FEDERAL COURT OF AUSTRALIA

Adhikaree v Minister for Immigration and Border Protection [2014] FCA 564

THE COURT ORDERS THAT:

1.    The application be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    An application has been filed on behalf of Narayan Adhikaree, his wife and his son (“the applicants”) seeking an extension of time in which to file an application for leave to appeal from a judgment of the Federal Circuit Court given on 4 March 2014: Adhikaree v Minister for Immigration and Border Protection [2014] FCCA 621. The applicants are citizens of Nepal who have been in Australia since 2007 pursuant to a sub-class 457 visa. On 16 March 2011 Mr Adhikaree applied for a sub-class 856 visa on the basis that Mr Adhikaree was nominated for the position of an Indian cook by Sarita and Yogesh Mehra trading as Mehrey Da Daba Indian restaurant. Mr Adhikaree’s wife and son were included in the application as members of his family unit. On the same day, Mr Adhikaree’s proposed employer applied for approval of his nomination.

2    A delegate of the Minister refused the nomination under the employee nomination scheme on 12 December 2011 on the basis that it did not meet the requirements of reg 5.19(2) of the Migration Regulations 1994 (Cth) (the Regulations). On the same day a delegate refused the applicants’ visa application on the basis of not being satisfied that they met the requirements in clause 856.221 of Schedule 2 to the Regulations as the appointment mentioned in clause 856.213(a) had not been approved. The proposed employer sought a review by the Tribunal of the decision refusing the nomination. On 12 August 2013 the Tribunal, constituted by Ms Jennifer Ciantar, affirmed the decision under review on the basis that the Tribunal was not satisfied on the limited information provided, including the financial material from the employer, that the appointment would provide the employee with full time employment for three years to satisfy reg 5.19(2)(f) of the Regulations.

3    On 21 December 2011 the applicants had sought a review by the Tribunal of the decision which had been made by a delegate of the Minister to refuse them the visas. On 28 August 2013 the Tribunal wrote to the applicants, via their migration agent, informing the applicants that the Tribunal had affirmed the decision to refuse the employer’s nomination. That fact was relevant to the Tribunal’s consideration of their application for a visa and, accordingly, the Tribunal invited the applicants to comment on or to respond to that information which the Tribunal considered would be the reason, or part of the reason, for affirming the delegate’s decision on the visa application. The applicants were informed that if their comment or response was not provided in writing by 11 September 2013 the Tribunal might make a decision on their application without taking any further steps to obtain their comments or response, and that they would lose any entitlement which they might otherwise have had to appear before the Tribunal. No response was received by the Tribunal from the applicants and, accordingly, the Tribunal proceeded under s 359C of the Migration Act 1958 (Cth) to decide on the review without taking any further action to obtain the applicants’ comments or response. The applicants were not told that the Tribunal deciding their application would be constituted by the same Tribunal member who had decided to affirm the decision of the delegate not to approve the nomination of the proposed employer. On 8 October 2013 the Tribunal affirmed the decision under review refusing the visa application.

4    The applicants sought judicial review of the Tribunal’s decision refusing the application for an employer nomination (residence) (class BW) sub-class 856 visa. The basis of the appeal to the Federal Circuit Court was that the delegate who had declined the application for the visa had previously refused the application for approval of the nominator. The application commencing the proceeding in the Federal Circuit Court had stated:

1.    The applicants sought an Employer Nomination (Residence) (Class BW) visas. The delegate declined the application leading the applicants to appeal to the Tribunal. The Tribunal Member assigned to hear the application had earlier refused an application for approval of the nominator an had written to the applicants seeking comment as to why they should also not be refused as they could not succeed in light of the earlier refusal of the nominators application.

2.    The Migration Review Tribunal pursuant to provisions of the Migration Act 1958 on 23 September 2013 approved a Code of Conduct guiding the behaviour of members of the Tribunal. Paragraph 4 of the code requires members to disclose, and to take all reasonable steps to avoid, any conflict of interest (perceived or actual).

3.    The applicants claim that the member, having already decided the fate of the nomination, an allied but separate part of the approval process, ought not to have proceeded to decide the fate of the application of the present applicants as a conflict of interest could be seen to arise.

Particulars

The Tribunal could be perceived to be buttressing its earlier decision or, alternatively, be perceived as undermining the nominees' application by the earlier rejection of the nominator's review application.

