FEDERAL COURT OF AUSTRALIA Yadagiri v Minister for Immigration & Border Protection [2017] FCA 145 Appeal from: Yadagiri v Minister for Immigration & Anor [2016] FCCA 2279 File number(s): NSD 1623 of 2016 Judge(s): WIGNEY J Date of judgment: 22 February 2017 Catchwords: MIGRATION – judicial review – application for Student (Temporary) (Class TU) visa refused – whether jurisdictional error on the part of the Migration Review Tribunal – whether actual bias on the part of the Tribunal member – whether apprehended bias on the part of the Tribunal member – whether the Tribunal member prejudged that the appellant did not meet the 'genuine temporary entry criterion' Legislation: Migration Regulations 1994 (Cth), cl 572.223(1), 572.223(2) Cases cited: Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 Re Refugee Review Tribunal; ex parte H [2001] HCA 28 Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 Date of hearing: 22 February 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Ms C Hillary of DLA Piper Australia Counsel for the Second Respondent: The second respondent filed a submitting appearance save as to costs ORDERS NSD 1623 of 2016 BETWEEN: CHAKRADHAR KADARAM YADAGIRI Appellant AND: MINISTER FOR IMMIGRATION & BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: WIGNEY J DATE OF ORDER: 22 FEBRUARY 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 (Delivered ex tempore, revised from transcript) WIGNEY J: 1 Mr Chakradhar Yadagiri is a national of India. He has resided in Australia since 2008 as the holder of a succession of student visas. That state of affairs effectively came to an end when, in February 2015, a delegate of the Minister for Immigration and Border Protection refused to grant Mr Yadagiri a further student visa. Mr Yadagiri applied to the Migration Review Tribunal for a review of that decision. That application was unsuccessful. He then challenged the Tribunal's decision in judicial review proceedings in the Federal Circuit Court of Australia. He alleged, in short terms, that the Tribunal was biased and denied him procedural fairness. The primary judge in the Circuit Court rejected both contentions and dismissed Mr Yadagiri's application. 2 Mr Yadagiri appealed the judgment of the primary judge. The sole ground of appeal is that the primary judge erred in not holding that the Tribunal "made jurisdictional error on account of apprehended bias." The central question raised by the appeal is whether the Tribunal's conduct of the review hearing supports a finding that a fair-minded lay observer might reasonably apprehend that the presiding Tribunal member might not have brought an impartial mind to the consideration and determination of Mr Yadagiri's review application. 3 For the reasons that follow, the primary judge was correct in rejecting Mr Yadagiri's contention of actual bias on the part of the Tribunal. There is also no basis for a finding of apprehended bias. The appeal must accordingly be dismissed. Background 4 Mr Yadagiri applied for a Student (Temporary) (Class TU) visa on 19 August 2014. Prior to that application, Mr Yadagiri had successfully applied for four previous student visas since arriving in Australia in October 2008. 5 At the time of the Tribunal's decision, the criteria for the grant of such a visa were set out in clause 572 of schedule 2 to the Migration Regulations 1994 (Cth). Relevantly, the criteria to be satisfied included the criteria set out in clauses 572.223(1) and (2) which were in the following terms: 572.223 (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because: (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: (i) the applicant's circumstances; and (ii) the applicant's immigration history; and (iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and (iv) any other relevant matter; and (b) the applicant meets the requirements of subclause (1A) or (2). … (2) If subclause (1A) does not apply: (a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to: (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and (ii) any other relevant matter; and (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity. 6 For convenience, the criterion in clause 572.223(1) may be referred to as the "genuine temporary entrant criterion", and the criterion in clause 572.223(2)(c) may be referred to as the "financial capacity criterion". 7 In February 2015, a delegate of the Minister refused Mr Yadagiri's visa application on the basis that the delegate was not satisfied that Mr Yadagiri met either the genuine temporary entrant criterion or the financial capacity criterion. 8 Mr Yadagiri applied to the Tribunal for a review of the delegate's adverse decision. The tribunal's review 9 Mr Yadagiri appeared before the Tribunal to give evidence and present arguments concerning his review application. While no transcript of the hearing was tendered in the court below, or on appeal, the Tribunal's reasons record that at the hearing, the Tribunal asked Mr Yadagiri a number of questions which appeared to be directed at ascertaining whether Mr Yadagiri satisfied the genuine temporary entrant criterion. 