Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 253
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 253
File number: PEG 269 of 2020 Judgment of: JUDGE LADHAMS Date of judgment: 11 April 2022 Catchwords: MIGRATION – whether refusal by the Tribunal to grant an adjournment was unreasonable or denial of procedural fairness – where Secretary provided adverse information to Tribunal and issued 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 – materiality - whether Tribunal decision was affected by apprehended bias – whether Secretary’s provision of adverse information amounted to fraud on the Tribunal – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 352, 359A, 362A, 376, 476
Migration Regulations 1994 (Cth), cll 457.221, 457.223
Cases cited: Ashraf v Minister for Immigration and Border Protection (2018) 261 FCR 97; [2018] FCAFC 50
CNY17 v Minister for Immigration & Border Protection (2019) 268 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
Huong’s Food Services Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 254
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Lo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 895
Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Mora v Minister for Immigration and Border Protection [2018] FCA 1819
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: 81 Date of hearing: 26 August 2021 and 5 October 2021 Place: Perth Counsel for the Applicant: Mr Stephen Walker Solicitor for the Applicant: Western Legal Counsel for the First Respondent: Mr Varun Ghosh Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison ORDERS
PEG 269 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THU HUONG NGUYEN
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 seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 18 August 2020. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the visa applicant a Temporary Business Entry (Class UC) visa (visa). The application to this Court is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The original application for judicial review was filed on 16 September 2020. On
18 August 2021 the applicant filed an 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.
In applying for the visa, the applicant was sponsored by a company, Huong’s Food Services Pty Ltd (Huong’s Food) of which the applicant was the sole director and shareholder at all material times. Prior to the Tribunal’s decision in the present case, the Tribunal affirmed a decision made by a delegate of the Minister not to approve a sponsor nomination made by Huong’s Food. Huong’s Food sought judicial review of that decision in application PEG 250 of 2020. The grounds in this application are the same as the grounds in PEG 250 of 2020 and these reasons for judgment should be read together with those in PEG 250 of 2020, Huong’s Food Services Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 254 (Huong’s Food judgment).
I have found that there is no jurisdictional error in the Tribunal decision. Accordingly, the application is dismissed.
BACKGROUND
The applicant is a non-citizen who applied for applied for the visa on 14 March 2017. She indicated in her application that she was sponsored by Huong’s Food and provided with her application a letter from Huong’s Food offering her employment as a café manager.
On 11 August 2017 the Department of Immigration and Border Protection sent to the applicant an invitation to comment. The letter advised that Huong’s Food did not have an approved nomination for the applicant and, as a result, her visa application would be unlikely to be successful.
On 11 September 2017 the applicant, through her representative, responded to the invitation to comment indicating that she was not inclined to withdraw her visa application, and that the Department should proceed to refuse her visa application so she could exercise her right to appeal.
The delegate refused to grant the applicant the visa on 25 September 2017 on the basis that the applicant was not the subject of an approved nomination and therefore did not meet cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 4 October 2017 the applicant lodged with the Tribunal an application for review of the delegate’s decision. At that time, Huong’s Food also had an application before the Tribunal for review of a decision made by a delegate refusing the application to sponsor the applicant.
On 4 May 2018 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 can be summarised as allegations that in 2007, the applicant 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 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. The Tribunal did not inform the applicant of the existence of the certificate or the content of the information covered by the certificate.
On 29 May 2020 the Tribunal invited the applicant to attend a combined hearing on 17 June 2020 in relation to her application and the application lodged by Huong’s Food. On
10 June 2020 the applicant, via her representative, requested that the hearing be deferred to late July or early August 2020 to allow the hearing to be conducted in person or by video and to await the outcome of a proposed application by Huong’s Food for a standard business sponsorship approval. The hearing was rescheduled to 7 July 2020.
The combined hearing proceeded on 7 July 2020 by video. At the hearing the applicant gave evidence on her own behalf and on behalf of Huong’s Food, with the assistance of an interpreter in the Vietnamese and English languages.
On 10 July 2020 the applicant and Huong’s Food provided further submissions to the Tribunal. Amongst other things, the submissions confirmed that Huong’s Food had submitted a new standard business sponsorship application shortly before the Tribunal hearing and indicated that a decision was expected by around 3 August 2020.
On 22 July 2020 the Tribunal made a decision in the related application by Huong’s Food to affirm the delegate’s decision not to approve Huong’s Food’s nomination application.
