Huang v Minister for Home Affairs

The Tribunal's decision 18 The Tribunal declined to adjourn or defer the appellant's review application until Nutritional Choice's judicial review application or new nomination application had been decided. It also affirmed the decision to refuse the appellant's visa application. In its Statement of Decision and Reasons the Tribunal gave detailed reasons for both refusing the appellant's adjournment or deferral application and for affirming the decision under review. 19 The Tribunal had regard to the lengthy history of the appellant's visa and review applications. It is unnecessary to rehearse that history. It suffices to note that the appellant had been on notice since 20 December 2014, when the Minister first refused the appellant's visa application, that she did not meet the criterion in cl 457.223(4)(a) of the Regulations. At no point since that time has she been in a position to meet that criterion. 20 The Tribunal reasoned that the appellant's request to adjourn her review application until the completion of Nutritional Choice's judicial review application in the Circuit Court was "in essence an application to adjourn the matter indefinitely as there is a substantial degree of uncertainty as to when the judicial review proceedings would be finalised": Reasons at [20]. The Tribunal did not consider that an adjournment in those circumstances was reasonable, particularly in circumstances where it had already delayed its consideration of the appellant's review application while Nutritional Choice awaited the outcome of a "full merits review" by the Tribunal in respect of the decision to refuse its nomination application: Reasons at [21]. The Tribunal also rejected the contention that the appellant would be significantly prejudiced if her adjournment application was refused because the refusal of this application would not prevent her from making a subsequent visa application offshore: Reasons at [23]. 21 As for the appellant's request to the defer the determination of the review application until a decision was made in respect of Nutritional Choice's new nomination application, the Tribunal reasoned as follows (Reasons at [29]): After considering, the period of time since the visa application was lodged, that the Department and the Tribunal have already considered a nomination application by the same employer in respect of the same nominee and determined that the nomination application did not meet the necessary requirements, and the delay in the same employer making a new nomination application after the first nomination application was determined by the Tribunal, and that the applicant is seeking a delay for an unspecified period in which the new nomination application will be considered by the Department, and that the new nomination application may not be approved, the Tribunal declines to defer making a decision in this review application until the outcome of the new nomination application is known.

Proceedings in the Circuit Court 22 The appellant's judicial review challenge to the Tribunal's decision relied entirely on the contention that the Tribunal denied her procedural fairness because "a fair minded lay observer might reasonably apprehend that the AAT member might not bring a fair, impartial and independent mind to the determination of the Applicant's request for an adjournment on its merits before proceedings to affirm the delegate's decision": amended application filed in the Circuit Court on 12 June 2018. 23 The essential basis of the claim of apprehended bias was that the Tribunal member who was hearing the appellant's review was the same member who had heard and effectively rejected Nutritional Choice's review application. The appellant was called as a witness in support of that application and, according to the appellant at least, the Tribunal made adverse credibility findings against her. 24 The primary judge rejected the appellant's claims concerning apprehended bias. 25 There does not appear to have been any issue in the Circuit Court concerning the applicable principles in relation to apprehended bias. The primary judge identified the relevant principles concerning apprehended bias and their applicability to administrative decision-makers by reference to the judgment of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425; HCA 28 and, importantly, Livesey v NSW Bar Association (1983) 151 CLR 288. 26 In Ebner, the High Court noted (at [8]) that the application of the apprehended bias principle required two steps: first, the identification of what it was said might have led a judge to decide a case other than its legal and factual merits; and second, an" articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on the merits". In Ex parte H, the High Court indicated (at [27]-[28]) that, in the case of administrative proceedings heard in private, the test for apprehended bias was best formulated by reference to "a hypothetical fair-minded lay person who is properly informed as the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias". 27 In Livesey, which concerned a claim of apprehended bias arising from the fact that the trial judge had previously expressed adverse opinions about the credit of a witness who was to give evidence at the trial, the High Court said (at p 300) that: …. A fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact". 28 As has been noted, the crux of the appellant's case was that a fair-minded lay observer might reasonably apprehend that the Tribunal member might not bring an impartial mind to her review application, or the question whether it should have been adjourned, because the member had made adverse credibility findings against the appellant in the context of Nutritional Choice's review application. The Tribunal rejected that contention for a number of reasons. 