Talha v Minister for Immigration
[2014] FCCA 2191
•23 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TALHA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2191 |
| Catchwords: MIGRATION – Migration Review Tribunal – allegations of reasonable apprehension of bias and denial of natural justice. |
| Legislation: Migration Act 1958, s.359AA Migration Regulations 1994, cl.485.213 of Sch. 2, cl.485.213(a) of Sch. 2 |
| Cases cited: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; (2001) 179 ALR 425; (2001) 9 Leg Rep 20; [2001] HCA 28 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 |
| Applicant: | MOHAMMED AWAIZ TALHA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 2005 of 2013 |
| Judgment of: | Judge Riley |
| Hearing date: | 28 July 2014 |
| Date of last submission: | 28 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 23 September 2014 |
REPRESENTATION
| Solicitor Advocate for the applicant: | Kimani Boden |
| Solicitors for the applicant: | Starnet Legal |
| Solicitor Advocate for the first respondent: | Bromley Hornsby |
| Solicitors for the first respondent: | Sparke Helmore |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Sparke Helmore |
ORDERS
The application filed on 21 November 2013 and amended on 25 July 2014 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2005 of 2013
| MOHAMMED AWAIZ TALHA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Migration Review Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent refusing the applicant a Skilled (Provisional) (Class VC) (subclass 485) visa. The delegate considered that the applicant had not satisfied the Australian study requirement in the six months ending immediately before the day on which the visa application was made. Consequently, the delegate concluded that the applicant did not satisfy cl.485.213 of Sch. 2 to the Migration Regulations 1994.
The applicant is an Indian national who was born in 1986. He came to Australia in June 2008 on a subclass 572 student visa. On 2 August 2011, the applicant applied for the subclass 485 visa.
In its reasons for decision, the Tribunal accurately summarised the relevant provisions as follows:
4.Clause 485.213(a) requires that the applicant satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the visa application date. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a)that are registered courses; and
(b)that were completed in a total of at least 16 calendar months; and
(c)that were completed as a result of a total of at least 2 academic years study; and
(d)for which all instruction was conducted in English; and
(e)that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
5.Clause 485.213(b) requires that each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
6.Regulation 1.03 defines ‘registered course’ as a ‘course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students’.
7.‘Academic year’ means a period that is specified by the Minister in an instrument in writing: r.1.03. The relevant instrument for this purpose is Legislative Instrument IMMI 09/040. Two academic years is at least a total of 92 weeks, being the duration of a course or courses registered under s 9 of the Education Services for Overseas Students Act 2000.
8.‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03 and 1.15F, and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000 (IMMI 09/040)[.]
In his visa application, the applicant’s nominated skilled occupation was engineering technologist. The Tribunal recorded that the applicant submitted the following documents with his visa application:
·Bachelor of Technology Degree (Electronics and Communication Engineering) from Jawaharlal Nehru Technological University from India;
·Certificate III in Printing and Graphic Arts completed from 7 July 2008 to 8 May 2009 at Cambridge International;
·Certificate III in Business (Frontline Management) completed from 18 May 2009 to 12 July 2009 at Cambridge International;
·Certificate IV in Business completed from 3 May 2010 to
1 November 2010 at Acumen Education;·Diploma of Business (Frontline Management) completed from 18 May 2009 to 26 February 2010 at Cambridge International;
·Statement of Results issued by Acumen Education as evidence that the applicant completed requirements for the award of a Diploma of Business on 10 August 2011; and
·Skills Assessment letter issued by the Engineers Australia dated 4 June 2012 as evidence that the applicant’s skills have been assessed as suitable for an occupation of a Telecommunication Engineer.
The delegate considered that the applicant had completed his Certificate IV in Business more than six months before the lodgement of the visa application. As such, the delegate considered that the applicant was unable to meet the requirements of cl.485.213(a) of
Sch. 2 of the Regulations.