On 23 July 2020, pursuant to s 359A of the Migration Act, the Tribunal sent to the applicant an invitation to comment on or respond to information. The invitation provided particulars of information, explained why it was relevant and indicated that if it relied on the information, it might find that the position specified in the applicant’s visa application was the not the subject of an approved nomination, meaning that the applicant would not satisfy an essential criteria of the visa. The particulars of the information provided were:
The application for approval of the nominated position made by Huong’s Food Service Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.
On 4 August 2020 the applicant’s representative sent an email to the Tribunal which relevantly said:
We are instructed by our client as follows:
Notwithstanding that the Tribunal did not wait to see if the pending SBS sponsorship in the Department of Immigration was able to be approved, and instead made a decision affirming the refusal of a SC457 nomination in the associated matter of Huongs Food Services Pty Ltd … they have today been notified of a new SBS approval for their employer. This was canvassed with the Tribunal at hearing. Please see the attached advice from the Department of Home Affairs.
They are now considering submitting a further SC482 nomination by the business for the same position, and if this is approved by DHA then the Tribunal may well be minded to remit the visa application to the Department.
They have asked if they could kindly have a two month extension to respond to your invitation to comment so that advertisements for a new nomination can be placed for the necessary 28 days; and other appropriate time limited departmental procedures be undertaken. This in an effort to lodge and then seek early approval of a new nomination.
On 7 August 2020 the Tribunal notified the applicant that the Tribunal had granted an extension of the time in which the applicant could respond to the s 359A letter to 13 August 2020. The Tribunal letter provided the following reason for not granting a longer extension of time:
In relation to specific request for an extension of time for two months “so that advertisements for a new nomination can be placed for the necessary 28 days; and other appropriate time limited departmental procedures be undertaken” as you are “now considering submitting a further SC482 nomination by the business for the same position” the Tribunal is not satisfied that this request goes to the merit of the matter before the Tribunal which is your subclass 457 visa application.
The applicant did not provide any further comment or response by 13 August 2020.
On 18 August 2020 the Tribunal affirmed the decision not to grant the applicant the visa.
TRIBUNAL DECISION
The Tribunal identified that the issue to be determined was whether the applicant met the criteria in cl 457.223(4)(a), which requires that there is an approved nomination relating to the applicant by a standard business sponsor that has not ceased.
The Tribunal noted that the nominator’s application for review of the decision to refuse their nomination was unsuccessful when the Tribunal affirmed the decision on 22 July 2020 because the nominator was found not to be a standard business sponsor.
The Tribunal then set out the procedural history of the matter, referring to the s 359A letter, the applicant’s response to that letter and the request for a two month extension of time, the Tribunal’s decision to grant an extension of time until 13 August 2020, and the applicant’s failure to provide any further response by that time frame.
In relation to the request for a further two months to respond to the s 359A letter, the Tribunal noted that it provided reasons for not acceding to this request in its correspondence of 7 August 2020, and further said at [16]:
The application for review before the Tribunal is for a subclass 457 visa. In this case the nomination was refused and the nomination refusal has been affirmed by the Tribunal. Subclass 457 visa’s were abolished from 18 March 2018. While theoretically possible, the Tribunal is satisfied that there is, in reality, little opportunity for a sponsorship to still be available that aligns with the occupation for which the applicant in this case could transfer their application to. A subclass 482 visa application and nomination are not the subject of the review application before the Tribunal.
The Tribunal found that the applicant was not the subject of an approved nomination of an occupation by a standard business sponsor that has not ceased and therefore did not meet the requirements of cl 457.223(4)(a) of the Regulations. For this reason, the Tribunal affirmed the delegate’s decision.
PROCEEDINGS BEFORE THIS COURT
The applicant raises the following grounds in the amended application:
(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.
The application first came before the Court for hearing on 26 August 2021. On that occasion, it was listed together with PEG 250 of 2020. I raised a number of 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 being conflated. One of the concerns that I raised about this application was that at least some of the grounds of review appear to be directed to the Tribunal decision in relation to Huong’s Food, and not the Tribunal decision in this matter, without any explanation offered in the grounds or the submissions as how the decision in this matter was affected.
Both parties filed clarifying 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 250 of 2020 as relevant to both applications. The evidence comprised the court book in each matter and an affidavit sworn by the applicant 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 Huong’s Food 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 the applicant’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, the applicant deposed that, having seen the adverse information, her suspicion as to its likely nature and origin was 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 she 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 the applicant could have provided to the Tribunal had she been advised of the existence of the s 376 certificate and the gist of the information covered by that certificate.
