Singh v Minister for Immigration and Border Protection

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 This proceeding is an appeal from a decision by his Honour Judge Wilson in the Federal Circuit Court of Australia delivered 16 February 2017. The appellants were unrepresented in this Court but were represented before his Honour by counsel instructed by solicitors. At the hearing, the first appellant sought an adjournment on the basis that he needed time to obtain legal advice, but that application was not supported by any material. There was no solicitor identified as having been retained and there was no legal practitioner seeking an adjournment on his behalf. There was no correspondence from any legal practitioner to corroborate or support the request for an adjournment that might make it likely that granting an adjournment might result in obtaining effective assistance. In the circumstances, the application for an adjournment was rejected. 2 The notice of appeal contained two broadly stated grounds, namely,: 1. The Federal Circuit Court erred by failing to find that the Tribunal failed to comply with s. 359AA(1)(b) of the Migration Act 1958 (Cth). 2. The Federal Circuit Court erred by failing to find that the decision of the Tribunal is affected by a reasonable apprehension of bias. No further particulars of the grounds were provided in the notice or by submissions before the hearing of the appeal or on the appeal. The notice of appeal was signed by the solicitor who had acted for the appellants in the proceeding before the Federal Circuit Court but gave notice on 20 June 2017 of ceasing to act as lawyer for the appellants in the proceeding. 3 The two grounds of appeal correspond to the two issues which his Honour identified in his reasons for judgment, namely,: a) whether the Migration Review Tribunal, now the Administrative Appeals Tribunal ("the Tribunal") failed to comply with s.359AA(1)(b) of the Migration Act 1958 (Cth) ("the Act"); and b) whether the Tribunal exhibited apprehended bias when conducting the hearing of the review of the delegate's decision on 23 October 2014. His Honour considered each of the issues in detail but found against the appellants on both. Nothing in the appeal warrants a departure from his Honour's conclusions. 4 The first ground of appeal, and the first issue considered by his Honour, was whether the Tribunal had failed to comply with s 359AA(1)(b) of the Act. His Honour concluded that the Tribunal had not breached s 359AA(1)(b) and that its provisions were not mandatory. At [38] his Honour said: 38. In my opinion, there is nothing in the proposition advanced by the first applicant on this issue. In my view, the relevant information had already been given to the first applicant by the terms of the delegate's decision with the consequence that according to s.359A(1)(b) of the Act the Tribunal, strictly speaking, was not required to put the same material to the first applicant when questioning him. At [42] to [45] his Honour also explained: 42. As a matter of statutory interpretation, the requirements of s.359A of the Act are obligatory whereas the elements of s.359AA of the Act are discretionary. That much was pointed out by the Full Court of the Federal Court of Australia in SZMCD, albeit in the context of ss.424A and 424AA of the Act. In view of my finding that s.359A(4)(b) applied, the mandatory obligations under ss.359A(1) and (2) were relaxed by reason of the fact that key information had already been given by the first applicant to the Tribunal. 43. So far as the application of s.359AA of the Act was concerned, I do not agree with paragraph seven of the applicants' written submissions where counsel wrote that the requirements of s.359AA of the Act are mandatory procedural requirements. In fact, in paragraphs 73 to 75, 81, 86, 87 and others of its reasons for judgment, in SZMCD the Full Court of the Federal Court of Australia said the opposite to the proposition urged in the applicants' written submissions on this point. Similarly, in the reasons for judgment of McHugh J in SAAP, his Honour stated the point differently to the way the applicants' counsel's written submissions read in paragraph seven of those submissions. 44. Once it is recognised that s.359AA of the Act imports discretionary matters that are complementary to s.359A of the Act (as was said in SZMCD at [80]) it is at once apparent that the Tribunal need not necessarily apply the component elements of s.359AA of the Act. Here, the necessity to apply the elements of ss.359A(1) and (2) was relieved by reason of s.359A(4)(b) and so the Tribunal was relieved of the need to address s.359AA of the Act. 45. So far as the applicants' argument about a sequence of steps in s.359AA of the Act was concerned, in view of my conclusion that s.359AA of the Act did not apply to the facts of this case, there is no need to consider the issue. However, lest it be important, I reject the contention for reasons given by Kirby J in SAAP, especially between paragraphs 154 to 158 of his Honour's reasons for