The delegate also considered that the applicant had completed his Diploma of Business on 10 August 2011. As that completion date was eight days after the visa application was lodged, the delegate considered that it could not be relied upon to meet the requirements of cl.485.213(a) of Sch. 2 of the Regulations. However, evidence was placed before the Tribunal indicating that the applicant had in fact completed the final subject in his Diploma of Business on 27 July 2011.
The applicant appeared before the Tribunal on 20 September 2013 with his registered migration agent. The Tribunal noted at the hearing that the applicant had nominated engineering technologist as his skilled occupation but had provided a skills assessment for the occupation of telecommunications engineer. The applicant sought additional time to be able to provide a relevant skills assessment. The Tribunal granted that time and a skills assessment relating to the occupation of engineering technologist was subsequently provided.
At the hearing before the Tribunal, the Tribunal told the applicant that there was a further issue, namely, whether the applicant’s Australian study was closely related to his nominated occupation. The applicant was given additional time after the hearing to provide written submissions on that issue.
During the Tribunal hearing, the applicant said that his business qualifications would enable him to undertake management roles in the telecommunications field. In a post hearing written submission, the applicant said that he wanted to work as a project engineering manager and that prospective employers wanted people with technical knowledge and business/management skills.
The Tribunal’s reasons
The Tribunal considered that the applicant’s Australian study was not closely related to his nominated skilled occupation. Having made that finding, the Tribunal found it unnecessary to consider any of the other criteria for the visa.
In forming the view that the applicant’s Australian study was not closely related to his nominated skilled occupation, the Tribunal considered the description of that occupation in the ANZSCO code. The Tribunal said:
45.The tasks performed by an Engineering Technologist are set out in ANSCO 233914 as follows: ‘Analyses and modifies new and existing engineering technologies and applies them in the testing and implementation of engineering projects’.
46.In his oral evidence, the applicant stated that the Frontline Management and the Diploma in Business will enable him to undertake management roles in the telecommunication field. In his written submissions of 25 September 2013, the applicant submits that ‘business management courses’ are closely related to his nominated occupation of an Engineering Technologist because the labour market is looking for professionals who have the combined technical knowledge and business/management skills; that most engineering work is project driven and is it (sic) essential for engineering professionals to equip themselves with business management skills; that he would like to be a person with business skills who does not have to consult a technical specialist in order to win and negotiate projects; that during his bachelor degree course he studied Management Science and Managerial Economics; that he wants to work as a Project Engineering Manager, Program Director or Chief Engineering Officer so he can apply his engineering skills in his managerial role.
47.Firstly, the Tribunal notes that a general business management course is not directed specifically at any industry, including the engineering industry, and prepares its graduates to work in any field. There is nothing in any of the courses completed by the applicant in Australia to suggest a link between these courses and the engineering industry and, more significantly, the occupation of an Engineering Technologist.
48.Secondly, the applicant claims that the knowledge he gained in the business management courses would help him in his employment and would enable him to work as a Project Engineering Manager, Program Director or Chief Engineering Officer. The Tribunal acknowledges that many different skills may be helpful to working in the occupation of an Engineering Technologist. However, the statutory requirement is not about being helpful or useful. The question is whether the qualifications are closely related. That requires a much stronger link than being merely useful or helpful. There must be a close relationship between the study and the nominated occupation, not merely a benefit of one to the other.
49.The Tribunal notes that Judicial authority supports the view that there is a distinction between a qualification that is ‘closely related’ to a skilled occupation and one that is less closely related, namely, merely ‘complementary’. (footnote omitted)
50.Further, the assessment is with respect to the applicant’s nominated occupation, not what the applicant may wish to do in the future. While the applicant may wish to work as a Project Engineering Manager, Program Director or Chief Engineering Officer in the future, the occupation which he had nominated is that of an Engineering Technologist. In making the assessment it is necessary to focus on the occupation that has been nominated rather than on an applicant’s claimed or proposed occupation or career path.
51.As stated above, according to ANZSCO, an Engineering Technologist analyses and modifies new and existing engineering technologies and applies them in the testing and implementation of engineering projects. In the Tribunal’s view, there is no close relationship between the occupation of an Engineering Technologist, as portrayed by the above tasks, and any of the qualifications obtained by the applicant in Australia.
