LIAO v Minister for Immigration
[2019] FCCA 3727
•18 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIAO v MINISTER FOR IMMIGRATION | [2019] FCCA 3727 |
| Catchwords: MIGRATION – PRACTICE & PROCEDURE – Application in a case requesting recusal – whether a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits – no apprehended bias made out – application in a case dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.16 |
| Cases cited: Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 |
| Applicant: | HAIDENG LIAO |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 3046 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 18 December 2019 |
| Date of Last Submission: | 18 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | ProActive Legal |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | AGS |
ORDERS
The application in a case filed on 9 December 2019 is dismissed.
DATE OF ORDER: 18 December 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3046 of 2019
| HAIDENG LIAO |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application in a case filed on 9 December 2019 requesting the Court to recuse itself in respect of proceedings that were commenced on 21 November 2019.
Those proceedings commenced by an originating application filed on 21 November 2019 which was supported by a certificate issued under s 486I of the Migration Act 1958 (Cth) (“the Act”), being a lawyer’s certification. The application is one in respect of which there is sought a declaration. The language in the declaration is “proposed to be used”. The language in the writ of mandamus is “funds proposed to be used”.
The proceedings were brought at a stage where a delegate of the respondent (“the Delegate”) had not yet made a decision in respect of a Business Skills (Provisional) (Class EB) (subclass 188) visa application that facilitated the grant of a visa where certain requirements were met under the application.
The requirements of cl 188.252(1) of sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) provided as follows:
(1) The applicant has made, on or after the time of application, a complying significant investment (within the meaning of regulation 5.19C as in force at the time of application) of at least AUD 5 000 000.
The Delegate engaged in a step anticipatory to the decision foreshadowing that, on the evidence currently before the Delegate, the Delegate was unlikely to be satisfied in relation to the requirements of the relevant provision. There was no statutory obligation upon the Delegate to do so.
This Court has jurisdiction under s 16 of the Federal Circuit Court of Australia Act 1999 (Cth) in respect of declaratory declarations of right, which provides as follows:
(1) The Federal Circuit Court of Australia may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A proceeding is not open to objection on the ground that a declaratory order only is sought.
There is a very large volume of case law about the nature of declaratory relief and when one has such a right and the inability to seek declaratory relief if proceedings are hypothetical or speculative.
The very language of the declaration and the alleged writ of mandamus identified on the originating application and certified by a lawyer on 20 November 2019 identified the hypothetical nature of the relief that was being sought seeking to invoke this Court’s jurisdiction.
The solicitor filed a further application on 22 November 2019 which, again, contained the same hypothetical identification of the relief which was proposed to occur.
The proceedings were then the subject of orders by Judge Barnes, who sought to standover a question as to whether or not there should be an interlocutory injunction granted in relation to the proceedings.
This Court, having looked at the material and the state that the Delegate’s decision had reached, was concerned that a question appeared to arise as to whether the substantive proceedings are within the jurisdiction of the Court.
The Court made orders on 4 December 2019 as follows:
THE COURT ORDERS THAT:
1. Order 1 made on 4 December 2019 is varied so as to read “The matter is fixed for final hearing at 2:15pm on 18 December 2019”.
2. Order 2 made on 4 December 2019 is varied so as to read “The applicant file and serve any further affidavit evidence and further written submissions on or before 9 December 2019”.
3. Order 3 made on 4 December 2019 is varied so as to read “The respondent file and serve any affidavit evidence and further written submissions on or before 13 December 2019”.
4. The parties have liberty to apply on 2 day’s notice.
THE COURT NOTES THAT:
1. The Court expects the parties and the author of the certificate under s 486I of the Migration Act 1958 (Cth) to be in a position to address whether an order under s 486E of the Migration Act 1958 (Cth) should be made if the proceedings are dismissed.
It is the notation that is said to be part of the conduct by reason of which it is alleged the Court should recuse itself. That notation clearly identifies the preliminary nature of the question that might arise by the language “if the proceedings are dismissed.”
On the plain face of the order and the notation, a reasonable observer would not consider that the Court has committed to a conclusion already formed, incapable of alteration, whatever the evidence or arguments: see Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [25].
The other conduct identified is the absence of the conclusion of the evidence. A reasonably informed lay observer, identifying the tests that have been enunciated most recently in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, relevantly, at [56] and [57] and Isbester v Knox City Council [2015] HCA 20, relevantly, at [12], [20] to [21] and also at [59], would be aware of the certification process identified under s 486I of the Act by a lawyer where proceedings are commenced through a lawyer in respect of the Act.
A reasonably informed lay observer would also be aware that, before any order might be made in relation to s 486E of the Act, the relevant person would have to be given an opportunity to be heard. A reasonably informed lay observer would be aware of the language in the notation that identified the qualification as to if the proceedings are dismissed identifying nothing more than a tentative view, as identified in Johnson v Johnson (2000) 201 CLR 488 at 493.
The absence of a conclusion of the evidence is not a basis upon which a fair-minded lay observer might reasonably apprehend that this Court might not bring an independent and impartial mind to the determination of the matter on its merits, either in respect of the substantive application or in relation to any issue that arises under pt 8B of the Act. Nor is the conduct identified by reference to the notation conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits.
The conduct has no identified basis upon which a reasonably informed lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the matter on its merits. The conduct identified is not such as to reasonably identify a cause by reason of which this Court would depart from a neutral evaluation of the issues in respect of the substantive proceedings or the issues under pt 8B of the Act otherwise than on its merits.
The conduct identified does not, as a matter of reasonableness, support an apprehension of deviation from a determination of the matter with an open mind, reasonably capable of persuasion as to the merits. No case of apprehended bias is made out.
Accordingly, the application in a case filed on 9 December 2019 is dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 18 December 2019 and the parties were provided sealed copies of the Court’s orders
Associate:
Date: 5 March 2020
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