Minister for Immigration & Multicultural Affairs v Asif [2000] FCA 228

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Asif [2000] FCA 228

IMMIGRATION- whether or not the Immigration Review Tribunal's decision not to grant a spouse visa to the respondent was affected by actual bias - Immigration Review Tribunal's failure to consider evidence other than that of respondent on the issue of his commitment to his marriage Migration Act 1958 (Cth) ss 31 and 476(1)(f) Migration Regulations 1994 (Cth) reg 1.15A and 2.03 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 cited Sarbjit Singh v Minister for Immigration and Ethnic Affairs (Lockhart J, 18 October 1996, unreported) cited Galea v Galea (1990) 19 NSWLR 263 applied MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v MUHAMMAD ASIF N 1351 OF 1999 DRUMMOND, NORTH AND MADGWICK JJ 7 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1351 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPELLANT

AND: MUHAMMAD ASIF

RESPONDENT

JUDGES: DRUMMOND, NORTH AND MADGWICK JJ

DATE OF ORDER: 7 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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 1351 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPELLANT

AND: MUHAMMAD ASIF

RESPONDENT

JUDGES: DRUMMOND, NORTH AND MADGWICK JJ

DATE: 7 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of Mansfield J setting aside a decision of the Immigration Review Tribunal. The Tribunal affirmed a decision that the respondent was not entitled to a sub-class 820 spouse visa made by the respondent's delegate and then confirmed by an internal review officer. The only ground upon which review of the Tribunal's decision by the learned primary judge was sought was that it was affected by actual bias: see s 476(1)(f) the Migration Act 1958 (Cth). His Honour held that that ground was made out, set aside the Tribunal's decision and directed that the respondent's visa application be remitted for rehearing to a Tribunal differently constituted. 2 There was no dispute either before the learned primary judge or this Court as to the principles to be applied in determining whether a Tribunal decision is affected by actual bias. It is enough, for present purposes, to note that before a finding can be made of actual bias sufficient to invalidate a decision, the Tribunal must "as least in some respect [have] prejudged the case, so as to be unable or unwilling to decide it impartially": Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127. The fact that a decision-maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias: "There will be actual bias only when preliminary views are incapable of alteration". See Sun at 123. "Bias is not synonymous with absence of good faith; a person may in all good faith believe that he was acting impartially, but his mind may nevertheless be affected unconsciously by bias.": Sarbjit Singh v Minister for Immigration and Ethnic Affairs (Lockhart J, 18 October 1996, unreported). 3 Before a person is entitled to a sub-class 820 visa of the kind sought by the respondent, he is required by s 31(3) of the Act and reg 2.03 the Migration Regulations 1994 (Cth) to satisfy certain "primary criteria" set out in Sch 2 to the Regulations, which include the following: