FEDERAL COURT OF AUSTRALIA Lamichhane v Minister for Immigration and Border Protection [2019] FCA 776 Appeal from: Lamichhane v Minister for Immigration and Border Protection [2018] FCCA 2118 File number: NSD 1463 of 2018 Judge: FLICK J Date of judgment: 30 May 2019 Catchwords: PRACTICE AND PROCEDURE – application for adjournment – inadequacy in medical certificates – lack of legal representation PRACTICE AND PROCEDURE – ex tempore reasons by primary Judge – not unreasonable in circumstances ADMINISTRATIVE LAW – no reasonable apprehension of bias arising from having previously read materials and providing ex tempore reasons – written submissions filed in advance of hearing – consideration of oral submissions Legislation: Migration Act 1958 (Cth) s 65 Migration Regulations 1994 (Cth) Sch 2, cl 801.221 Cases cited: BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, (2018) 161 ALD 441 Lamichhane v Minister for Immigration and Border Protection [2018] FCCA 2118 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, (2001) 205 CLR 507 MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 Re JRL, Ex parte CJL (1986) 161 CLR 342 SZOPX v Minister for Immigration and Citizenship [2011] FCA 552 Date of hearing: 14 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: DLA Piper Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 1463 of 2018 BETWEEN: DEEPAK LAMICHHANE Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FLICK J DATE OF ORDER: 30 MAY 2019 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the First Respondent, either as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FLICK J: 1 The Appellant in the present proceeding, Mr Deepak Lamichhane, is a national of Nepal. 2 In December 2012, Mr Lamichhane applied for a Partner (Residence) (Class BS) (Subclass 801) visa and Partner (Temporary) (Class UK) (Subclass 820) visa. Mr Lamichhane was granted the Partner (Temporary) visa in December 2013. A delegate of the Minister for Immigration and Border Protection, under s 65 of the Migration Act 1958 (Cth), subsequently refused the application for the Partner (Residence) visa in November 2015. Mr Lamichhane sought review of the delegate's decision by the Administrative Appeals Tribunal (the "Tribunal"). In December 2016, the Tribunal affirmed the delegate's decision. Like the delegate, the Tribunal was not satisfied that Mr Lamichhane and his sponsor were in a genuine spousal relationship. The Tribunal thus concluded that Mr Lamichhane did not meet cl 801.221(2)(c) of Sch 2 to the Migration Regulations 1994 (Cth) (the "Regulations"). Clause 801.221(2)(c), as it then existed, imposed a requirement that an applicant "is the spouse or de facto partner of the sponsoring partner". 3 Judicial review by the Federal Circuit Court of Australia of the Tribunal's decision was then sought. In July 2018, the Federal Circuit Court dismissed that application with costs: Lamichhane v Minister for Immigration and Border Protection [2018] FCCA 2118. Before the Federal Circuit Court, Mr Lamichhane was represented by both solicitors and Counsel. 4 A Notice of Appeal from that decision of the Federal Circuit Court was then filed in this Court in August 2018. The Grounds of Appeal as there sought provide as follows (without alteration): 1. The initial hearing was scheduled to be heard by Judge Manousaridis. His Honour Judge Wilson took over the case within a relatively short period of time before the case was scheduled for hearing. 2. His Honour made jurisdictional error by engaging in merits review. Particulars a) His Honour seemed to have made up his mind to dismiss the application prior to the hearing as he states "I have spent well over seven hours analysing the material in this case." This highlights an apprehension of bias. b) His Honour states "It was undesirable for me to delay in providing the parties with my reasons in this case." 3. His Honour failed to make valid and relevant considerations. 5 The appeal was listed for hearing on 6 February 2019. But on that occasion the interpreter who was to assist Mr Lamichhane did not appear and the hearing was adjourned to 14 February 2019. The hearing proceeded on that date. The Appellant was then assisted by an interpreter. The Respondent Minister appeared by Counsel. The Second Respondent filed a Submitting Notice, save as to costs. The Appellant did not file any written submissions in this proceeding. 6 At the outset of the hearing before this Court, Mr Lamichhane sought an adjournment. That application was refused and the hearing proceeded. Mr Lamichhane during his oral submissions emphasised what he perceived to be a commitment on the part of the primary Judge to views he had apparently formed before coming onto the bench and to the length of the Appellant's relationship with his sponsor and their family relationship. 7 The appeal is to be dismissed with costs. The application for an adjournment 8 The application for an adjournment was understood to have been advanced on two bases, namely, Mr Lamichhane's: desire to secure legal representation; and medical condition. 