SZJDS v Minister for Immigration

[2013] FCCA 1383

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZJDS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1383

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – whether Tribunal failed to exercise proper procedures – whether Tribunal’s decision affected by bias.

Legislation:  

Migration Act1958 (Cth) ss.48B, 116(1), 116(3), 359AA, 359A(1), 360(1), 417

Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877
SZHVL v Minister for Immigration and Citizenship [2008] FCA 356

Applicant: SZJDS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 455 of 2013

Judgment of: Judge Raphael

Hearing date: 10 September 2013

Date of Last Submission: 10 September 2013

Delivered at: Sydney

Delivered on: 10 September 2013

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $4,800.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 455 of 2013

SZJDS

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP & ANOTHER

Respondents

REASONS FOR JUDGMENT

1. This application seeks a review of a decision of the Migration Review Tribunal made on 6 February 2013.  This is not the first determination to have been reviewed.  The matter has a long and sorry history.  The applicant first came to this country, having been granted a subclass 426 (Domestic Worker) temporary – Diplomatic or Consular (visa) on 4 May 2004.  The visa allowed him to be employed as a private domestic worker to Mr AlAhrbi, a diplomatic official of the United Arab Emirates Embassy in Canberra.

2. The applicant arrived in Australia to commence this work in February 2005 and by all accounts carried it out effectively.  However, Mr AlAhrbi soon left the Embassy and the applicant was asked to work for the Ambassador himself.  This he agreed to do.  Unfortunately for him, no effort was made by the Ambassador to apply to the Immigration Department for a new visa.

3. The applicant’s employment with the Ambassador did not go well.  He was not paid a regular wage but subsisted on tips that were given out to him from time to time.  He worked for very long hours without thanks.  He worked not only for the Ambassador, but also for other people who stayed in the Ambassador’s home.  He complained to the Ambassador; this proved to be his undoing.  The Ambassador did not give much heed to these complaints or to the condition on the applicant’s visa, common to all these types of visa, that he be paid a proper wage and work proper hours.  Eventually the applicant could take the matter no further.  He decided to leave the Embassy.  After he had done this, the Embassy withdrew his sponsorship and advised the Department of that fact on 30 September 2005.

4. The applicant then made a series of applications and commenced court proceedings against the Embassy. The Department went through the usual procedures for the withdrawal of his visa, advising him that it intended to do this on the basis that the circumstances which permitted the grant of the visa no longer existed, one of the grounds, pursuant to which the Minister is entitled to cancel a visa under s.116(1) of the Migration Act1958 (Cth).[1]  The applicant made representations to the Department, but on 11 November 2005 it proceeded to cancel the visa.

   [1] The Act.

5. It is not entirely clear to me what happened between then and 6 November 2009; although I think within that period The applicant brought his proceedings against the Embassy for unpaid wages.  In any event he remained in Australia.  On 6 November 2009 the Department reissued a decision notice on the basis that it considered that the applicant had not been properly notified of its decision.  The applicant sought review of the decision from a Migration Review Tribunal.

6. The applicant was at this time, in 2010, represented by Legal Aid New South Wales which made representations on his behalf. Notwithstanding these representations the Tribunal confirmed the Department’s decision. But the Tribunal’s conclusions were reviewed, and on 13 March 2012 the Full Federal Court remitted the matter to the Tribunal on the basis that it had not validly invited the applicant to a hearing pursuant to s.360(1) of the Act.

7. The newly constituted Tribunal did invite the applicant to a hearing which took place on 4 December 2012. The Tribunal also discussed certain matters with him under s.359AA of the Act. And by letter on 13 December 2012, invited him to comment upon information in writing pursuant to s.359A(1). The applicant responded to that invitation on 8 January 2013, and on 6 February 2013 the Tribunal made a decision to affirm the original decision under review.

8. In the intervening period, the applicant made an application for a protection visa.  That also had a sorry history with the relevant Tribunal.  But in the end, after two remittals, a decision was forthcoming that was found by both this court and the Federal Court to have been made in accordance with law.

