SINGH v Minister for Immigration - [2017] FCCA 247

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 247

Catchwords:
MIGRATION – Student visa – failure of student to remain enrolled – application of s.359A of the Act – whether relevant enrolment information “given” to Tribunal – interaction between ss.359A and 359AA of the Act.

BIAS – Reasonable apprehension of bias – extensive review of authorities.

TRIBUNALS – Conduct of hearing – method of questioning – whether intimidatory – inquisitorial function of Tribunal – acceptable styles of questioning.

WITNESSES – Diverse personality traits of visa applicants rendering the style of questioning permissible or impermissible –extensive review of authorities.

Legislation:

Migration Act 1958 (Cth), ss.359A, 359AA, 424A

Migration Regulations 1994 (Cth), condition 8202 of sch.8

Cases cited:

First Applicant:

AMARJEET SINGH

Second Applicant:

SUSHMA KHADKE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2411 of 2014

Judgment of:

Judge Wilson

Hearing date:

24 October 2016

Date of Last Submission:

24 October 2016

Delivered at:

Melbourne

Delivered on:

16 February 2017

REPRESENTATION

Counsel for the Applicants:

Mr A. Solomon-Bridge

Solicitors for the Applicants:

Carina Ford Immigration Lawyers

Counsel for the First Respondent:

Mr L. Brown

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The name of the second respondent is amened to “Administrative Appeals Tribunal”.
The amended application filed 16 September 2016 is dismissed.
The applicants pay the costs of the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2411 of 2014

AMARJEET SINGH

First Applicant

SUSHMA KHADKE

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 247
Decision Date: 16 February 2017

CaseChat Overview and Summary

Singh (the applicant) sought judicial review of a decision by the Migration Review Tribunal (MRT) affirming the Minister for Immigration's refusal to grant a student visa. The applicant's student visa had been cancelled due to his failure to maintain enrolment in a registered course. The core of the dispute concerned whether the MRT had properly considered relevant information regarding the applicant's enrolment and whether the conduct of the hearing by the MRT gave rise to a reasonable apprehension of bias.

The court was required to determine two primary legal issues. Firstly, whether the MRT had failed to give proper consideration to the applicant's enrolment information, particularly in light of sections 359A and 359AA of the Migration Act 1958 (Cth). Secondly, the court had to assess whether the manner in which the MRT conducted its hearing, including the style of questioning employed by the Tribunal member, created a reasonable apprehension of bias on the part of the applicant.

In addressing the first issue, the court considered the meaning of "given" in section 359A of the Act, concluding that the information must be presented to the Tribunal in a manner that allows it to be considered. Regarding the apprehension of bias, the court undertook an extensive review of authorities on the principles of judicial and administrative bias. It emphasised that the test is an objective one, based on what a fair-minded lay observer, knowing the facts, would think about the impartiality of the decision-maker. The court also considered the inquisitorial nature of the MRT's function and the wide range of acceptable questioning styles, noting that the permissibility of certain questioning techniques can depend on the diverse personality traits of visa applicants. The court found that the questioning, while perhaps robust, did not reach a level that would lead a fair-minded observer to apprehend bias.

The application for judicial review was dismissed.

Orders