants to speak in Punjabi he can speak in Punjabi.
APPLICANT’S REPRESENTATIVE: Thank you, Member.
MEMBER: All I’m saying to him is that, one way or the other, I think that’s it’s relevant whether - what level of English he has.
APPLICANT’S REPRESENTATIVE: Yes. Yes. Thank you, Member.
MEMBER: Because the other thing is, a lot of university courses you need quite high English marks to actually get into a course. Perhaps not with commercial cookery, but if you’re doing degree courses, which he appears to have - well, higher education courses, which he appears to have struggled 5 with, then he’s going to need a certain level of English. So it’s completely up to him. If you want to speak in English, speak in English. If you want to speak in Punjabi, you can speak in Punjabi. But all I’m saying is that you can speak in English, you can speak in Punjabi. You can speak in English. If you’ve got a problem you can use the interpreter to speak Punjabi. All I’m saying is that I may have to make an assessment about whether I think that you have the English necessary to successfully undertaken higher education courses at the university?---Okay, I will speak in English.
I just find it difficult to believe that - what you said before, that you can’t speak English very well, when you’ve - your lawyer has told me - and I’m assuming you’re a lawyer, Mr Tien?
The applicant argues that the second respondent’s comments demonstrate that it was “acting out of its jurisdiction by imposing its own authority to test the Applicant’s English ability where it is submitted that the Hearing should be conducted according to the law and not be a test of the Applicant’s English ability”.
The applicant’s assertion, however, that the Tribunal acted “out of its jurisdiction by imposing its own authority to test the applicant’s English ability” is not correct. The Tribunal’s task, in part, required it to consider if a ground for cancellation of the applicant’s visa had been made out. That required a consideration of whether he had not complied with visa condition 8516. In turn that required a consideration of whether the applicant continued to meet cl.573.223(1A) of Schedule 2 to the Regulations. In considering that matter, the Tribunal needed to consider whether it was satisfied that the applicant was a genuine applicant for entry and stay as a student, having regard to:
a)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
b)any other relevant matter.
What was relevant for that purpose was a matter for the Tribunal. No guidance is provided in the Regulations as to what might be seen as a relevant matter for that purpose. As the Tribunal member noted, the applicant’s ability to complete a higher education degree might be impacted upon by his English language skills and, by extension, his language skills might inform the Tribunal about whether the applicant is a genuine applicant for entry and stay as a student.
In oral submissions, the applicant argued that the Tribunal’s approach might have had a negative impact upon the applicant and left him in a position where he thought he must give his evidence in English and consequently, his ability to give evidence and provide explanations was compromised. There are a number of answers to that argument.
First, the Tribunal member made it clear that the applicant could give his evidence in Punjabi or English – the choice was his.
Second, the applicant gave no evidence before me that he did feel compromised or constrained by the Tribunal’s remarks concerning his use of an interpreter. There is no evidence that he was not able to express himself fully or completely or that he was unable to properly explain anything that he wished to put before the Tribunal.
The applicant does not establish that the Tribunal’s conduct of the hearing and specifically the Tribunal’s approach to and comments concerning the applicant’s use of any interpreter amounted to a denial of procedural fairness.
Ground two relied upon by the applicant provides:
The Second Respondent failed to provide natural justice to the Applicant and its decision was affected by a reasonable apprehension of bias where the Second Respondent indicated to the Applicant that the Second Respondent’s decision will be affected by whether the Applicant speaks English during the Hearing because not speaking in English during the Hearing may indicate to the Second Respondent that he is not able to "study at the right level". This places the Applicant at a disadvantage during the Hearing and affects the Applicant’s right to have an interpreter under Section 366C of the Migration Act 1958;
The applicant’s submissions demonstrated that there were two aspects to this ground. One aspect concerns the use of the interpreter and the comments recorded above by the Tribunal member. The other concerns the way in which the Tribunal responded to the applicant’s repeated attempts to put his case across to the Tribunal.