In view of those findings, the Tribunal affirmed the delegate’s decision.
Ground 1
The first ground of review in the application filed on 21 November 2013 and amended on 25 July 2014 is:
The Tribunal committed a jurisdictional error of law by failing to bring an impartial and unprejudiced mind to the resolution of the questions before it as evidenced by its expression of a preconceived view regarding the merits of the Applicant’s case.
The applicant’s advocate clarified at the commencement of the hearing before this court that this ground concerned an allegation of apprehended bias. This particular aspect of the requirements of procedural fairness was considered by the Full Court of the Federal Court in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80. In that case, Allsop CJ said:
2.The question whether or not an administrative tribunal has conducted itself in a way that displays apprehended bias is assessed by reference to the hypothetical construct of the informed fair-minded observer. There was no debate as to the proper formulation of the relevant test. Nor could there be, governed, as it is, by High Court authority. The words “fair-minded”, however, should be recognized for the central part they play in the assessment. Apprehended bias, if found, is an aspect of a lack of procedural fairness. The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process (the process being part of the exercise of power, integral to the legitimacy of the outcome): VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209]; and NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561 at 583 [84].
3.Of course, context is vital to the assessment, albeit hypothetically constructed. It is, in the end, an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power.
4.A person in the appellant’s position, if the possibility of the truthfulness of his need for protection is to be assumed, as the undergoing of the very process of review dictates, is entitled to an apparently fair and dispassionate hearing, free of the appearance of premature assertions of disbelief, laced with moralising speeches. That does not mean that robust, vigorous questioning is not permitted, indeed perhaps called for. If a body of evidence or history during the process of the hearing lacks credibility or coherence, the Tribunal may feel bound, in fairness, to point that out. That is, however, not what happened here. The Minister argued that the assertions of disbelief and other statements by the Tribunal should be understood as expressions of difficulty with the evidence and requests for further assistance. No fair-minded observer, recognising the position of the applicant for a visa, would have so understood them.
5.The fair treatment, and apparent fair treatment, of an applicant called to give evidence and present arguments in a hearing under the Migration Act 1958 (Cth), s 425(1) involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. That recognition is an inhering element of fairness. Fairness, and its appearance, is (subject to clear statutory qualification, in the light of Parliament’s “assumed respect for justice”: Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 at 56-57 [26], and to any impinging Constitutional consideration) an inhering requirement of the exercise of state power.
Also in SZRUI, Flick J said:
27.Although there is no requirement imposed upon administrative decision-makers to continuously disclose a process of reasoning (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [48], 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), it should be recognised that the proper expression of tentative views by an administrative decision-maker may actually enhance the fairness of the administrative process by alerting a claimant to perceived deficiencies in the claim being made and affording an opportunity to the claimant to address those perceived deficiencies. The difficulty in any given case is to identify those cases in which a decision-maker is expressing tentative views and thereby enhancing the ability of a claimant to be properly heard as opposed to those cases where the expression of views by a decision-maker either gives rise to a reasonable apprehension that they are really not prepared to change those views no matter what may be further said by a claimant or in fact evidences a closed mind. The reasonable apprehension that a decision-maker has reached a fixed conclusion before the completion of a hearing is enough to vitiate the administrative process.
28.One of the ways in which the present Appellant sought to challenge the decision of the Tribunal was to allege that the exchanges during the hearing evidenced a predetermination by the Tribunal member as to the fate of his claim.
29.Where such a challenge is made, more must be shown than a mere predisposition to a particular view; it is necessary to show a decision-maker’s mind being not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507 at 531-532 Gleeson CJ and Gummow J there observed:
[71] ... Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
[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. ...
…
33.Common to all bases upon which an argument as to a reasonable apprehension of bias is advanced for resolution is the concern of the reviewing Court to ensure that a balance is struck between justice being seen to be done and the need to ensure that such arguments are not too readily accepted. A balance must be struck between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration. An initial assessment that claims lack substance may prove to be ultimately well-founded; equally, however, there remain cases where an initial assessment may prove to be ill-founded and misconceived.