CONSIDERATION: RELATIONSHIP WITH PEG 250 OF 2020
The submissions advanced by the applicant in relation to this matter are, for the most part, very similar to the submissions advanced by Huong’s Food in PEG 250 of 2020.
At the end of the applicant’s written submissions filed on 10 September 2021, the applicant raises in this matter a ‘further or alternative basis for finding that the visa decision was affected by jurisdictional error’. It is convenient to deal with that ‘further or alternative basis’ first.
The applicant relied on Mora v Minister for Immigration and Border Protection [2018] FCA 1819 (Mora) to submit that any jurisdictional error in the Tribunal decision relating to Huong’s Food would also result in jurisdictional error in the Tribunal decision relating to the applicant because the nomination and visa decisions were inextricably linked.
In Mora at [54]-[55], Collier J said:
54The Minister further submitted that the effect of a finding that the nomination decision was affected by jurisdictional error did not have the effect that the first appellant was then subject to an approved nomination. To the contrary, in such event the first appellant would continue to fail to satisfy the requirement that she was the subject of an approved nomination.
55However, in my view it is illogical that the visa decision could be valid notwithstanding the invalidity of the nomination decision. I take this view for the following reasons:
•Decisions relating to nominations and the grant or refusal of visas within this particular statutory context are inextricably linked. This was explained by the Tribunal itself in the visa decision at [12] and [16]. Although only criterion for the grant of a 457 visa, being the subject of an approved nomination is an essential aspect of a successful application for a 457 visa and a significant part of the consideration of the relevant decision-maker – see cl 457.223(4)(a).
•As a matter of fairness and logic, because the appellants have been successful in challenging the nomination decision, and the visa decision was made on the basis of that nomination decision, the visa decision should not stand. In this regard I also note that if it were the case that the visa decision remained valid and in force notwithstanding jurisdictional error in the nomination decision, an order quashing the nomination decision and remitting it for consideration by the Tribunal would essentially have no effect, and indeed no operation in relation to the purpose for which the application was made – being relevant in these circumstances to the employment of the first appellant by the Trust.
I found in the Huong’s Food judgment that the Tribunal decision affirming the refusal of the nomination is not affected by jurisdictional error. It follows that there can be no consequential jurisdictional error in the present matter and the principle discussed in Mora has no application in the present case.
CONSIDERATION OF GROUNDS IN APPLICATION
It remains appropriate to consider whether any of the grounds raised by the applicant otherwise give rise to jurisdictional error independently of the decision in relation to Huong’s Food.
Although the grounds are substantially identical and the submissions similar in relation to the two separate applications, the way in which the issues fall to be considered in each application is, in some ways, different.
GROUND 1, PARTICULAR (A) AND GROUND 2: REFUSAL OF ADJOURNMENT REQUEST
The particulars of these grounds make clear that the adjournment request referred to is a request for the Tribunal to adjourn the scheduled hearing or defer making a decision until the outcome of a new application by Huong’s Food for a standard business sponsor approval had been determined.
This is the same adjournment request that I considered in the Huong’s Food judgment. The applicant submitted, and I accept, that the adjournment request was made on behalf of the applicant as well as Huong’s Food.
In the Huong’s Food judgment, I found that the Tribunal did not deny Huong’s Food procedural fairness in refusing to adjourn the review or defer its decision until after the new standard business sponsor approval application had been determined. I also found that the Tribunal decision was not affected by legal unreasonableness.
In his oral submissions, Mr Walker explained the relationship between the grounds in this application and the corresponding grounds in Huong’s Food’s application as follows:
So ground 1, asserting, as Ms Nguyen does, that the deferral decision, the decision not to defer, was both procedurally unfair and legally unreasonable. She says the same things as does the company. But not in a parasitic way. Not by piggybacking on top of the company and saying, “well, whatever affected the company, affected me”. Whilst it is correct and valid for her to say such a thing, in the first instance, that’s not what she says. In the first instance, she says, “I was the applicant for a visa. The criteria which I had to satisfy to get that visa required — that in order for me to succeed, required a nomination by a company, or by business, by someone, a nomination that had been approved. Without me establishing that there was an approval of the nomination of a position, I will be bound to fail in my request for this visa.”
