FEDERAL COURT OF AUSTRALIA Moimoi v Minister for Immigration & Multicultural Affairs [2000] FCA 152 MIGRATION – whether primary judge was biased – whether appellant denied natural justice Migration Act 1958 (Cth) s 476(1) Federal Court Rules O 20, r 2 Migration Regulations 1994 Schedule 3, criterion 3002 Faleafa v Minister from Immigration & Multicultural Affairs [1999] FCA 1091 cited Pillay v Minister for Immigration & Multicultural Affairs [2000] FCA 112 followed Tuitupou v Minister for Immigration & Multicultural Affairs [2000] FCA 117 followed Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118 followed MOIMOI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1082 of 1999 CARR, SACKVILLE & R D NICHOLSON JJ 18 FEBRUARY 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1082 OF 1999 BETWEEN: PAULO MOIMOI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: CARR, SACKVILLE & R D NICHOLSON JJ DATE OF ORDER: 18 FEBRUARY 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal stand over for consideration of the appellant's application for leave to amend the notice of appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1082 OF 1999 BETWEEN: PAULO MOIMOI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: CARR, SACKVILLE & R D NICHOLSON JJ DATE: 18 FEBRUARY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT The Appeal 1 This is an appeal from a decision of a primary judge (Whitlam J) given on 3 September 1999. The primary Judge dismissed an application by the appellant for review of a decision of the Immigration Review Tribunal ("the IRT") given on 18 May 1999. The primary Judge dismissed the proceedings pursuant to Federal Court Rules O 20, r 2, which empowers the Court to dismiss a proceeding where it appears to the Court that no reasonable cause of action is disclosed or the proceeding is frivolous or vexatious or an abuse of the process of the Court. His Honour acceded to a motion filed by the respondent ("the Minister"), which sought orders summarily dismissing the proceedings. The appellant did not appear at the hearing of the motion. 2 The notice of appeal specifies two principal grounds. These claim that: (i) the primary Judge was biased; and (ii) the appellant was denied natural justice. Background 3 The appellant is a citizen of Tonga, born on 11 March 1969. He entered Australia on a visitor's visa on 17 November 1992. This visa expired on 17 December 1992. The appellant has not held a substantive visa since that time. 4 The appellant lodged an application for a Change in Circumstance (Residence) (Class AG, subclass 806) visa on 9 May 1997. The application was made on the basis that the appellant was a "special need relative" of an Australian permanent resident, namely, his sister, Susan Taufalele. On 16 December 1998, a delegate of the Minister refused to grant the visa. On 5 January 1999, the appellant lodged an application for review of the delegate's decision with the IRT. The IRT affirmed the decision to refuse the grant, on the basis that the original application has not been lodged within the period required by criterion 3002 in Schedule 3 of the Migration Regulations 1994. Criterion 3002 requires the application to be made within twelve months after the "relevant day" as defined by criterion 3001(2). The IRT found that the relevant day in the appellant's case was 17 December 1992, the last day on which he held a substantive visa. 5 The appellant applied to the Court pursuant to s 476 of the Migration Act 1958 (Cth) ("Migration Act") to review the decision of the IRT. The grounds of the application were as follows: "1. The applicant was refused a residence visa on the basis of clause 3002 '12 months rule' involved an error of law. 2. Procedures required to be observed by the Migration Act and Regulations were not observed by the respondent in connection with clause 3002. 3. The decision was induced by fraud, bad faith or actual bias. 4. The respondent had allowed off shore applicants of 2705 to remain in Australia while a residence visa was processed overseas during 1995 and 1996 calender years in breach of clause 3002 5. The respondent and others had failed to follow its own policy MSI No. 121 of 1995 effective 8 September 1995 in breach of clause 3002 '12 months rule' 6. The Tribunal was judicially biased and unprincipled in its failure to refer the matter to the minister for reconsideration in connection with discrimination suffered by the applicant at the hands of the Department of Immigration by allowing 2705 offshore applicants in 1995 and 1996 calender years to remain in Australia while a residence visa was processed overseas in breach of clause 3002 '12 months rule' ". 6 At the first directions hearing on 22 July 1999, the appellant appeared in person accompanied by Mr Fonua. The latter, who is neither a lawyer, nor a migration agent, sought leave to appear for the appellant. The primary Judge declined to grant the leave sought. He took this course, as appears from his Honour's judgment of 3 September 1999, because he formed the view that the appellant was able to understand English and there was nothing to indicate any basis on which Mr Fonua could properly be given leave to appear. In particular, it was not shown that Mr Fonua was a legitimate representative of an association of individuals who might have an interest in common with the appellant or that he was better able to represent the appellant than the appellant himself. 