34.Where that balance is to be struck in any given case necessarily depends upon a myriad of circumstances, including the legislative context in which a decision is made and the ability of a claimant to adduce evidence or to substantiate claims being made. In the present legislative context, those circumstances include the inquisitorial function entrusted to the Tribunal and the recurring need to resolve in many cases questions as to the credibility of the claimant.
35.In the circumstances of the present case it is concluded that the Appellant has established that a reasonable bystander might conclude that the Tribunal member might not be open to persuasion. A reasonable apprehension of bias, it is thus concluded, has been made out. This conclusion has been reached because:
·the exchanges that occurred went well beyond a mere expression of reservation as to whether what the Tribunal member was being told should be accepted – the exchanges exposed the Tribunal member expressing a concluded view before the entirety of the hearing had even concluded that she “[did not] believe any of that” and that she “[did not] believe what you’ve told me about this Muslim girl” and that she “[did not] believe ... that you’ve been pursued by the YCL”;
·the fact that those exchanges expressing a concluded view as to what the Tribunal member was saying should not be “believed” were not confined to an isolated instance but were repeated throughout the hearing;
·the manner in which some of the questioning proceeded conveyed or was capable of conveying an overall assessment as to the evidence being given by the Appellant – the Appellant being told on at least two occasions not to be “silly”; and
·the Appellant when asking “[w]hat else can I say” was told by the Tribunal member that she did not “know what you can say because I don’t believe ... what you’ve told me...”.
This conclusion is also reinforced by:
·the expression by the Tribunal member of her own value judgment that the Appellant’s claim to have made the Muslim girl pregnant would have “absolutely disgraced” the family of the girl and would have been “a great disgrace” as the Appellant would have “dishonoured this girl...”. Such expressions went beyond a means of eliciting a response from the Appellant and trespassed into the area of a concluded view that a failure on the part of the Appellant “to do something” could only be explained by the claim not being genuine.
A reasonable opportunity to be heard, it is concluded, requires that a decision-maker provide a claimant with an opportunity to be heard and an opportunity for the claimant to advance the entirety of his factual material and submissions before a conclusion is reached.
The more general test for apprehended bias on the part of an administrative tribunal was set out by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; (2001) 179 ALR 425; (2001) 9 Leg Rep 20; [2001] HCA 28 at [27] to [34] as follows:
[27]The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the tribunal, proceedings are held in private. (footnote omitted)
[28]Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
[29]Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.
[30]Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented — often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. (emphasis added)
[31]Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.
A transcript of the proceeding before the Tribunal is exhibited to the affidavit sworn by Kimani Adil Boden on 24 July 2014. The first respondent did not dispute the accuracy of that transcript.
The applicant relied on the following statement made by the Tribunal commencing at line 46 on page 8 of the transcript:
That is your big problem, okay? That is the reason for me to affirm the decision because whatever you’ve studied here, that’s the first reason to affirm this decision. Whatever you’ve studied here in Australia is absolutely irrelevant to your nominated occupation. The second problem that you have, and I don’t know whether you discussed that with your migration agent, the nomination of your occupation on 485 visa, had you nominated one occupation and you’ve got the skill assessment for another occupation, it’s not permissible to change that. You cannot do that. Do you understand that?
The applicant submitted that the passage quoted in the previous paragraph demonstrated that the Tribunal had made up its mind before hearing the applicant’s evidence.