9 As to the former basis, there is no factual basis for concluding that Mr Lamichhane has not been given an adequate opportunity in advance of the present hearing to secure such legal representation as he saw fit. A submission that he thought until quite recently that the solicitors for the Respondent Minister were in fact his solicitors is denied by a letter dated 7 September 2018. The letter was unequivocal in stating that those solicitors had "received instructions from Department of Home Affairs to act on its behalf in respect of your claim". 10 Nor is there any substance in the submission that Mr Lamichhane's medical condition was such that he could not adequately and properly present his case. That submission is rejected because: the two most recent medical certificates (dated 11 and 13 February 2019) expressed no opinion as to the ability of Mr Lamichhane to participate in a hearing or any opinion that he would be unable because of his medical condition to properly understand and respond to submissions. A further medical certificate, dated 21 January 2019, merely referred to a "medical condition" and the medication prescribed. 11 "Inadequacies" in medical certificates sought to be relied upon by parties in proceedings such as the present have previously attracted criticisms from this Court: e.g. MZAHI v Minister for Immigration and Border Protection [2016] FCA 129 at [7] per Davies J; BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [35] per Thawley J. The form and content of medical certificates obviously enough depends upon the facts and circumstances of each individual case and the expert opinions a medical practitioner is prepared to express. Those certificates which may provide the best assistance to judges nevertheless are those which express opinions directed to the ability of a party to meaningfully participate in a judicial hearing and whether there are any steps which can be taken by a presiding Judge to address the practitioner's concerns. 12 As events turned out, it emerged during the course of his oral submissions to this Court that Mr Lamichhane: had little difficulty in putting such oral submissions as he wished to make and, more importantly, little difficulty in explaining the basis upon which he maintained that the primary Judge had not properly heard his case. The Grounds of Appeal 13 The Notice of Appeal sets out three Grounds of Appeal. However, it is only Ground 2 which warrants any real consideration. Ground 1, other than perhaps providing reason to question the manner in which the primary Judge disposed of the proceeding as sought to be exposed in Ground 2, is nothing other than a statement as to the identification of the Judge who decided the case. There is nothing exceptional in one Judge giving directions to prepare a case for hearing and a different Judge conducting the hearing itself. Ground 1 must fail. Ground 3 fails to identify the "relevant consideration" which Mr Lamichhane claims the primary Judge did not "make" and consequently no error by the primary Judge is shown in Ground 3. 14 Ground 2 is curiously expressed. In many cases it is the visa claimant who impermissibly seeks to propel a court undertaking judicial review into a consideration of the factual merits of the claims made, as opposed to the more constrained task of reviewing whether an administrative decision has been made in accordance with law. But that curiosity may be left to one side. Whether it be a visa claimant or the Minister who makes the submission, the task of the Federal Circuit Court is confined to one of determining legal error and does not extend to a review of the factual merits of the Tribunal's decision. 15 The gist of the argument sought to be advanced in Ground 2 is that there was a reasonable apprehension of bias that the primary Judge did not approach the task of decision-making with a mind open to persuasion. Such an argument, it has long been recognised, must be "firmly established": Re JRL, Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. "The question" to be resolved, it is to be recalled, "is not whether a decision-maker's mind is blank; it is whether it is open to persuasion": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [71], (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J. 16 The two matters relied upon by Mr Lamichhane are those set forth in the particulars of Ground 2 of the Notice of Appeal. The first being that the primary Judge came to the hearing having already decided the outcome. And, the second being the statement from the primary Judge that is was "undesirable" to "delay" providing reasons in that proceeding. 