7 On 12 August 1999, the Minister filed the motion seeking summary dismissal of the application. A further directions hearing was held on 19 August 1999. The appellant was present. His Honour directed that the motion be set down for hearing on 3 September 1999. It is clear from the transcript, which was in evidence before us, that the primary Judge asked the appellant whether that date was convenient and received an affirmative answer. Consequential directions were then made. 8 The appellant did not appear at the hearing on 3 September 1999. The primary Judge dealt with the motion in his absence. 9 His Honour noted that the appellant raised only three grounds that could readily be fitted within the framework of s 476(1) of the Migration Act. As to these, he reached the following conclusions: (i) The IRT had not erred in law in its application of criterion 3002. (ii) There was no basis for suggesting that the procedures required by the Migration Act and Migration Regulations had not been complied with. (iii) The contention that the IRT's decision was induced by fraud, bad faith or actual bias had been advanced by another applicant in virtually identical terms and rejected: Faleafa v Minister from Immigration & Multicultural Affairs [1999] FCA 1091. The primary Judge considered that what had been said in that case applied to the case before him. 10 Since his Honour considered that all grounds relied upon were entirely hopeless, he concluded that the Minister was entitled to an order dismissing the proceedings. Reasoning 11 The appellant has been permitted on this appeal to rely on an affidavit in support of the grounds identified in the notice of appeal. The affidavit does not provide any adequate explanation for the appellant's failure to appear at the hearing before the primary Judge on 3 September 1999. 12 There is, in our view, no foundation for the appellant's claim that the primary Judge was biased against him. Nor is there anything to suggest a reasonable apprehension of bias. The primary Judge set down the matter for hearing in the presence of the appellant. His Honour addressed at the hearing the legal issues raised by the Minister's motion and ruled on them. The appellant has given no sufficient reason for failing to appear at the hearing. 13 Nor is there any foundation for the appellant's claim that he was denied natural justice. He was given the opportunity to adduce evidence and to appear at the hearing of the motion. He apparently decided not to avail himself of that opportunity. 14 The appellant complains about the primary Judge's refusal at the directions hearing to permit Mr Fonua to represent him. Mr Fonua is neither a lawyer nor a migration agent and his Honour was not bound to allow him to represent the appellant. (On the appeal we gave leave to Mr Fonua to represent the appellant, but we did so without prejudice to the Minister's contention that there was no denial of procedural fairness in his Honour declining to grant leave to Mr Fonua to assist the appellant at the directions hearing.) As the transcript of the directions hearing demonstrates, the primary Judge advised the appellant to obtain a solicitor to represent him. The primary Judge also made it clear, however, that if the appellant could put forward material which convinced his Honour that Mr Fonua should be given leave to appear or to assist him in resisting the motion, he would consider the application at the hearing. Since neither the appellant nor Mr Fonua appeared at the hearing of the motion, his Honour had no occasion to rule on whether or not Mr Fonua should be permitted to act on the appellant's behalf. 15 The notice of appeal does not identify any errors of law on the part of the primary Judge (other than the claims of bias and denial of natural justice). We should note, nonetheless, that the grounds relied on by the appellant in his application for review of the IRT's decision duplicate those dealt with in other appeals by Tongan nationals concerning the validity or operation of criterion 3002. These decisions demonstrate that there is no substance in any of the grounds and that the primary Judge was correct to dismiss the application. See Pillay v Minister for Immigration & Multicultural Affairs [2000] FCA 112 (FC) (holding criterion 3002 to be a valid exercise of the regulation-making powers in the Migration Act); Tuitupou v Minister for Immigration & Multicultural Affairs [2000] FCA 117 (FC) (rejecting the so-called "back door argument"); Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118 (FC) (rejecting other arguments that criterion 3002 is invalid). Application to Amend 16 Mr Fonua applied to amend the grounds of appeal to raise what he said were constitutional issues. He did not formulate the amendments, but said that the grounds were identical to those he had raised the course of argument in Tuitupou and Fakatava. We reserve our decision on the application to amend. We shall deal with it when we deliver judgment on what are said to be the constitutional questions in Tuitupou and Fakatava. Conclusion 17 Subject to the appellant's application to amend the notice of appeal, the appeal fails. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 18 February 2000 Mr L Fonua assisted the appellant, by leave. Solicitor for the Respondent: Australian Government Solicitor (Mr M Allatt appeared) Date of Hearing: 18 February 2000 Date of Judgment: 18 February 2000