The claim before the Federal Circuit Court was expressed in terms of a conflict of interest but, as the learned judge of the Federal Circuit Court correctly observed, the ground was in effect one of apprehended bias by reason of possible prejudgement: Adhikaree v Minister for Immigration and Border Protection [2014] FCCA 621 at [15]. The application was dismissed pursuant to r 44.12 of the Federal Court Rules on the basis that the applicants did not have an arguable case for relief. The dismissal of an application in the Federal Circuit Court pursuant to r 44.12 is an interlocutory judgment (Federal Circuit Court Rules 2001, r 44.12(2)) which requires leave for there to be an appeal: Federal Court of Australia Act 1976 (Cth), s 24(1A). An application for leave to appeal must be made within 14 days after the date on which the judgment was pronounced (Federal Court Rules 2011 (Cth), r 35.13(a)), which in the present case expired on 18 March 2014. The application for leave was not commenced until 27 March 2014 but in an affidavit by the applicants’ solicitor, Mr Melvin Newman, it was explained that the solicitor had been admitted to hospital for internal surgery on 18 March 2014 and had been in hospital for seven days. That affidavit sought an extension of time to allow an application to be filed in the circumstances that he had instructions from the applicants to appeal from his Honour’s orders.

5    In determining whether or not to extend time for compliance with an application for leave to appeal it is relevant to consider the length of the delay, the explanation for the delay, any prejudice to the other parties, and the merits of the proposed appeal: SZSPR v Minister for Immigration and Border Protection & Anor [2013] FCA 1210 at [16]; BZACZ v Minister for Immigration and Border Protection & Anor [2013] FCA 1230 at [23]. In this case the delay was of nine days but the Minister accepts that the period of time was short and that an adequate explanation has been provided in light of the affidavit from the applicants’ solicitor. The Minister also accepts that there is no prejudice by reason of the delay. The Minister contends, however, that the extension of time should be refused as there is no merit to the applicants’ grounds contained in the draft notice of appeal.

6    The significant question in this application for extension of time is, therefore, whether the proposed appeal has any merit. A consideration of the merits of the case is relevant both to whether to grant an extension of time as well as whether leave to appeal should be granted. In Gallo v Dawson (1990) 93 ALR 479 McHugh J said that in an application for an extension of time in which to file an appeal it is always necessary to consider the prospects of the applicant succeeding in the appeal. His Honour explained that the reason for that lay in the purpose of the rule being to ensure that rules which fix times for doing acts do not become instruments of injustice. At [2] his Honour said:

The applicant asserts, correctly in my opinion, that she was entitled to appeal as of right against the order of Wilson J. Section 34 of the Judiciary Act 1903 (Cth) provides that the High Court has jurisdiction to “hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers”. However, a notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O 70, r 3 of the Rules of the High Court (the Rules). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O 60, r 6 to support her application. That rule provides that the court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

His Honour’s decision was approved on appeal to the Full Court of the High Court: Gallo v Dawson (No 2) (1992) 109 ALR 319; see also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [35]-[39]. In DÉcor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 the Full Court adopted the observations in Niemann v Electronic Industries Ltd [1978] VR 431 of the considerations as “an appropriate litmus test for the general run of cases in which leave to appeal from an interlocutory decision was sought” to include:

(1)    whether in all the circumstances the decision [was] attended with sufficient doubt to warrant it being reconsidered by the Full Court; and

(2)    whether substantial injustice would result if leave were refused supposing the decision to be wrong. The test thus expressed is cumulative and not satisfied unless each is established: Mawson Finances Pty Ltd v Commissioner of Taxation (2010) 81 ATR 36 at [5]; See also Sharp v Deputy Commissioner of Taxation (1988) 19 ATR 908 at 910.

It is therefore necessary to ask whether there is sufficient doubt about the decision of the Federal Circuit Court to warrant an extension of time in which leave to appeal could be sought and whether a refusal would give rise to substantial injustice.

7    The draft notice of appeal, as initially filed on 27 March 2014, does not contain grounds of appeal identifying any error in the judgment in the Federal Circuit Court. The only ground in the draft notice of appeal as originally filed on 27 March 2014, is stated as:

The appellants seek to file an amended notice of appeal as soon as his Honour’s judgment becomes available.