The first respondent submitted, correctly, that the transcript needed to be read as a whole. The first respondent submitted that, taking into account various other passages from the transcript, it is clear that the Tribunal was simply seeking to alert the applicant to the issues on which the decision would turn. The first respondent relied particularly on the following passages of the transcript:
a)beginning at line 46 on page 7:
Okay. But more importantly, we’ll talk about completion dates, whether you completed the education within six months or not, later on, but the obvious problem that I have is how is any of these courses that you’ve completed in Australia, Diploma of Business, Certificate III in Business, Frontline Management - how is that relevant for your nominated occupation of an engineering technologist? Remember when I mentioned to you this Regulation and I read out that the regulation requires that this occupation - so each degree, diploma or trade qualification used to satisfy this Australian Study Requirement has to be closely related to your nominated occupation. (emphasis added)
Now I don’t understand how is any of these closely related to the occupation of engineering technologist. Can you explain it to me? (emphasis added)
b)beginning at line 1 on page 10:
Right. As I said, in my view, or my preliminary view is that firstly you’ve got a problem that you’ve nominated one occupation and got an assessment for another. That of itself will render this application unsuccessful. Secondly, your education in Australia has no relevance to your skill assessment. Okay? What you’ve done here, all those courses that you’ve completed in Australia are irrelevant and not closely related as the Regulation requires with your Bachelor Degree or occupation of telecommunication engineer, okay? So on that basis that’s the second basis of affirming the decision of the review. Do you understand that?
…
And the third basis for affirming the decision of the review is the fact that you just gave in your evidence, that you completed this Diploma at Acumen on 10 of August 2011. Now if you completed that on 10 August 2011 and you lodged your application on 2 August 2011, that would mean that you haven’t satisfied that requirement that you had to lodge within six months after completing your course. Do you understand the reason why?
c)beginning at line 26 on page 13:
… even if I accept that you completed on 27 July. Okay? Even if I accept it and I’m not saying I will, you’re still stuck on the second part of the requirement meaning that all this education that you completed in Australia has to be relevant and closely related. Not just relevant, closely related to your nominated occupation. I don’t think it is.
…
How is that closely related? (emphasis added)
d)beginning at line 33 on page 16:
… as I said, I have expressed my preliminary view of the – I only said that this – any of the education that was complete in Australia was closely related – closely related to nominated occupation. (emphasis added)
e)beginning at line 3 on page 21:
But what is important for me is that you understand as the applicant, what are the problems in your application. And I hope that I was able to explain to you what are the main problems with your application. (emphasis added)
f)beginning at line 41 on page 22:
And you need to convince me – … you need to convince me how is this, whatever you’ve done here, relevant, closely related to your nominated occupation. (emphasis added)
I accept the first respondent’s submissions on this issue. Taken as a whole, it is clear that the Tribunal was simply trying to explain to the applicant what the perceived deficiencies in his application were.
For reasons of procedural fairness, it was imperative that the Tribunal alerted the applicant to the issue of whether the applicant’s studies in Australia were closely related to his nominated occupation. In some places in the transcript, the Tribunal was a little too definitive about its views. However, taken as a whole, the transcript shows that the Tribunal was trying to explain to the applicant the perceived deficiencies in his case so that the applicant could address them.
The applicant was represented by a migration agent who could be assumed to understand the process.
It must be remembered that a tribunal, such as the Migration Review Tribunal, is in a somewhat different position to a court. The Tribunal does not adjudicate between two competing parties who are each responsible for putting forward their own points of view. The Tribunal does not have the benefit of a contradictor, but must highlight the issues itself, if they differ from the issues on which the delegate decided the case. The Tribunal is able to decide a case in the applicant’s favour on the papers and only conducts a hearing if it forms the view that, on the papers, there is insufficient material for the applicant to succeed. In other words, the Tribunal commences a hearing dissatisfied with the applicant’s case.
Seen from that perspective, it is clear that the Tribunal was doing no more than trying to explain the relevant issues to the applicant for the purpose of eliciting his response. I consider that is how a fair-minded, fully informed, lay observer would have understood the Tribunal’s words.
The applicant also argued that the Tribunal created a reasonable apprehension of bias by making verbal assurances that it was not biased. The applicant relied particularly on the following passages from the transcript:
a)beginning at line 4 on page 17:
As I said, I wanted your client to understand what are the problems. It’s not something that I even have a personal view on, that’s fine, I’m just saying that this is the regulation and that’s the regulatory requirement and I see three distinct problems with this application as I’ve explained … .
b)beginning at line 30 on page 22:
Look, as I said, it is nothing personal about the job that I’m doing. I’m just trying to apply the law and at the moment your client has several issues with the regulatory requirement. Whether you can address those issues – I’ll give you a week.
