Ropama Pty Ltd v Minister for Immigration

[2015] FCCA 1322

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROPAMA PTY LTD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1322

Catchwords:
MIGRATION – Migration Review Tribunal – bias – whether the Tribunal should have been differently constituted – no jurisdictional error – application dismissed.

Legislation: 
Migration Act 1958, ss.360, 476

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: ROPAMA PTY LTD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 829 of 2015

Judgment of: Judge Street

Hearing date: 15 May 2015

Date of Last Submission: 15 May 2015

Delivered at: Sydney

Delivered on: 15 May 2015

REPRESENTATION

Solicitors for the Applicant: Mr M. Jones
Parish Patience Immigration Lawyers

Counsel for the First Respondent: Mr Hughes

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 829 of 2015

ROPAMA PTY LTD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ in respect of a decision of the Tribunal made on 4 March 2015 affirming a decision not to approve the nomination.  The application filed identifies the following grounds:

   1. The Second Respondent denied the Applicant procedural fairness:

   Particulars

   a. The Second Respondent was obliged under s 360(1) of the Migration Act 1958 (Cth) (Act) to invite the Applicant to appear before it and give evidence and present arguments relating to the issues arising in relation to the decision under review;

   b. In light of the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, the Second Respondent was obliged to notify the Applicant of an issue not considered dispositive by the Delegate but by reference to which the Tribunal was inclined to reach its decision on the review;

   c. By parity of reasoning, the Tribunal was obliged to notify the Applicant of a procedural issue relevant to its conduct of the review that had not arisen before the Delegate, specifically whether the Tribunal should be constituted by another member under ss 354 or 355 of the Act;

   d. The issue described in the preceding paragraph was critical in the present case as the member who constituted the Tribunal was a former legal representative of the Applicant's Director, with the result that the Tribunal should have notified the Applicant of the scope for the Applicant to make submissions on whether the Tribunal should be constituted by another member under ss 354 or 355.

2. Counsel for the applicant identified that this was not a case in which the applicant sought to advance any allegation of apparent bias.  The evidence adduced identified that the Tribunal member had more than 10 years ago acted in a professional capacity as a solicitor for the applicant.  At the time of the hearing before the Tribunal member at which the applicant appeared, the applicant gave evidence to this court that it took him five minutes to recognise the Tribunal member.  There is no suggestion that the Tribunal member recognised him nor was any issue raised by the applicant or disclosed by the applicant to his migration agent that there had been a past professional association with the Tribunal member.

3. The applicant gave evidence that his only dealings with the Tribunal member had been in a professional capacity as a solicitor, and that the Tribunal member was not a person who could be characterised as a close friend.  In the affidavit evidence that was adduced, the last email communication, which was not responded to by the Tribunal member and I infer was never received by the Tribunal member, was an email sent on 15 February 2009, which commenced:

   im wasfi suleiman an old customer for you 

4. It is clear that the relationship was such that even in 2009 Mr Wasfi Suleiman regarded it as necessary to identify who he was and that he was a former customer, and this was in respect of a communication some five years ago that was never responded to and I infer never received. 

5. The nature of the case advanced by the applicant is that there was a breach of s.360(1) of the Migration Act by reason of the Tribunal failing to disclose that there had been some previous association which may warrant the reconstitution of the Tribunal. The Tribunal, under s.360, is conducting an inquisitorial process, not an adversary process. In respect of that inquisitorial process, it’s clearly the position that there must not be conduct either actual or ostensible that could give rise to an apprehension of bias.

6. The fact that there is no argument developed in the present case to suggest that there was conduct or circumstances that could give rise to an apprehension of bias is a reflection of the fact that no reasonable person might believe that the Tribunal member failed to bring an impartial, independent mind to the determination of the adversarial process on its merits by reason of that slender professional association and the time that has elapsed. The reasons of the Tribunal are consistent with a determination of the matter on its merits. The Tribunal carefully identified the claims and evidence, identified the relevant regulations, and made a determination that was open on the material before the Tribunal.

7. The applicant sought to place reliance on the decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. I am clearly satisfied that the circumstances of the present case are distinguished from what occurred in that case. Moreover, I am satisfied, on the evidence that has been adduced before the court from Mr Wasfi Suleiman, that no reasonable person would conclude that the Tribunal member would have recalled who Mr Wasfi Suleiman was, or that he was a former client, particularly given Mr Wasfi Suleiman’s own acknowledged uncertainty five years earlier, in 2009. There is no jurisdictional error disclosed by the application. The application is dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  27 May 2015