10 In considering whether Mr Yadagiri met the genuine temporary entrant criterion, the Tribunal considered that it was required to have regard to Direction No. 53, 'Assessing the genuine entrant criterion for student visa applications' made under s 499 of the Migration Act 1958 (Cth). That direction required the Tribunal to have regard to a number of specified factors in relation to, amongst other things: the visa applicant's circumstances in their home country; the applicant's potential circumstances in Australia; the value of the course to the applicant's future; and the applicant's immigration history, including previous visa applications and previous travel to Australia or other countries. The Tribunal's reasons record that the Tribunal asked Mr Yadagiri a series of questions in relation to the matters referred to in Direction No. 53. 11 It would appear from the Tribunal's reasons that Mr Yadagiri was also asked some questions directed to the financial capacity criterion. The Tribunal's reasons record the following (at [15]): The Tribunal raised issues regarding financial capacity. The applicant said he did not have further evidence but could provide further evidence if given time. The Tribunal considered this request but made a decision not to provide any further time on the basis that financial capacity was not going to be an issue in the decision. 12 The Tribunal found that Mr Yadagiri did not satisfy the genuine temporary entrant criterion. It is unnecessary to rehearse the Tribunal's reasons for so finding. They are set out at paragraph [21] of its reasons. Mr Yadagiri did not challenge any aspect of the Tribunal's reasons for finding that it was not satisfied that Mr Yadagiri intended genuinely to stay in Australia temporarily. 13 The Tribunal's reasons record the following in relation to the financial capacity criterion (at [22]): The Tribunal also notes that the applicant's application was refused at the departmental level on the basis of financial capacity. Financial capacity was briefly raised during the hearing but in the face of the current findings financial capacity has not been considered further as an issue by the Tribunal. 14 Having found that it was not satisfied that Mr Yadagiri met the genuine temporary entrant criterion, the Tribunal affirmed the decision not to grant Mr Yadagiri a Student (Temporary) (Class TU) visa. The Circuit Court proceedings and judgment 15 Mr Yadagiri's application in the Circuit Court specified the following two grounds of challenge to the Tribunal's decision (as drafted): 1. The Tribunal erred in law as the member was predisposed to refuse the review which exhibited certain amount of bias towards the applicant. Particulars The Tribunal in para 15 observed that "The Tribunal raised issues regarding the financial capacity. The applicant said he did not have further evidence but could provide further evidence if given time. The Tribunal considered this request but made a decision not to provide any further time on the basis that financial capacity was not going to be an issue in the decision". It is submitted that having raised the issue of financial capacity of the applicant extensively at the time of hearing, when the applicant made a submission that he will provide further evidence of financial capacity if the hearing is adjourned, the honourable Member observed that it is not an issue. If the financial capacity is not an issue it is respectfully submitted that the Honourable Member did raise several questions on financial capacity and when I attempted to adduce further evidence I was informed that it was no longer an issue and this seems to exhibit certain amount of bias. 2. The Tribunal failed to provide adequate opportunity to the Applicant to adduce additional evidence regarding financial capacity and this resulted in miscarriage of justice and has vitiated the procedural fairness. Particulars The Tribunal failed to adjourn the hearing when the applicant requested for some more time to produce the documents relating to financial capacity. This has resulted in denial of opportunity and failure to adhere to the principles of natural justice resulting in miscarriage of justice. 16 It would appear that both the Minister, in his response to Mr Yadagiri's application, and the Tribunal, both at the hearing and in its reasons, took the first ground to amount to an allegation of actual bias on the part of the Tribunal on the ground of prejudgment. There is nothing to suggest that Mr Yadagiri put his case in the Circuit Court in terms of apprehended bias. 17 It is also clear that Mr Yadagiri's case in the Circuit Court depended entirely on inferences that he contended should be drawn from the Tribunal's reasons. He did not tender the transcript of the Tribunal's hearing at the hearing of his application, or adduce any other evidence in support of his claim that the Tribunal was biased. Mr Yadagiri's contention that the Tribunal was biased appeared to based, in particular, on paragraphs [15] and [22] of the Tribunal's reasons. Mr Yadagiri submitted that the Tribunal exhibited bias by asking questions regarding his financial capacity, then, after Mr Yadagiri requested more time to provide relevant evidence, informing him financial capacity was not in issue. 