judgment. I agree with his Honour's conclusions and reasoning. The mandatory preconditions for the exercise of the Tribunal's powers were found in s 359A not s 359AA: see SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415, [73]-[78]. The latter provision was introduced following the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 and provided a more flexible approach in discharging the obligation imposed by s 359A. The first appellant had given a copy of the delegate's decision to the Tribunal when he applied for review. That decision included the information contained in PRISMS records and, accordingly, the obligation in s 359A had not been enlivened: see Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241, [26]; Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240, [74]. 5 The second ground of appeal, and the second issue considered by his Honour required a consideration of whether the Tribunal's decision had been affected by a reasonable apprehension of bias. The grounds of appeal in this Court did not identify any error in his Honour's consideration or conclusion in respect to that issue. Before his Honour, the appellants' based their challenge on a series of exchanges between the Tribunal member and the first appellant. It had been submitted before his Honour that a reasonable apprehension of bias was established by a consideration of the exchanges between the Tribunal member and the appellant including specific reference to certain exchanges identified from the transcript in written submissions filed before his Honour, namely: 16 The aspects of the hearing on which the applicant relies include the following parts of the hearing as recorded in the transcript: 16.1. The impliedly disparaging remark on page 4: "Is that really why you are here today, because you think you were sick for a short time and your visa was cancelled?" 16.2. The unnecessarily combative remark on page 6: "Really? What evidence have you got?" 16.3. The following exchanges on page 7-8: T: That's not the question; if I think you're misleading me or trying to avoid answering the question, as I said earlier, that can impact on my assessment of your credibility. A: Just one week. T: Why didn't you tell me that before? A: Because I didn't understand the question before. T: Or is it that you were trying to avoid answering the question? Is that - A: No, no - Thereafter, the Tribunal states that it thinks he is trying to mislead the Tribunal and that his credibility is in issue. However, the applicant had explained that the reason he didn't give a clear answer initially was that he didn't understand the question, and did in fact give an answer to the question. The Tribunal intimidated the applicant by saying: "if you continue to not answer the questions when you're asked in a more wholesome manner, fulsome manner, that may impact on my assessment." However, at that stage of the hearing, the issue being discussed was whether the applicant had breached condition 8202 and credibility was irrelevant to that issue. 16.4. The cynical remarks on page 8 and 9 inquiring what the applicant was doing in Australia. 16.5. The confrontational exchange regarding the applicant's explanation for why he was not studying and the Tribunal's over-zealous reaction to that explanation on page 9. 16.6. The repeated challenge to the applicant to produce "evidence" of his medical condition, despite his having in fact produced such evidence (even if it was not persuasive for the Tribunal) (see CB 135-167). 16. 7. The cynical remarks about the applicant seeking to prolong his stay in Australia on page 11, noting that an applicant is perfectly entitled to "prolong" their stay in Australia for however so long they wish, providing they do so lawfully. 16.8. The intimidating and irrelevant remarks about the applicant's possible unlawful non-citizen status and the threats of consequences therefor including detention (noting that the applicant has a wife and young child) on pages 11, 12 and 14. 16.9. The irrelevant criticism of the applicant's migration choices on page 14. His Honour considered these submissions, read the transcript of the hearing, and listened to the audio tape, but concluded that there was no reasonable apprehension of bias. In that regard his Honour said at [60]-[70]: 60. As mentioned above, I have not only read the transcript of the hearing before the Tribunal but also listened to the recording of that hearing as well. For the most part, the Tribunal member was polite, frequently thanking the first applicant. For the most part the questions put by the Tribunal member were open questions, prefaced with, when, why, what or where. In response to those questions the first applicant answered in an unrestrained way. In other instances, the Tribunal member picked up on an answer previously given and explored it. One illustration took place early in the hearing when the first applicant stated he changed from hairdressing to hospitality and later to aged care. After the first applicant responded, the Tribunal member put to the first applicant that he had wasted one and a half years while undertaking hairdressing. To my mind, to that point there was no error in the style of questioning, the content of it or the degree of force applied in asking those questions. 