FEDERAL COURT OF AUSTRALIA

Sapkota v Minister for Home Affairs [2020] FCA 167

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant seeks an extension of time to appeal from orders made by the Federal Circuit Court of Australia (FCCA) on 22 November 2018. The FCCA’s reasons for judgment are reported as Sapkota v Minister for Immigration and Border Protection [2018] FCCA 3043.

Summary of background matters

2    The applicant’s last substantive visa was cancelled in March 2010. On 20 January 2014, he applied for a partner visa (specifically, a Partner (Temporary) (Class UK) visa), based on his relationship with his sponsor, who is his wife. The delegate refused the partner visa application on 1 May 2015 on the basis that the applicant did not satisfy cl 820.211(2)(d)(ii) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). This required that he satisfy criteria 3001, 3003 and 3004 of Sch 3 of the Regulations, unless the Minister was satisfied that there were compelling reasons for not applying those criteria.

3    Mr Sapkota sought a review of the delegate’s decision in the Administrative Appeals Tribunal (AAT). His review application was dismissed on 19 November 2015 on the basis that he did not appear at the AAT’s scheduled hearing. It was unnecessary for the AAT to consider and determine the merits of the review application. In the absence of an application by Mr Sapkota for the AAT to reinstate his review application, on 4 December 2015 the AAT affirmed the original dismissal decision under s 362B(1E) of the Migration Act 1958 (Cth) (the Act).

4    On 7 March 2016, Mr Sapkota sought an extension of time in the FCCA in which to seek judicial review of the AAT’s decision dated 4 December 2015. An extension of time was granted. On 6 June 2016, the AAT’s decision was set aside by consent by the FCCA. The review application was remitted for reconsideration on the basis that the AAT had not provided Mr Sapkota with a copy of the decision dated 19 November 2015 which then permitted him to seek a reinstatement of his AAT review application within 14 days in accordance with s 362B(1B) of the Act.

5    In the remitted proceeding in the AAT, Mr Sapkota was invited to attend a further hearing on 7 October 2016. The day before the scheduled hearing, Mr Sapkota contacted the AAT and said that his wife was in custody, that he was depressed and could not attend the hearing. Mr Sapkota’s migration agent was advised on 6 October 2016 that the AAT had postponed the hearing until 24 October 2016 and the applicant was invited to attend. On 19 October 2019, the applicant withdrew his migration agent as his authorised recipient. Despite SMS reminders being sent to Mr Sapkota’s mobile telephone on 17 and 21 October 2016, Mr Sapkota did not appear at the rescheduled AAT hearing on 24 October 2016.

6    On 25 October 2016, the AAT made a decision on the review under s 362B(1A)(a) of the Act without taking any further action to enable Mr Sapkota to appear before it. It affirmed the delegate’s decision dated 1 May 2015.

7    In its reasons for decision for affirming the delegate’s decision, the AAT noted that, because Mr Sapkota did not hold a substantive visa at the time of his partner visa application, he had to satisfy criteria 3001, 3003 and 3004 in Sch 3 to the Regulations unless it was satisfied that there were “compelling reasons” for not applying those criteria.

8    The AAT considered whether there were compelling reasons, but it found at [20] that it had insufficient evidence to make any critical assessment of whether Mr Sapkota and his sponsor were and continued to be in a genuine, continuing and exclusive relationship at the time of either the visa application or the AAT’s decision. The AAT was prepared to accept that the couple was in a genuine and continuing relationship, but it considered that that alone was insufficient to provide a compelling reason for not applying the relevant criteria. There had to be some particular aspect of such a relationship which provided a compelling reason (see AAT’s reasons at [21]).

9    The AAT noted at [23] that the delegate was aware that Mr Sapkota’s sponsor was in custody at the time of the delegate’s decision and that Mr Sapkota was caring for her four year old son. It further noted, however, that no evidence was provided to support Mr Sapkota’s claims of a relationship with the sponsor’s son or any caring arrangements relating to him.

The FCCA proceedings

10    The sole ground of judicial review was that the AAT erred by not adjourning the hearing despite knowing that Mr Sapkota’s partner was in custody, that he was suffering from severe depression and was also taking care of the sponsor’s four year old son.

11    The applicant had legal representation in the FCCA.

12    The primary judge dismissed the judicial review application. His Honour at [18] of his reasons rejected the applicant’s contention that the AAT had a general duty to inquire, while acknowledging that such a duty may arise in particular circumstances, referring to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123.