18 The primary judge rejected Mr Yadagiri's contention that the Tribunal's reasons showed that the Tribunal was biased. The primary judge inferred from the Tribunal's reasons that, by the time the Tribunal declined Mr Yadagiri's request for more time to provide evidence of financial capacity, the Tribunal had decided that the applicant did not satisfy the genuine temporary entrant criterion: see judgment at [16]. His Honour found, however, that this did not manifest predetermination by the Tribunal. That was because the Tribunal's reasons also reveal that the Tribunal's findings concerning the genuine temporary entrant criterion were only reached towards the end of the hearing and after the Tribunal had considered Mr Yadagiri's evidence on that topic: see judgment at [18]. 19 As for ground 2 of Mr Yadagiri's application, the primary judge rejected the contention that the Tribunal acted unreasonably or denied Mr Yadagiri procedural fairness in declining to give him more time to supply evidence concerning his financial capacity. As Mr Yadagiri's notice of appeal does not challenge the dismissal of ground 2 of his application, it is unnecessary to detail the primary judge's reasons for so concluding. Appeal grounds and submissions 20 Mr Yadagiri's notice of appeal contains the following single ground of appeal (as drafted): 1. His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error on account of apprehended bias. Particulars The delegate of the Minister refused the visa on the grounds that the appellant did not satisfy the financial criteria as required by Migration regulation 572.223(2). The Tribunal during the course of eliciting evidence asked the appellant as to the matters relating to satisfaction of financial criteria under regulation 572.223. After deposing before the Tribunal regarding the appellant financial capacity, the appellant informed the Tribunal that he readily had documents to substantiate his claim and sought a short time period to produce the documents. At this point the Tribunal Member observed that the documents / evidence are not required as it has already made up its mind. It is respectfully submitted that if this criteria is not required as the Tribunal has already made up its mind then there is no need to elicit evidence regarding this matter. Having elicited the evidence on financial capacity and when the appellant willing and able to satisfy the criteria then the Tribunal states that this is no longer a relevant matter. It is submitted that this observation of the Tribunal leads to the conclusion that it had already predetermined the matter. Where the Tribunal's conduct would indicate to a fair-minded and informed person that the Tribunal might not have brought an impartial mind to bear to the issue to be decided then it amounts to Bias, referring to NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at 268 [14]. In this case the conduct of the Tribunal in first making an enquiry and when evidence is offered to state that it is no longer required amounts to predetermining the issue without a fair procedure being adopted. 21 Mr Yadagiri did not file any written submissions as he was directed to do. The particulars contained in the notice of appeal may, however, be taken to be his written submissions. At the hearing of his appeal, Mr Yadagiri was invited to make any further submissions or present any further arguments in support of his appeal. Mr Yadagiri indicated that he had nothing further to add to what he said in the Circuit Court. Consideration 22 As noted earlier, Mr Yadagiri's case before the primary judge appeared to be that there was actual bias on the part of the Tribunal. That is how both the Minister and the primary judge interpreted ground 1 in the originating application. There is nothing to suggest that Mr Yadagiri put his case in the Circuit Court in terms of apprehended bias. 23 The primary judge was correct to reject the allegation of actual bias on the part of the Tribunal. Actual bias is a serious allegation when levelled against an administrative decision-maker. A finding of actual bias is not lightly drawn and ordinarily requires cogent and unequivocal evidence: see Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123 (per Wilcox J); Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 at 442-443 (per Stone J). 24 The only evidence relied on by Mr Yadagiri was the Tribunal's reasons. He asserted that the reasons demonstrated prejudgment on the part of the Tribunal member. In Mr Yadagiri's submission, prejudgment could be inferred from the fact that the Tribunal raised issues relating to the financial capacity criterion, then declined Mr Yadagiri's request for time to provide further evidence on the basis of a decision that financial capacity was in fact not in issue. 