In order for the applicant to make out his case of apprehended bias, he needs to demonstrate that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to determining the application for review. As the first respondent points out, no inference of bias or pre-judgement can be drawn from the mere fact that the Tribunal made findings that were adverse to the applicant.
The first matter pointed to by the applicant as demonstrating an apprehension of bias is the suggestion in the ground of review, repeated in the applicant’s submissions, that the second respondent’s decision will be affected by whether the applicant spoke English during the hearing because not speaking English during the hearing might indicate to the second respondent that he is not able to study at the right level. But there is nothing in the transcript of the tribunal hearing before me that would indicate that was so. What the Tribunal member said was that it may affect the outcome of the hearing if the Tribunal assessed that the applicant’s English language was poor because it may go to whether he is able to study a higher education course at University. There is nothing objectionable about the approach taken by the Tribunal in that respect. It does not demonstrate a reasonable apprehension of bias against the applicant or in favour of cancellation of the visa.
Moreover, as the first respondent accurately submits, the Tribunal made no finding linking the applicant’s preference to have an interpreter at the Tribunal hearing to him being a student in Australia. The Tribunal’s findings, insofar as they touched upon the applicant’s English language ability, were:
24. The Tribunal finds that the applicant does not have the ability to successfully undertake a HE course in Australia. For 18 months the applicant attempted to complete a Certificate IV in business at two separate institutions and failed to do so. The Tribunal finds that if the applicant was unable to complete even a Certificate IV in Business he will be unable to complete a Bachelor of Business degree. The Tribunal does not accept that the applicant’s failure to pass any of his business courses in the past was attributable to having poor English ability at the time. He gave evidence that he had attained a 5.5 in an IELTS test prior to coming to Australia and completed an ELICOS course here before starting his business courses. In addition, the applicant was able to complete the Cookery course directly after failing to complete his business courses which also supports the view that it was not his language skills which prevented him from passing the business courses. The Tribunal notes that the evidence that he has recently received a 6 score in an IELTS test does not alter the Tribunal’s findings.
The second matter identified by the applicant arises from the following passage in the transcript of the hearing conducted by the tribunal (references are to the transcript in evidence):
Page 36, line 1 to 3:
Tribunal:It doesn’t make me change my- I haven’t made up my mind, but you keep repeating things to me isn’t going to influence the decision?
At Page 36, line 21 to 45
Tribunal:Stop. What are we doing now, what are we doing at the moment? You are just repeating the same things over and over and over?
Applicant:Yes, I want to say like this is the only mistake I did.
Second Respondent: You have said that?
Applicant: But in future ...
Second Respondent: You have said that?
Applicant: But in future I will in very short time ...
Second Respondent: You have said that?
Applicant: I maintain my bachelors ...
Second Respondent: You have said that?
Applicant: Yes.
Second Respondent: What it seems to me at the moment is I don’t know whether you think I have a mental problem or a hearing problem or a memory problem, but you continuing to repeat the same things over and over and over to me suggests to me that you think that I have one of these problems. I don’t have any of those problems.
Applicant: Yes I also tell like ...
Second Respondent: There is no point in you repeating the same thing over and over and over again to me. Is there anything that you [authorised representative] wanted to say?
The applicant submits that he was prevented from giving any further evidence because the second respondent felt that the applicant was “repeating the same thing over and over and over again”. A reading of the transcript demonstrates that the Tribunal’s comments in that regard were correct.
The applicant relies upon SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80. Before moving to the particular passage relied upon by the applicant from that judgment, it is as well to set out the following passages from the judgment of Flick J discussing the general principles concerning a denial of procedural fairness by reason of an alleged reasonable apprehension of bias:
21. A denial of procedural fairness on the part of an administrative tribunal, such as the Tribunal, may result in jurisdictional error justifying an order that a decision be set aside: cf. Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [17], 204 CLR 82 at 91 per Gaudron and Gummow JJ. See also: [2000] HCA 57 at [169] to [170], 204 CLR at 143 per Hayne J.