29 First, the Tribunal noted that, because it was essentially common ground that the appellant had not met an essential criterion for the grant of the visa in question, there was no live issue in the appellant's review application in respect of which the appellant's credit was potentially relevant: cf. Livesey at 300. The question whether the Tribunal member had previously expressed an opinion concerning the appellant's credit as a witness was accordingly irrelevant. The Tribunal noted that that finding was supported by the decision in Adhikaree v Minister for Immigration and Border Protection [2014] FCA 564, where the rejection of the claim of apprehended bias in relevantly similar circumstances was upheld. 30 Second, the Tribunal questioned whether any adverse credibility findings against the appellant had in fact been made in the review application by Nutritional Choice. The "main criticism" in the Nutritional Choice application was reserved for the other witness, Mr Guo. The only relevant observation concerning the appellant was that she had not disclosed certain relevant facts until those facts were put to her by the Tribunal. It was at best questionable whether that amounted to any sort of adverse credibility finding. 31 Third, the primary judge noted that the appellant did not object to the Tribunal member hearing her application, or adjournment application, on the basis that she had decided Nutritional Choice's application: Reasons at [56]. It should be observed, however, that the primary judge did not appear to consider that this was fatal to the appellant's case, or amounted to a waiver. 32 Fourth, the primary judge rejected any contention that the refusal of the appellant's adjournment application was unreasonable in the legal sense: cf. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The primary judge concluded as follows (at [61]): Critically, the fact that there was no approved nomination for Ms Huang's position at the time of the hearing of her application foreclosed the possibility that her application could be granted. In the circumstance that the decision to refuse the adjournment was not tainted by legal unreasonableness, I consider that the credit findings made in Nutritional Choice's application had no connection, or no connection of significant importance, to any issue arising in either Ms Huang's adjournment application or the application itself. To the contrary, Ms Huang's application for merits review was based on entirely different, uncontroversial and relevantly, agreed facts; namely, that a criterion for the grant of her visa was that there was an approved nomination for her position at the time of decision and there was no such approved nomination at that time. Those matters deny a conclusion that apprehended bias grounded on an impugned credit finding is made out.

Appeal Grounds and Submissions 33 The appellant's notice of appeal initially contained the following three grounds: 1. The federal circuit court judge failed to address the connection between the apprehended bias on the credibility of the applicant and the decision of the adjournment application of the same tribunal member. 2. The federal circuit court judge failed to consider that although the second respondent has discretion in relation to the applicant's adjournment application, there is a possibility that because of the bias towards to the appellant, as the result of the appellant's credibility issue during assessment of the associated nomination review application, the tribunal member may not exercise the discretion properly. 3. The second respondent may have exercised its discretion with apprehended bias when deciding to proceed to affirm the delegate's decision. 34 The appellant did not file any written submissions, despite having been ordered to do so. 35 The hearing of the appeal was ultimately heard on 26 November 2019, after having been adjourned from the original listing date on 13 November 2019 and after the refusal of a further adjournment application: see Huang v Minister for Home Affairs [2019] FCA 2091 36 When the hearing commenced at 10.15am on 26 November 2019, new counsel appeared for the appellant and sought a short adjournment because he had only received the brief the previous evening. Counsel foreshadowed a slight reformulation of the appellant's bias argument based on the decision of the High Court in Isbester v Knox City Council (2015) 255 CLR 135; HCA 20. A short adjournment to 2.15pm was granted. 37 When the hearing resumed at 2.15pm, the appellant's counsel advised that the Minister's representatives had given him information which, if confirmed, would very likely create an insurmountable hurdle for the appellant's appeal ground. That information was that Nutritional Choice's third nomination application had been refused in September 2016. Counsel conceded that if that was in fact the case, any denial of procedural fairness arising from the Tribunal's refusal to adjourn or defer the hearing of the appellant's application until after the determination of a decision in relation to Nutritional Choice's third nomination application would be immaterial and therefore would not amount to a jurisdictional error. In those circumstances, counsel indicated that he would most likely make no submissions. The parties proposed that the Minister be granted leave to file an affidavit in relation to that issue and that the appellant have the opportunity to file written submissions indicating whether she objected to that evidence. The appeal would then proceed to judgment. Orders to that effect were made. 38 The Minister filed affidavit evidence in accordance with those orders. The effect of that evidence was that Nutritional Choice's third nomination application, which was lodged on 27 June 2016, was refused on 27 September 2016 and that there was no record of any application for review having been filed in respect of that refusal decision. 39 The appellant did not file any written submissions or otherwise indicate that the affidavit evidence filed by the Minister was objected to. Consistently with the indication given by the appellant's counsel at the hearing, the appellant did not seek leave to file any further submissions in relation to her appeal grounds, or seek leave to file any amended appeal raising the foreshadowed ground based on the decision in Isbester.