9. The matter before the Migration Review Tribunal with which this court is concerned is consideration of whether a visa, granted in 2004 and revoked originally in 2005, where the applicant has not worked in accordance with that visa since 2005, should be revoked.  It is only to state these facts to see how difficult the applicant’s task would be.  How can one reinstate a visa so that an applicant can work in an Embassy from which he has been excluded?   This is the problem with which the Tribunal wrestled: 

   “The Tribunal asked the applicant why he thought the visa should not be cancelled if the Tribunal was to consider whether the visa should be cancelled or not.  The applicant appeared uncertain, and the Tribunal put the question another way, by stating that the applicant had been granted a temporary visa for specific employment at a diplomatic mission, and notwithstanding the problems the applicant had experienced, the visa had in any case naturally expired more than 6 years ago. The Tribunal asked why in these circumstances he felt that the visa should not be cancelled.  The applicant said he wanted to go to a ‘good’ country ‘to have a good life’ because of the problems in his home country [Bangladesh].  Because he no longer had a visa for the UAE, and because of the problems in his home country, he wondered where he would go.  The Tribunal raised the issue that even if the visa was not cancelled, it would have run its natural course about 6 years ago.  The applicant stated that perhaps he could have continued his employment if the visa was not cancelled.” [23 CB98-99]

10. The letter which the Tribunal wrote to the applicant on 13 December 2012 asked him to comment upon information relating to his application for a protection visa and request for ministerial intervention.  The claims he raised in those applications and requests are in relation to his ongoing claim that he would experience problems if he had to return to Bangladesh.  The applicant made comments upon these in his letter of 8 January 2013.

11. In its findings and reasons the Tribunal made it clear that the overwhelming evidence was that the circumstances that permitted the grant of visa no longer existed, and that there was a ground for cancellation in s.116(1)(a). However, these grounds did not involve circumstances that required mandatory cancellation under s.116(3) and so the Tribunal proceeded to consider whether the power to cancel the visa should be exercised. The Tribunal set out at [35] the matters which it took into consideration in the exercise of its discretion. These are matters that were identified in the Department’s policy guidelines, but included any other matters that the visa holder might raise.

12. Some of the factors that the Tribunal considered were considered by it to weigh in his favour:

    “…the Tribunal is prepared to accept that the applicant experienced exceptional circumstances and problems relating to his employment, which led him to feel compelled to leave his employment at the Embassy and which resulted in his employer withdrawing the sponsorship.  The Tribunal considers this is a factor that may weigh in the applicant’s favour.”[37 CB102]

    And continuing further:

    “The Tribunal considers that if the applicant technically breached conditions of his visa through undertaking employment for the UAE Ambassador and at the embassy chancery without prior approval of the Australian authorities, he did not do so intentionally.  The Tribunal accepts that the applicant has complied with other visa conditions, and also accepts that he has co-operated with the Department.”[38 CB102]

13. At some stage in the Tribunal hearing, the applicant asked the Tribunal for some time so that he could try and secure other employment sponsorship:

    “The Tribunal acknowledges that the applicant has requested an opportunity to locate a sponsor for employment in Australia,  however the Tribunal considers that his plans and hopes in relation to the possibility of securing an employment sponsorship are very tentative and uncertain.”  [39 CB103]

14. The gravamen of the applicant’s claim to the exercise of the Tribunal’s discretion was that he could not return to the UAE because he had been out of that country for over six months, and he could not return to Bangladesh because of certain past political activities, and because of the fact that he had brought a case against the UAE authorities.  And then:

    “The applicant has had his claims formally assessed and has exhausted merits and judicial review relating to his protection visa application, and his request for Ministerial intervention under s.417 of the Act was unsuccessful. In addition, the outcome of the Department’s assessment of his claims in relation to the possible exercise of the Minister’s powers under s.48B of the Act was not favourable. The outcome of these assessments is that it has not been accepted that the applicant is owed protection obligations, or that his circumstances otherwise provide a basis for recommending Ministerial intervention. As the applicant has confirmed that no new matters have arisen in relation to these claims, the Tribunal is satisfied that cancellation of the visa would not lead to the applicant’s removal in breach of Australia’s non-refoulement obligations.”[42 CB104]

15. The Tribunal also considered the applicant’s general claim that it would be hard for him to return to Bangladesh, owing to the fact that he had been out of that country for some 14 years.  The Tribunal noted this, but also that he only had a temporary visa in the first place and that he still had family remaining in his home country.  The Tribunal concluded at [45 CB104] that:

    “…the factors which may weigh in favour of the applicant do not outweigh the fact that the basis on which the applicant’s temporary visa was granted no longer exists, and ceased to exist from the time his employer advised the Department on 30 September 2005 of the withdrawal of his sponsorship, and that the visa would have run its natural course and ceased in April 2006.  Considering the applicant’s circumstances as a whole, the Tribunal finds the visa should be cancelled.”  [45 CB104]

16. On 8 March 2013 the applicant filed an application with this court seeking review of the Migration Review Tribunal’s decision.  He had four grounds of application.  The first was:

    “The Migration Review Tribunal (MRT) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s visa cancellation by the Minister’s delegate.” 

17. It should be clear from these reasons that the Tribunal did not fail to exercise the proper procedures. It complied with all the requirements of Division 5. It invited the applicant to appear per s.360. It offered him an opportunity to consider clear particulars of information that it considered would be the reason or part of the reason for affirming the decision under review in accordance with s.359AA. It sent the applicant a letter in accordance with s.359A and considered his response. I am unable to see in the Tribunal’s decision record any suggestion that it failed to exercise proper procedures. This ground cannot succeed.

18. The second ground is:

    “The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.”

    This allegation of bias is taken up by the applicant in some written submissions that he provided to the court on 24 July 2013.  His complaint seems to revolve around the fact that the Tribunal took into account the findings of the Refugee Review Tribunal upon his protection claims.  He states:

    “The applicant believes that there is a reasonable argument that there was a failure to comply with the relevant section of the Migration Act in relation to the decision of the Tribunal and it was quite influenced and biased by the Refugee Review Tribunal decision.”

    The applicant did not believe that the Tribunal took a fresh look at the applicant’s claim. 

19. The applicant’s concerns may arise from a misunderstanding of the Tribunal’s decision and the way in which it undertook its task.  What the Tribunal was doing was exercising its discretion as to whether or not to confirm the cancellation of the visa.  It had made clear that there were grounds for cancellation.  It was then looking to see whether or not it could still refuse to allow the cancellation on any of the discretionary grounds. 

20. The applicant himself put up to the Tribunal that his personal circumstances were one such ground. His personal circumstances included the fact that he did not believe that it was safe for him to return to Bangladesh or the UAE. Those were matters that the Refugee Review Tribunal considered, the courts considered on review and the Minister considered through the applications under s.417, and for the exercise of his powers under s.48B.

21. The Tribunal was perfectly entitled to take these things into account.  Essentially, it felt that the applicant had exhausted every possible channel of persuading the authorities in this country that he genuinely had a concern about returning to Bangladesh.  Perhaps the only one left out was the applicant’s concern of returning to a country he had not been in for 14 years.  But the Tribunal looked at this and came to a conclusion upon it.  In my view, the Tribunal was entitled to take the course that it did.  It was fair to the applicant to do so.  It did not show any bias, far from it.

22. As Landa J said in Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877.

    “[58] The principles relating to actual bias arising out of prejudgment were considered by the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421. Gleeson CJ and Gummow J said at [72]:

    ‘The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.’

    [59] Actual bias is not easily proved. It requires proof that the decision maker was biased and that the decision maker approached his/her function with a closed mind and so firmly closed that, notwithstanding whatever evidence or arguments were put before the decision maker, the decision maker’s predetermined decision would not vary. To determine whether a decision maker is biased requires an examination of that person’s subjective state of mind.”

23. Having considered the Tribunal’s decision record as a whole, I believe that it is not possible to make out even the faintest hint of this type of attitude on the part of the Tribunal.  McKerracher J said in SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [17]:

    “It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. See also SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ.”

24. The third ground of application was:

    “The second respondent (the “tribunal”) denied the applicant natural justice and procedural fairness pursuant to s.425, s.424A and s.425A of the Migration Act 1958.”

    It is clear that whoever wrote these words for the applicant was not familiar with the fact that the rules relating to natural justice in Migration Review Tribunal proceedings are contained in Division 5 of the Act.  I have already indicated that in my view those obligations were complied with and so this ground cannot succeed.

25. The final ground for the application was:

    “The applicant was deprived of the natural justice and procedural fairness. Because the decision maker did not afford the applicant whose interest has adversely affected by the decision as it did not given the opportunity to present his case.  The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognised as a denial of procedural fairness.” [As in original] 

    This complaint seems to be a clarification of the complaint made under ground 3 and suffers from the same deficiency.

26. When the applicant appeared before me today he told me that he relied entirely upon his 22 July 2013 submissions.  As I have indicated, the gravamen of those was that the Tribunal was biased because it took into account the decisions of the Refugee Review Tribunal and the Minister.  Having found that I do not believe that this is the case, I am not in a position to grant the applicant the review he seeks.  The application must be dismissed and the applicant must pay the respondent’s costs which I assess in the sum of $4,800.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  17 September 2013