17 But neither of those matters provide any basis of, let alone "firmly establish[es]", any reasonable apprehension of bias. 18 Rather than the first particular evidencing an apprehension of bias, all that is exposed is that the primary Judge spent some considerable time reading the materials which had been filed in the Federal Circuit Court before he came onto the bench. Such a course should be encouraged rather than providing a platform for impugning a decision thereafter made. A judicial familiarity, prior to the commencement of a hearing, with the issues involved in a proceeding and the evidential basis to be relied upon only facilitates an expeditious disposition of a proceeding. What may provide room for argument is a situation in which a judicial decision-maker has become so immersed in the materials that have previously been filed in Court that there thereafter remains an unwillingness – or an apparent unwillingness – to entertain submissions during the hearing itself and to alter any preliminary state of mind that may have been formed. But that is not the present situation. 19 The second particular is merely an expression of the assessment made by the primary Judge that the outcome of the proceeding was such that he could immediately proceed to provide reasons. 20 Both of the two comments made by the primary Judge as set forth in Ground 2, in any event, need to be read in context. Very much to the fore of that context is the fact that both Mr Lamichhane and the Respondent Minister were then represented by Counsel and both had filed written submissions in advance of the hearing. The comments made by the primary Judge were thus an expression of an opinion founded in part after having read the submissions which had been filed on behalf of Mr Lamichhane. The ex tempore reasons provided by the primary Judge expressly address the written submissions made by Counsel on behalf of Mr Lamichhane. More tellingly, and denying any proposition that the primary Judge did not have a mind open to persuasion when he came onto the bench, is that the reasons for decision expressly refer to – and seek to engage with – the oral submissions advanced on behalf of Mr Lamichhane during the course of the hearing. Those reasons thus refer to: the attempt by the primary Judge "to divine some logical threads to the presentation by the applicant's counsel of his submissions" and the "points" emerging: [2018] FCCA 2118 at [39]; the submission made by Mr Lamichhane's then Counsel "that extreme illogicality existed here": [2018] FCCA 2118 at [41]; and an expressions of appreciation "to counsel for their excellent verbal presentation of this case": [2018] FCCA 2118 at [63]. The hearing before the primary Judge, Counsel for the Respondent Minister informed the Court, took some 2 ½ hours. No argument could prevail that the primary Judge had reached any conclusion, or even any preliminary conclusion, without having entertained and taken into account the submissions made – both prior to and during the course of the hearing. The length of the hearing also provides some indication of the extent to which oral submissions were developed during the course of the hearing. Nor does anything in the ex tempore reasons expose anything other than proper consideration being given to each of the grounds of review previously relied upon. Those reasons expose a consideration of (inter alia) both the reasons provided by the Tribunal and the transcript of the hearing before the Tribunal. The reasons of the primary Judge thus expose a detailed consideration of the materials that had previously been filed as well as consideration of the oral submissions made by counsel at the hearing. 21 Although reservation may be expressed as to the prudence of providing ex tempore reasons (e.g. SZOPX v Minister for Immigration and Citizenship [2011] FCA 552 at [19] per Flick J), in an appropriate case such a course of proceeding considerably facilitates the disposition of cases in a Court facing an overwhelming workload. The primary Judge, moreover, was fully conscious of the criticisms which have been expressed in decisions of this Court as to the content of ex tempore reasons given in particular cases. The primary Judge thus expressly referred ([2018] FCCA 2118 at [61]) to the observations of the Full Court in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, (2018) 161 ALD 441. Unlike some other cases, the detailed reasons provided by the primary Judge in the present case – it may be observed – provide considerable comfort in concluding that the present case has been properly considered by a judge whose mind was properly open to persuasion. The filing of written submissions in advance of a hearing considerably assisted in the expeditious disposition of this case by way of an ex tempore judgment. 22 There is no basis for the argument now advanced before this Court that there was a reasonable apprehension of bias on the part of the primary Judge. Ground 2 is rejected. CONCLUSIONS 23 No Ground of Appeal has been made out. The appeal is to be dismissed. 24 There is no reason why costs should not follow the event. THE ORDERS OF THE COURT ARE: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the First Respondent, either as agreed or assessed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 30 May 2019