DETERMINATION of the appeal 40 Despite the appellant's apparent concessions concerning materiality, it is desirable, if not necessary, to express some short findings in relation to the appellant's contentions concerning apprehended bias on the part of the Tribunal. It should not be thought that this appeal was decided on the basis of the appellant's concession, or on the basis of the issue of materiality alone. 41 The primary judge was correct to reject the appellant's contentions concerning apprehended bias. In all the circumstances, there was and is no basis for finding that a hypothetical fair-minded lay person who was properly informed as to the nature of the proceedings, the matters in issue and the conduct which was said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the determination of the appellant's adjournment applications. That is so for a number of reasons. 42 First, the primary judge was right to conclude that the Tribunal member had not, as contended by the appellant, made any adverse credibility finding against the appellant in the context of Nutritional Choice's review application. It is true that in its decision concerning Nutritional Choice's review application the Tribunal member noted that it did not find the evidence of the appellant to be "persuasive or compelling". That does not itself amount to a finding that the appellant was not a credible witness. It is also true that the Tribunal member expressed concern that the personal relationship between Mr Guo and the appellant was not disclosed in any of the documentation filed prior to the hearing. The appellant was not, however, a party to Nutritional Choice's review application and accordingly was not responsible for any non-disclosure prior to the hearing. The Tribunal's observation that the non-disclosure prior to the hearing "raised concerns as to the reliability more generally of the evidence regarding the genuineness of the position of the nominated occupation" must be read in that context. It cannot necessarily be taken to be a finding concerning the reliability of the appellant's evidence. 43 Second, the primary judge was right to conclude that, even if the Tribunal had made some sort of adverse credibility finding concerning the appellant in the context of Nutritional Choice's review application, the appellant's credit or credibility as a witness was not an issue that the Tribunal member was likely to have to consider on her review application or her adjournment application. The appellant's evidence was not relevant to any question of fact which was a live and significant issue in the review proceedings. There was essentially no dispute that the appellant did not meet the key visa criterion. There was no suggestion that she could have given any evidence which bore on that issue. There was also no question of fact about which the appellant did or could have given evidence in support of her adjournment applications. She sought to delay her review application while Nutritional Choice pursued its judicial review application and third nomination application. There was no dispute that those applications had been made. The only question was how long they might take to determine. The applicant did not and could not have given any significant evidence in relation to that question. 44 Third, while the primary judge did not dismiss the allegation of apprehended bias on the basis of waiver, his Honour could have done so. The appellant did not at any point ask the Tribunal member to recuse herself on the basis that she had made an adverse credibility finding against her in the context of Nutritional Choice's review application, or for any other reason. By "standing by" and not objecting to the Tribunal member hearing her matter, the appellant had "waived her right to subsequently object": Vakauta v Kelly (1989) 167 CLR 568 at 572. 45 In circumstances where the appellant's claims of apprehended bias were correctly dismissed by the primary judge, it is strictly unnecessary to consider the issue of materiality. It should nevertheless be briefly addressed. As already noted, the appellant, through her counsel, appeared to concede that her claim of apprehended bias, even if made out, could not give rise to a jurisdictional error because it would not have been material. The basis of that apparent concession appeared to be that, even if the appellant had been granted an adjournment until Nutritional Choice's nomination application had been determined, her review application would in any event have failed because, as events transpired, Nutritional Choice's nomination application was refused and there was no review application. It appeared to be accepted, on that basis, that the breach of procedural fairness could not have resulted in a different decision. 