22. Where the denial of procedural fairness relied upon is an alleged reasonable apprehension of bias on the part of the decision-maker, such an apprehension must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. Although his Honour was there addressing the position of judicial officers when stating that “it is important that justice must be seen to be done”, that observation is equally applicable to decisions such as those made by the Tribunal. Similarly, it is equally important to recognise that such an allegation must not be too readily acceded to lest it encourages parties to seek to have their applications heard and resolved “by someone thought to be more likely to decide the case in their favour”: Id. Such an allegation must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [69], 205 CLR 507 at 531 per Gleeson CJ and Gummow J. It is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet”: Jones v Australian Competition and Consumer Commission [2002] FCA 1054 at [100], 76 ALD 424 at 441 per Weinberg J. An appeal from this decision was allowed, but no reservation was expressed by the Full Court as to his Honour’s observations in respect to the allegation as to bias: Jones v Australian Competition and Consumer Commission [2003] FCAFC 164, 131 FCR 216.
23. It is, accordingly, necessary for a Court to apply “realistic criteria”: Kwan v Kang [2003] NSWCA 336 at [77] per Sheller, Ipp and Tobias JJA. See also: Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd [2004] FCA 1537 at [21] and [54] per Crennan J; Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164 at [31], 119 ALD 565 at 574 per Bromberg J.
24. The application of such generally expressed propositions must necessarily take into account the legislative or other context in which a decision is being made. With specific reference to a decision of the Tribunal, Allsop J (as his Honour then was) observed in NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, 214 ALR 264 at 269:
[19] … The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
Moore and Tamberlin JJ agreed with Allsop J. “Robust and forthright testing of the appellant’s claims by the Tribunal”, it has similarly been said, “does not sustain a finding of apprehended bias”: SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17] per Barker J. See also: NAOX v Minister for Immigration and Citizenship [2009] FCA 1056 at [41] to [43], 112 ALD 54 at 61 per Spender J; SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125 at [47] per Logan J; SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045 at [18], 117 ALD 524 at 527 per Flick J.
The applicant relies upon the following passages from the judgment of Robertson J in SZRUI :
90. The Minister relied on VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [81]; Minister for Immigration & Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230 and Galea v Galea (1990) 19 NSWLR 263 at 279-80, 283 for the proposition that occasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias. The Minister also submitted that the fact that a member is sarcastic, mocking or rude, or displays insensitivity or if he or she otherwise fails to act in conformity with proper standards will not of itself constitute disqualifying bias: VFAB at [81].
91. Dealing with these contentions in turn, no doubt it is correct to say that occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal, while unfortunate and falling short of the desirable standards of good administration, do not of themselves establish disqualifying bias. But such matters are not irrelevant. Indeed I agree, with respect, with Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 where his Honour said at 10-11, in relation to a claim of actual bias:
It is obviously undesirable for decision-makers in the course of the hearing before them to be sarcastic or to make fun or mockery of witnesses or to show high personal indignation. In some cases this may be sufficient to establish actual bias; but generally it would be simply part of the factual matrix that must be taken into account…
The entirety of the circumstances must be considered.
Here the relevant passages from the transcript of the Tribunal’s hearing have been set out. Whilst the transcript reveals a degree of frustration on the part of the Tribunal member that results in the member making a sarcastic remark, it does not reveal, in my view, sufficient to conclude that a reasonable bystander would reasonably apprehend that the Tribunal may not have brought an impartial mind to determining the application for review. Neither the above passage alone nor in combination with the statements by the Tribunal about the prospect that his English speaking ability might be relevant indicates that the Tribunal had come to a fixed conclusion incapable of alteration in relation to the issue that needed to be determined by the Tribunal.
In my view, the applicant’s second ground of review does not demonstrate jurisdictional error on the part of the Tribunal.
Conclusion
For the foregoing reasons, the applicant should have an extension of time within which to commence his application for review, but the application for review filed on 13 September 2017 must be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Jarrett.
Date: 25 May 2018
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