13    The primary judge held that the particular circumstances of the case did not enliven any duty of inquiry by the AAT. His Honour said at [19]-[20] that it was evident from [23] of the AAT’s reasons for decision that it was aware of the matters advanced by Mr Sapkota, but that the problem was the lack of claim or supporting evidence. The AAT noted that the Department did not receive any evidence or further submissions to support the applicant’s claims of a relationship with the sponsor’s son or any caring arrangements concerning him, nor did the Tribunal receive any submissions or arguments, which might constitute compelling reasons for waiving the relevant criteria.

14    The applicant’s written submissions in the FCCA raised another matter which was not included in the scope of the originating application, namely that because on the remittal the AAT was constituted by the same member who constituted the original AAT review whose decision was set aside by consent, there was an apprehension of bias.

15    This claim was rejected by the primary judge at [22]-[23] on the basis that:

(a)    it was a serious allegation which had to be distinctly made and clearly proven, yet there was no evidence to support it;

(b)    the AAT’s original decision dismissing the application occurred without any further consideration of the application or information before the AAT;

(c)    when the matter was remitted, the AAT again made a decision on the review without taking any further action to enable the applicant to appear before it; and

(d)    moreover, merely because the same AAT member heard the matter on remittal was not, of itself, sufficient to establish bias, referring to MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100; 70 AAR 22 at [39]-[48].

16    The primary judge also explained at [25]-[30] why he considered that the AAT had properly discharged its powers in s 362B of the Act and, in particular, that Mr Sapkota had been validly invited to appear before the AAT.

17    Finally, with specific reference to the applicant’s claims below of legal unreasonableness in the exercise of AAT’s discretion under s 362B(1A)(a) (which apparently was allowed to be raised even though it was not included in the originating application), the FCCA noted that the issue is “invariably fact dependent” (see [31]). The primary judge took into account that Mr Sapkota had a “track record of failing to engage” with the AAT (see [32]). This was because he did not appear at the scheduled hearing in 2015, nor did he seek to have that review application reinstated after it was dismissed. It was further noted that although Mr Sapkota had told the AAT that he would not be attending the first scheduled hearing, he made no further adjournment request following the rescheduling of that hearing. The primary judge also took into account the two SMS reminders which were sent to Mr Sapkota (see [33]).

18    The primary judge concluded at [34] that the exercise of discretion under s 362B(1A)(a) “fell within the range of possible, acceptable outcomes that are defensible in respect of the facts and law”, citing inter alia Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [105].

The proceedings in this Court

19    To explain the delay in seeking to appeal, the applicant relied upon an affidavit sworn by his then solicitor who, as noted above, is now deceased. The Minister did not take any point in respect of this matter. The solicitor deposed that he emailed a copy of the FCCA’s decision to the applicant’s proposed migration agent in circumstances where he was unaware that the agent was overseas. The solicitor also deposed that he had assumed that there was no need to consider an appeal in Mr Sapkota’s matter. He deposed that it was only on 2 February 2019 that Mr Sapkota’s brother contacted him and said that an application for leave to appeal should be made. The solicitor further deposed that he had been ill at home for the two months preceding 2 February 2019. I accept that evidence, which provides a sufficient explanation for the delay.

20    The initial draft notice of appeal contained the following single ground:

The Court erred when it held that there were no grounds to apprehend bias when the review application was heard by the same member who had earlier declined to remit the matter to the Minister’s delegate.

21    The hearing of the application for an extension of time was adjourned because, sadly, the applicant’s initial legal representative was ill and subsequently passed away. When the matter came on for hearing on 19 February 2020, the applicant was represented by Ms Rita Lahoud of counsel, who had apparently come into the matter only recently. She provided a brief outline of submissions on the morning of the hearing. During the course of the hearing, Ms Lahoud sought to amend the draft notice of appeal so as to add the following proposed ground:

His Honour’s finding that the circumstances of this case demonstrate that the Tribunal’s exercise of its discretion under s 362B(1A)(a) of the Migration Act fell within the range of possible, acceptable actions that are defensible is incorrect.

The parties’ submissions summarised

22    The applicant’s submissions may be summarised as follows. First, the applicant’s written outline of submissions were directed not to the question of whether there was a jurisdictional error “because of bias that took place at a hearing where the appellant (sic) did not appear, [but] rather the jurisdictional error occurred before the hearing took place by allowing the same member to sit and hear the matter”. The applicant submitted at [17] of the written outline:

The nature of the decision that the decision-maker is involved in, which varies from case to case, should have been taken into account, prior to allocating a member to ensure an unbiased, fair, impartial review. A clean page. In this case having the same member, in a situation where the onus on the decision-maker was high, the need to allocate the matter to a new member was imperative and at least sufficient enough to establish bias. The appellant (sic) disagrees with the tribunal’s view that in the circumstances of this case the fact that the same tribunal member made the decision is insufficient to establish bias (at paragraph 23, page 17).