61. Counsel for the applicants complained that the Tribunal member interrupted the applicant or asked questions in a manner that injected a disbelieving attitude. One illustration, set out on the sixth page of the unnumbered pages of the transcript, involved the Tribunal member asking the first applicant to confirm he commenced a course of study on a particular date. The first applicant twice answered in the affirmative. The Tribunal member asked what evidence the first applicant had for the answer he gave. The first applicant then went on to speak of a medical certificate. The Tribunal member told the first applicant that the Tribunal member was not asking about a medical certificate, that the applicant had known for most of the year that he was not enrolled and the Tribunal member pressed for evidence that the first applicant had started a course on a particular date. Pausing there, in my view that line of questioning and the way it was undertaken was perfectly proper, dare I say important in the determination of the issues in this case. 62. The Tribunal member then informed the first applicant that a conclusion by the Tribunal member that the first applicant was misleading the Tribunal member or that he was attempting to avoid answering the question may have a bearing on the assessment of the first applicant's credibility. As a matter of fact and law, that was correct. Indeed, in giving that statement the Tribunal member gave the first applicant something the law did not require the Tribunal member to give - a running commentary. If anything, that was to the first applicant's advantage. 63. Then the Tribunal member addressed the point of the first applicant's commencement of a course in November 2012. It will be recalled that the first applicant's earlier course came to an end on 31 October 2012. The Tribunal member asked what evidence the first applicant had to show he started a course in November 2012. The first applicant said he had none. That was a very significant admission by the first applicant. He was not tricked into giving it nor was he cajoled, browbeaten or harassed into that statement. The Tribunal member behaved perfectly properly in asking the question that led to that answer. The answer given by the applicant spelt his own doom on the merits review. 64. But the Tribunal member insured the first applicant was not confused so he asked the first applicant again. The Tribunal member asked the following - Member - Well, you say you started the course for one week; so you started on 12th November, 2012? First applicant - Yes. Member - Why did you attend the course for just one week? First applicant - After that I got sick. 65. There was nothing untoward in that exchange. 66. The first applicant asserted that his wife's pregnancy prevented him from going to classes. The Tribunal member asked how his wife's pregnancy prevented him from being enrolled. The first applicant said he was looking after his pregnant wife. The Tribunal member asked how the first applicant could look after his wife if his back pain was so bad that he was unable to go to classes. The first applicant gave a non-responsive answer. The Tribunal member pursued the point as it was obviously important. In pursuing the first applicant's answers, the Tribunal member was courteous, permitting the question to be answered before asking a further question. Where the first applicant gave an answer that was non-responsive, the Tribunal member brought the first applicant back to the question with the accepted, time-honoured method of focusing a witness by the use of the phrase "just listen". 67. In my view no error was committed in that. Nor might a hypothetical fair-minded lay observer, properly informed as to the nature of the proceeding or process reasonably apprehend that the decision-maker might not have brought an impartial mind to the making of the decision. 68. The first applicant invited me to conclude that the questioning of the first applicant was not appropriate because, among other things, it was intimidatory or cynical. I reject that submission. To the contrary, the questioning was on point and relevant. The first applicant in many instances was non-responsive. The Tribunal member was entitled to seek the answers the Tribunal member sought. 69. As to tone, intonation, unpleasantness and suchlike, I detected nothing inappropriate. I say that even recognising that the first applicant was not represented at the hearing before the Tribunal. Robust questioning is permissible. The questioning of the first applicant by the Tribunal member was far from robust questioning. The questions were proper and appropriate. 70. Ground 2 failed. There is no reason to depart from his Honour's conclusions or reasons. 6 Accordingly, the appeal will be dismissed with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.