The second passage cited in the previous paragraph followed a statement to the Tribunal from the applicant’s migration agent that the Tribunal had been very kind already. It does not appear to me that either of the passages cited in the previous paragraph raise any issues in relation to the question of apprehended bias. There was no need for the Tribunal to mention anything about his personal views or lack thereof. However, nothing turned on it. The Tribunal was simply emphasising, correctly, that it was there to apply the law, not to make a decision based on personal preferences.
The applicant also argued that the Tribunal created a reasonable apprehension of bias, and otherwise denied the applicant procedural fairness, by not giving the applicant reasonable notice of the issue concerning his Australian studies being closely related with his nominated occupation. The applicant argued that this point had not been an issue for the delegate and the applicant was taken by surprise when the Tribunal raised it at the hearing.
The applicant might have been taken by surprise when this issue was raised at the hearing. However, the Tribunal complied with s.359AA of the Migration Act 1958. It explained the issue to the applicant, tried to ensure that he understood it and gave him time to put in a written submission on the issue.
The applicant did provide a written submission within the seven days permitted. The applicant did not suggest to this court that if he had been given additional time he would have been able to provide a substantially better response. Indeed, the applicant conceded in this court that the seven days to provide written submissions on this issue was sufficient. The applicant did not, by himself or his migration agent, seek additional time. In these circumstances, it does not appear to me that the applicant was denied procedural fairness in relation to this issue or that the Tribunal’s handling of it created a reasonable apprehension of bias.
The applicant argued that the Tribunal created a reasonable apprehension of bias by giving the applicant only one week to obtain a new skills assessment and then saying that was unlikely to happen. The Tribunal said, at lines 7 and 8 of page 23 of the transcript:
… so if you do have a skill assessment in one week, which is unlikely to happen.
In fact, the new skills assessment was lodged with the Tribunal within one week. When the issue of further time for the skills assessment was raised with the Tribunal, at line 41 of page 21 of the transcript, the agent only asked for “a few days”. The Tribunal said at line 9 of page 22 of the transcript that it would give one week. The migration agent replied, at line 11 of page 22 of the transcript:
Excellent, that’s enough – more than enough.
It is unclear what the Tribunal meant by the words, “which is unlikely to happen”. In circumstances where the ground of apprehended bias is a serious allegation that must be clearly established, it does not seem to me that those few words are sufficient to establish a reasonable apprehension of bias.
The applicant also argued that the Tribunal had created a reasonable apprehension of bias by saying at the conclusion of the hearing that the hearing was complete and the Tribunal and the applicant would not see each other again. The applicant argued that the Tribunal should have convened another hearing after receipt of the applicant’s skills assessment and submissions on whether his Australian studies were closely related to his nominated occupation.
It is customary for the Tribunal to receive post hearing submissions or evidence without giving the applicant a further oral hearing. This practice does not appear to me to create a reasonable apprehension of bias in general or in this particular case.
Taking the various matters raised by the applicant cumulatively, I do not consider that a fair-minded, fully informed, lay observer would have reasonably formed the view that the Tribunal might have prejudged the matter in this case. This ground is not made out.
Ground 2
The second ground of review in the application filed on 21 November 2013 and amended on 25 July 2014 is:
The Tribunal committed a jurisdictional error of law by failing to act in accordance with the requirements [of] procedural fairness and natural justice.
The applicant said before this court that the two issues that arose under this ground were the seven day extension and the fact that the Tribunal decided the case on a ground different to the basis of the delegate’s decision. For the reasons discussed above, I do not accept that either of these issues gave rise to a denial of procedural fairness.
Grounds 3 and 4
Grounds 3 and 4 of the application filed on 21 November 2013 and amended on 25 July 2014 were withdrawn at the hearing held in this court on 28 July 2014.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed. I will hear the parties on the question of costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 23 September 2014
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