46 It is not, however, entirely clear whether the concession concerning materiality, if made, was properly made. 47 In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; HCA 3 at [45], the majority held that a breach of procedural fairness which arose from the non-disclosure of a certificate did not give rise to jurisdictional error unless the breach was material to the decision. A breach was material to a decision only if compliance could realistically have resulted in a different decision. 48 The nature of the breach of procedural fairness considered in SZMTA was, however, somewhat different from the breach of procedural fairness which was said to arise as a result of apprehended bias in this case. Allegations of actual or apprehended bias "strike at the validity and acceptability of the trial and its outcome": Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; HCA 55 at 117. It is also not entirely apt to analyse whether a breach of procedural fairness arising from an apprehension of bias would or would not have realistically led to a different decision. If there was a reasonable apprehension of bias, the decision should not have been made at all in those circumstances. Here, if, contrary to the conclusion that has been arrived at, there was a reasonable apprehension of bias, the appropriate course would have been for the member to have recused herself. If she failed to do so, the appropriate course would have been to remit the matter to the Tribunal for reconsideration by a different member. 49 While one can perhaps understand why the appellant, through her counsel, effectively conceded that the alleged denial of procedural fairness in her case did not give rise to a jurisdictional error, the more appropriate concession would have been that it would, in light of the fresh evidence, have been appropriate to refuse to grant the relief sought by the appellant because it would have been futile to remit the matter to the Tribunal. It would have been futile because, in light of the refusal of Nutritional Choice's nomination application, the appellant would still have been in the position whereby she was unable to meet one of the essential criteria for the grant of the visa. Her review application would, in those circumstances, have inevitably been unsuccessful and the original refusal decision would have been affirmed. 50 Two final points should be made. 51 First, while the appellant did not ultimately pursue any argument based on Isbester, a cursory review of that decision in any event would reveal that any such argument would have been unsuccessful. Isbester was a case which concerned bias arising from a decision-maker's personal interest in the decision arising from the decision-maker's involvement in an earlier prosecution. There is, however, no basis to conclude that the Tribunal member in this case had any personal interest in the appellant's review application by reason of her earlier involvement in Nutritional Choice's review application. Unlike in Isbester, the Tribunal member was not the prosecutor, accuser or moving party of the earlier application by Nutritional Choice. Nor did the Tribunal's decision to refuse the appellant's adjournment application turn at all on any assessment of the prospects of the new nomination application by Nutritional Choice. The fact that the Tribunal had affirmed the refusal of the earlier nomination application was accordingly immaterial. 52 Second, while the appellant did not raise any issue concerning legal unreasonableness in her appeal grounds, it should nonetheless be noted that the primary judge was right to reject the appellant's contention that the refusal of her adjournment application was legally unreasonable. The Tribunal gave clear, logical and cogent reasons for refusing the appellant's successive adjournment applications. It could also not be said that the refusal of the adjournment application in all the circumstances was in any material sense unfair or unjust. Indeed, given the significant delays that had already been encountered in relation to the appellant's visa application and the review thereof, it is hardly surprising that the Tribunal refused to delay the process further for some indeterminate time while Nutritional Choice pursued its various applications.

Conclusion and disposition 53 The appellant failed to make out any of her appeal grounds and failed to demonstrate any error on the part of the primary judge. The primary judge was correct to dismiss the appellant's judicial review application for the reasons given. There was no proper basis upon which to find any apprehended bias on the part of the Tribunal. 54 The appeal must be dismissed with costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.