The same appeared in the application for extension of time and leave to appeal. Mr Newman, however, relied at the hearing upon a different draft notice of appeal which he had sought to file with the Court, together with submissions, on 20 May 2014. The Minister did not object to the applicants’ relying upon the 20 May 2014 draft notice of appeal and submissions which had, apparently, been received by the Minister and had been the basis of the Minister’s submissions in the application to this Court.

8    The grounds of appeal relied upon in the 20 May 2014 draft notice of appeal relied, in substance, upon the same contention as had been made to his Honour in the Federal Circuit Court, namely, that the Tribunal’s decision was affected by a reasonable apprehension of bias. The grounds stated:

His Honour erred in law when he found that the Tribunal’s decision was not affected by a reasonable apprehension of bias – in the sense that a reasonable lay observer would not have perceived that the Tribunal could exercise no independent judgment in deciding the outcome of the case – even where the Tribunal gave no warning that it had previous involvement in the same proceedings or similar proceedings involving the same parties and in doing so did not provide the applicants with an opportunity to object to the same member hearing the present proceedings.

The ground as formulated had some ambiguity. On one reading of the ground the complaint was no longer one of apprehension of bias but of a failure to have given the applicants a hearing. The grounds, in the course of oral argument, at one point appeared as a complaint that the proceeding had not been adjourned albeit that the applicants had not attended the hearing and had not sought an adjournment. On another reading of the grounds, the emphasis might be seen to be in the failure to have informed the applicants that the person making the decision on their application was the same person who had made the decision on the employer’s application rather than a claim of apprehended bias arising from the fact that the applicants’ application was decided by the same person as had decided the application by the proposed employer.

9    It was clear from the submissions, however, both oral and in writing, for the applicants, that the challenge was to his Honour’s decision that a hypothetical lay observer would not apprehend bias in the context in which the relevant Tribunal member was having to decide the visa application. Mr Newman, correctly, accepted that the learned Judge in the Federal Circuit Court had correctly stated the relevant legal test to decide a question of apprehended bias by reason of prejudgment. In that regard his Honour said:

16.    Turning to the question of apprehended bias by reason of prejudgment, for the applicants to make out that allegation they must demonstrate that a fair minded lay observer properly informed as to the nature of the proceeding, the matters in issue and the conduct said to give rise to an apprehension of bias might reasonably apprehend the possibility the Tribunal was not bringing an impartial and unprejudiced mind to the resolution of the question it was required to decide: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425.

The learned Judge then went on to apply the principle to the facts before him saying:

17.    The applicants did not suggest that any apprehension of bias attached to the antecedent decision concerning the proposed nominated position. Consequently, it is only the decision concerning the applicants’ visa application which needs to be considered by reference to the question of apprehended bias.

18.    In this case, the Tribunal’s hands were tied by the Regulations. Given its earlier affirmation of the decision concerning the proposed nominated position, it had no alternatives to making the decision it did on the applicants’ review.

Mr Newman, on behalf of the applicants, challenged the conclusion reached by his Honour but did not point to any error in reaching that conclusion. A critical element in his Honour’s conclusion was that questions of prejudgment were irrelevant to the application of the Regulations as drawn. A properly informed lay observer would take into account the task to be undertaken by the relevant tribunal when considering whether there was any reasonable apprehension of bias. The situation confronting the Tribunal in this case was unlike, for instance, that in British American Tobacco Australia Services v Laurie (2011) 224 CLR 383, where a judge had made findings of fraud and might subsequently need to make credit findings in the same action. In this case the task before the Tribunal was simply to find whether there were the facts required for the regulation to operate. His Honour found, correctly, that in those circumstances a fair-minded lay observer properly informed as to the nature of the proceeding would not have a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the determination of the question it was required to decide. A fair-minded lay observer would properly be informed about the criteria to be satisfied for the visa sought. Those criteria were set out in part 856 of the Regulations as recited by his Honour in paragraph [6] of his reasons for judgment. There was no element of discretion or judgment bearing upon those criteria which could cause the Tribunal member not to bring to bear unbiased mind to the decision. The Tribunal needed to apply the regulation upon the objective facts as found.

10    It follows that the appeal cannot succeed and, accordingly, the extension of time for leave to appeal will not be granted.

Associate:

Dated:    29 May 2014