Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885

FEDERAL COURT OF AUSTRALIA

Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 IMMIGRATION – Migration Review Tribunal – whether decision affected by actual bias – whether actual bias to be inferred from reasoning of Tribunal. Migration Act 1958 (Cth), s 476.

Migration Regulations 1994 (Cth), reg 1.15A; Sch 2, Part 100.

Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, applied. Abebe v Commonwealth (1999) 197 CLR 510, cited. Re Gooliah and Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224, cited. Jia v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556, applied. Li v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 125, cited. Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited.

Crock, "Of Fortress Australia and Castles in the Air: The High Court and the Judicial Review of Migration Decisions" (2000) 24 Melb Uni LR 190 SOVAN YIT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 443 OF 2000 SACKVILLE J 27 JULY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 443 OF 2000

BETWEEN: SOVAN YIT

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 27 JULY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's 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 443 OF 2000

BETWEEN: SOVAN YIT

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 27 JULY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS 1 In Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (FC), Wilcox J pointed out that the limitations imposed by s 476 of the Migration Act 1958 (Cth) ("Migration Act") on the grounds of review available in the Federal Court encourage disappointed migration applicants to search amongst the few available statutory grounds of review for an arguable basis on which to challenge the administrative decision refusing their application. His Honour remarked presciently that (at 122): "[i]t will not be surprising if, in their disappointment at the Tribunal's decision, many claim actual bias. The result will be to substitute for an inquiry into the character of the decision an inquiry into the character of the decision-maker". The present case is an illustration of the tendency foreseen by Wilcox J. 2 The applicant in this Court (the "sponsor") seeks review of a decision made by the Migration Review Tribunal (the "Tribunal") on 19 April 2000. The Tribunal affirmed a decision of a delegate of the respondent ("the Minister") refusing the applicant's wife, Somarlime Nut ("the visa applicant"), a Spouse (Migrant) (Class BC) Subclass 100 (Spouse) visa. The visa applicant is a citizen and resident of Cambodia. The sponsor is a citizen and resident of Australia. 3 When the proceedings were commenced in this Court, the sponsor was not legally represented. His application to this Court did not identify any ground of review available under the Migration Act. At the hearing, however, the sponsor was represented by Mr McHugh of counsel. Mr McHugh did not seek to file an amended application, but relied on written submissions. Those submissions identified two grounds specified in s 476(1) of the Migration Act on which the sponsor relied, namely (a) that the decision "involved an error of law" (s 476(1)(e)); and (b) that the decision was "affected…by actual bias" (s 476(1)(f)). 4 In the course of argument, Mr McHugh abandoned the contention that the decision of the Tribunal involved an error of law. The sole issue, therefore, is whether the decision of the Tribunal was affected by actual bias.