In circumstances where I have found that there is no denial of procedural fairness or legal unreasonableness in the Tribunal refusing to grant an adjournment or defer its decision in relation to the company, it follows that I also find that there is no jurisdictional error in that decision insofar as it impacts the applicant. It may be, as Mr Walker submitted, that the manner in which the Tribunal’s refusal of the adjournment request impacted the applicant was slightly different to the manner in which it impacted Huong’s Food. However, even if this is the case, there is nothing additional in the manner in which the adjournment refusal impacted the applicant that would give rise to jurisdictional error in the applicant’s case, in circumstances where there was no jurisdictional error in Huong’s Food’s case.
Therefore, to the extent that, in advancing these grounds, the applicant relies on the same or similar submissions and considerations that Huong’s Food relied on in relation to the Tribunal’s refusal to adjourn the review or defer its decision until after the new standard business sponsorship approval application had been determined, the ground cannot succeed for the same reasons as I found that it did not succeed in the Huong’s Food judgment.
There is, however, a further fundamental difficulty for the applicant in the present proceeding. That difficulty is that the ground fails at a factual level. The Tribunal made its decision to affirm the delegate’s decision relating to the applicant on 18 August 2020, which was after the date to which the applicant had requested the Tribunal defer its decision, and after the outcome of the standard business sponsorship approval application became known. At a practical level, it cannot be said that the Tribunal refused the request to defer making its decision in the applicant’s case until after the standard business sponsorship application was determined. The problem for the applicant, however, was that the Tribunal had already affirmed the delegate’s decision to refuse Huong’s Food’s nomination application by this time. Therefore, the applicant in the present matter could not meet the substantive criteria for the grant of the visa.
There was a second request for an adjournment made in relation to the applicant’s matter. That request was made to enable a new nomination application to be lodged in relation to a subclass 482 visa. The Tribunal refused to grant that adjournment because it did not relate to, and could not realistically affect, the review before it. Mr Walker confirmed in his oral submissions that there is no challenge to that decision.
Ground 1, particular (a) and ground 2 are not established.
GROUND 1, PARTICULARS (B) AND (C): DENIAL OF PROCEDURAL FAIRNESS ARISING FROM S 376 CERTIFICATE
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 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].
In the present case, the Tribunal received a notification under s 376 of the Migration Act in a certificate issued by the Secretary. The Tribunal did not disclose the fact of notification nor the existence of the certificate to the applicant. It therefore denied the applicant procedural fairness. I consider below whether this breach was material.
While the applicant has submitted that the provision of the materials covered by the s 376 certificate was invalid (and this is addressed in relation to ground 4 below), there is no submission that the certificate itself is invalid. I am satisfied that the s 376 certificate is valid. The information in the Border Watch Allegations Team web form was said to be provided in confidence, and while there was no name of the informant recorded on the form, the informant was easily identifiable by the applicant from the nature of the allegations.
As a consequence of the issue of the valid s 376 certificate, the Tribunal’s discretions in s 376(3) were enlivened. The Tribunal had the discretion to take the information into account, but it was not required to do so. Likewise, the Tribunal had the discretion to disclose the information to the applicant, but was not required to do so.
This is particularly relevant to particular (b) which asserts 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, and I find that it did not rely on the information in reaching its decision. The Tribunal decision in this matter was made simply on the basis that the applicant did not meet the criteria for the visa because there was not an approved nomination in relation to her position. The only other issue that the Tribunal addressed in its reasons was the adjournment request to allow the company to make a new nomination application.
There is one further aspect of the procedural fairness argument that should be addressed before I turn to materiality. Prior to the Tribunal’s receipt of the adverse information, the applicant had made a request to the Tribunal for access to documents under s 362A of the Migration Act. The Tribunal granted the applicant access in full to the documents on its file at that time. The applicant referred to this request for material in advancing her submissions to this Court in relation to ground 1 and it was submitted that the applicant believed that she had access to all of the material at the time of the Tribunal hearing and decision. In my opinion, the grant of access to material under s 362A of the Migration Act prior to the receipt by the Tribunal of the adverse information covered by the s 376 certificate does not add to the denial of procedural fairness in any way. Section 362A(1) is expressed to be subject to s 376, and s 376(3) makes clear that there is no obligation on the part of the Tribunal to disclose the documents covered by the certificate. Accordingly, irrespective of whether or not there was a request to access material under s 362A, the Tribunal was not obliged to disclose the adverse information to the applicant.
I then turn to whether the denial of procedural fairness by the Tribunal, in failing to advise the applicant of the existence of the s 376 certificate, was material. A breach of the requirements of procedural fairness will only amount to jurisdictional error if the breach could realistically have deprived the applicant of the opportunity of a successful outcome: SZMTA at [45].
I find that the Tribunal’s failure to disclose the existence of the certificate to the applicant was not a material error. Nothing in the certificate or the materials covered by the certificate could realistically have been relevant to the Tribunal’s decision in this matter. As indicated above, the Tribunal decision turned on a very discreet point, namely, that there was not an approved nomination in place. The applicant has not challenged this finding and there is no apparent basis on which this finding could successfully be challenged.
I have had regard to the applicant’s evidence about how she would have responded to the information covered by the certificate had she been aware of it. However, this response is not relevant to the criteria considered by the Tribunal, and the applicant’s credibility was never in issue. The applicant has not been deprived of the opportunity of a successful outcome as a result of the Tribunal’s failure to disclose the existence of the s 376 certificate.
Accordingly, ground 1 particulars (b) and (c) are not established.
GROUND 3: APPREHENDED BIAS
The submissions of the parties in relation to the assertion of apprehended bias in ground 3 are substantially similar to the submissions advanced in Huong’s Food’s application. Those submissions are summarised in the Huong’s Food judgment and do not need to be repeated here. To the extent that the apprehended bias ground relates to the decision of the Tribunal not to defer its consideration of the nomination application decision until after the new standard business sponsorship application had been assessed, I find that there is no apprehended bias for the same reasons that I gave in the Huong’s Food judgment.
There is a separate question that may arise in this matter, and that directs attention to the precise nature of the decision made by the Tribunal in relation to the applicant. The reasons below focus on whether the final decision made by the Tribunal in this matter is affected by apprehended bias.
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) 268 CLR 76; [2019] HCA 50 at [17], [56], [132] (CNY17); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6], [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], [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.
I accept that the adverse information was prejudicial to the applicant, and would be perceived as such by the hypothetical fair-minded lay observer. I am prepared to accept for the purpose of assessing apprehended bias that the adverse information was irrelevant to the decision actually made by the Tribunal. As discussed below in relation to ground 4, the information may have been relevant had the review application been decided on a different basis, but that is not material for the purpose of this ground.
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 reasonable 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 visa for which she had applied, but also made a number of positive remarks about the applicant. These included comments that the applicant had done a good job with the business, she has a passion for the business that comes across as great, she is doing good things for herself and the community, and that the Tribunal member appreciated what the applicant 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 have led the Tribunal to decide the case other than on its legal and factual merit is that the prejudicial information could potentially have caused the Tribunal to form the view that the applicant is a person of poor character who might not be deserving of a visa.
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; [2011] HCA 48 at [33], [67]; Ebner at [8]. In the present matter, the Tribunal decided to affirm the delegate’s decision on the basis that there was not an approved nomination in place.
The hypothetical fair-minded lay person would be aware that whether or not there is an approved nomination in place is an objectively ascertainable factual issue. There was no scope for any conscious or subconscious assessment of the applicant’s character in finding that there was not an approved nomination in place. The applicant’s credibility was never an issue for the Tribunal. Further, the applicant does not challenge that there was not an approved nomination in place. In these circumstances, 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 there was not an approved nomination for the applicant’s position.
For the same reasons that I discussed in the Huong’s Food judgment, I do not accept that the movements details document establishes apprehended bias in any way. That document shows the applicant’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 the applicant. 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 the applicant. 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 the applicant 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
Once again, the submissions advanced by the parties in relation to ground 4 are substantially the same as those advanced in the application made by Huong’s Food. They are summarised in the Huong’s Food judgment and I do not repeat that summary here.
I do not consider that the provision of the adverse information to the Tribunal in the applicant’s case amounts to fraud on the Tribunal in the sense discussed in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [47]-[51]. There are two main reasons for this. First, I do not consider the provision of the document containing the adverse information to be improper. Second, even if I am wrong in that finding, there is no evidence before the Court from which I could conclude that the Secretary acted with any improper purpose or had the requisite intention to engage in fraud on the Tribunal. I elaborate on these reasons below.
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 the applicant 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 contained an allegation that was relevant to the assessment of the application.
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 the applicant’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 the applicant breached her visa conditions. The time of decision criteria in cl 457.221 required the applicant 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.
CONCLUSION
I find that there is no jurisdictional error in the Tribunal decision. I therefore dismiss the application.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 11 April 2022
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