23    Secondly, the applicant’s written submissions addressed the issues raised by proposed ground 2, including the claim that the AAT “did not exercise its discretion under s.362B(1A)(a) reasonably as it did not engage reasonably with the defendant (sic)” in circumstances where he was unable to attend the hearing.

24    Thirdly, in oral address, Ms Lahoud pointed to the following factors which she contended were relevant to the question of the reasonableness of the AAT’s decision to exercise its discretion under s 362B(1A)(a) in the way that it did:

(a)    the applicant’s wife was in custody;

(b)    the applicant was the sole carer of his wife’s four year old son;

(c)    the applicant was depressed; and

(d)    the applicant lacked both community and family support, in circumstances where the identity of the child’s father was unknown.

25    Fourthly, in oral address Ms Lahoud said that in a usual case the AAT’s exercise of discretion would not be unreasonable, but that it was “not reasonable enough” in the particular circumstances here, which she said included the fact that the AAT had communicated with the applicant by sending him two SMS messages to remind him of the hearing on 24 October 2016, rather than using email which is how the applicant had communicated with it.

26    It is unnecessary to summarise the Minister’s written submissions because they are substantially reflected in my reasons below for dismissing the application.

Analysis and determination of the application

27    As to the first proposed ground of appeal, the relevant test for reasonable apprehension of bias is well settled. In brief, it is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the decision-maker might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337).

28    As the Minister pointed out, the applicant failed to identify any particular feature of his case before the AAT which gives rise to an apprehension of bias. The AAT’s initial decision to dismiss the applicant’s review application was based upon his failure to appear at the scheduled AAT hearing. No consideration was given in that decision to the merits of the applicant’s review application. The merits of the review application were heard and determined only once, being on remittal, when relevantly the applicant also failed to appear before the AAT. Accordingly, where the same AAT member heard and determined the applicant’s review application on its merits after the matter was remitted, the applicant cannot demonstrate apprehended bias absent some other relevant feature apart from the fact that the two matters were heard by the same AAT member. Critically, the merits of the review application were heard and determined only once by the same member i.e. when the matter was remitted by consent. There was no previous determination on the merits by that member who, on the first occasion, disposed of the matter summarily by exercising the power under s 362B.

29    In these circumstances, proposed ground 1 of the amended draft notice of appeal does not raise a sufficiently arguable appealable error to warrant time being extended (see the relevant principles concerning extensions of time in SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ).

30    As to the second proposed ground (which was opposed by the Minister on the ground that it lacked reasonable prospects) of appeal, I will now explain why I accept the Minister’s position.

31    First, it is evident that the applicant’s proposed unreasonableness ground related to the outcome of the exercise of the AAT’s discretion under s 362B(1A)(a) and not to the reasoning process leading up to that decision (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47] per Allsop CJ, Robertson and Mortimer JJ). Further, as was pointed out there at [47], where there are reasons given for the exercise of the discretion they provide the primary focus as to whether the exercise of the discretion in a particular way is justified. Only in a rare case would a Court find that, even though the reasons demonstrate a justification, the ultimate exercise of the power would be seen to be legally unreasonable.

32    There is no doubt that the primary judge understood and correctly applied these principles, as is reflected in [31]-[34] of his reasons for judgment.

33    Having regard to the need to follow the approach established in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541, I consider that there are insufficient prospects for the applicant to establish that it was legally unreasonable for the AAT to proceed. The AAT properly took into account the history of the applicant not appearing at several scheduled hearings and the fact that he did not request the 24 October 2016 hearing to be adjourned. Both the primary judge and the AAT were aware that the applicant’s wife was in custody, that the applicant was caring for her son and that the applicant was depressed. These matters are expressly referred to at [6] and [10] of the primary judge’s reasons. It is also noted that the applicant did not provide the AAT with any medical evidence concerning his depression and I strongly doubt that the AAT had any obligation to make its own enquiries in relation to that matter (see SZIAI).

34    The other factors raised by Ms Lahoud relating to the lack of support for the applicant were raised for the first time before me and lacked a satisfactory evidentiary basis.

35    As to the complaint that the AAT should have contacted the applicant by email because that is the way he had contacted it, that does not give rise to unreasonableness in circumstances where the AAT had been provided with the applicant’s mobile telephone number and used that medium to send him two written text messages reminding him of the hearing on 24 October 2016.

36    For these reasons, I do not consider that the applicant’s proposed legal unreasonableness ground has sufficient prospects to warrant time being extended.

Conclusion

37    For these reasons, the application for an extension of time will be dismissed, with costs.

Associate:

Dated:    19 February 2020