25 Mr Yadagiri's contention that the reasons revealed actual bias on the part of the Tribunal was rightly rejected by the primary judge for the reasons his Honour gave. The Tribunal's reasons reveal no more than that, during the course of the hearing, the Tribunal found that Mr Yadagiri did not meet the genuine temporary entrant criterion. It is, however, quite clear from the Tribunal's reasons that its finding that Mr Yadagiri did not meet the genuine temporary entrant criterion was made towards the end of the hearing and, more importantly, after the Tribunal had considered and addressed Mr Yadagiri's evidence and arguments concerning that criterion. There is accordingly no basis upon which to infer prejudgment on the part of the Tribunal in respect of the genuine temporary entrant criterion. 26 Having made that finding, the Tribunal considered that it was not necessary to make a finding in respect of the financial capacity criterion. That was because, for Mr Yadagiri to be entitled to a Student (Temporary) (Class TU) visa, he was required to satisfy both the genuine temporary entrant criterion and the financial capacity criterion. Since Mr Yadagiri did not meet the genuine temporary entrant criterion, and therefore could not in any event be granted the visa, it was unnecessary to consider his request for further time to provide evidence in relation to the financial capacity criterion. 27 The pragmatic approach that was taken by the Tribunal in respect of Mr Yadagiri's request for further time to provide evidence in relation to the financial capacity criterion was, in all the circumstances, entirely consistent with the Tribunal's statutory objective of providing a mechanism of review that is fair, just, economical, informal and quick. It provides no basis for an inference that the Tribunal prejudged whether Mr Yadagiri met the genuine temporary entrant criterion before hearing his evidence and arguments. Nor does it provide any basis to infer prejudgment in respect of the financial capacity criterion. 28 In his notice of appeal, Mr Yadagiri contended that the primary judge erred in not finding apprehended bias on the part of the Tribunal. The primary judge did not consider or make any findings in relation to apprehended bias. That was because apprehended bias was not asserted or argued before him. Having regard to the way the matter was argued before the primary judge, it could not be found that his Honour erred in not addressing apprehended bias in determining Mr Yadagiri's judicial review application. 29 Nevertheless, as Mr Yadagiri was not legally represented in the Court below, and was not represented on appeal, he should be permitted to raise, as effectively a new ground, that the primary judge should have found apprehended bias on the part of the Tribunal. The Minister's submissions effectively addressed that issue, and there was no prejudice to the Minister in permitting Mr Yadagiri to raise this new ground. 30 Mr Yadagiri's argument concerning apprehended bias, like his claim of actual bias, was based entirely on inferences that were said to flow from the Tribunal's reasons. 31 The test for apprehended bias on the part of the Tribunal is whether a hypothetical, fair-minded lay person, who is properly informed as to the nature of the proceedings, the matters in dispute and the conduct said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not have brought an impartial mind to the question to be decided: Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425 at 434-5, [27]-[28]; 32 Mr Yadagiri's case, in effect, was that the hypothetical observer might apprehend from the Tribunal's reasons that the Tribunal might have prejudged his application. In particular, the hypothetical observer might, in Mr Yadagiri's case, apprehend that the Tribunal might have decided whether Mr Yadagiri met the genuine temporary entry criterion before having heard his evidence or arguments. 33 No such conclusion can be drawn from the Tribunal's reasons. The hypothetical observer would be likely to infer from what occurred at the hearing, as evidenced in the Tribunal's reasons, that the Tribunal only made up its mind concerning the genuine temporary entry criterion after hearing all that Mr Yadagiri had to say on that matter. Having heard Mr Yadagiri's evidence and submissions, the Tribunal decided that Mr Yadagiri did not meet that criterion. As a result, it decided that the financial capacity criterion was not in issue. It was therefore unnecessary to consider Mr Yadagiri's request for time to provide further evidence in relation to that criterion. That sequence would not suggest to the fair-minded observer that the Tribunal might have prejudged any aspect of Mr Yadagiri's case. 34 There is therefore no proper basis upon which a finding of apprehended bias could be made. Conclusion and disposition 35 Mr Yadagiri has accordingly failed to make out his appeal ground. The primary judge was correct to reject Mr Yadagiri's allegation of bias on the part of the Tribunal. There was also no basis upon which the primary judge could or should have found apprehended bias. 36 Mr Yadagiri's appeal must accordingly be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate: Dated: 9 March 2017