Kamal Raj v Minister for Immigration & Multicultural Affairs [2000] FCA 74 (10 February 2000)

Last Updated: 15 February 2000

FEDERAL COURT OF AUSTRALIA

Kamal Raj v Minister for Immigration & Multicultural Affairs [2000] FCA 74

MIGRATION - application for judicial review of a decision of the Migration Review Tribunal to refuse to grant the applicant a visa as a "special need relative"

JURISDICTION - whether the Court had jurisdiction to entertain the application under s 478(1)(b) of the Migration Act 1958 (Cth) - whether the application for judicial review had been lodged with a Registry of the Court within twenty-eight days of the applicant being notified of the decision of which review was sought - whether the Tribunal had made a "decision" to affirm the decision under review within the meaning of s 349(2)(a) of the Migration Act 1958 (Cth) - whether that decision was "given orally" or "handed down" in the manner required by s 368 of the Migration Act 1958 (Cth) - whether the applicant was "notified" of the decision in the manner required by s 368 of the Migration Act 1958 (Cth)

GROUNDS FOR SEEKING JUDICIAL REVIEW - whether the decision of the Tribunal was affected by actual bias within the meaning of s 476(1)(f) of the Migration Act 1958 (Cth) - assessment by the Tribunal of the relevance of a psychologist's report - reference by the presiding member to circumstances affecting a member of her family - scepticism and impatience on the part of the presiding member

WORDS AND PHRASES - "decision"

Migration Act 1958 (Cth) ss 349(2), 368, 368A, 368B, 368C, 368D, 379A, 476(1)(f), 478(1)(b)

Migration Regulations 1994 (Cth) reg 1.03

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 referred to

Tuamoheloa v Minister for Immigration and Multicultural Affairs (Heerey J, 4 November 1998, unreported) referred to

Minister for Immigration v Teo (1995) 57 FCR 194 referred to

Huang v Minister for Immigration (1996) 71 FCR 95 referred to

Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951 applied

KAMAL RAJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1104 OF 1999

LEHANE J

10 FEBRUARY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1104 OF 1999

BETWEEN:	KAMAL RAJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEHANE J
DATE OF ORDER:	10 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

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 1104 OF 1999

BETWEEN:	KAMAL RAJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEHANE J
DATE:	10 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant seeks review of a decision of the Migration Review Tribunal. By its decision the Tribunal affirmed a decision of a delegate of the Minister, made on 26 May 1999, to refuse to grant the applicant an AG Change in Circumstances (Residence) (Subclass 806 Family) Visa.

2 A visa of that kind might be granted to the applicant only if the Minister (or the Tribunal, on review) were satisfied that the criteria prescribed by the Migration Act 1958 and the Migration Regulations had been satisfied (Migration Act s 65(1)). The applicant would have satisfied the criteria for the visa for which he applied if he were a "special need relative" of a settled Australian permanent resident, usually resident in Australia, who had nominated the applicant for the grant of the visa. That was the basis on which the applicant claimed to be eligible for the visa. He was nominated by Kaka Ram (also known as Karan Singh - I shall refer to him as Mr Karan Singh), whose special need relative he claimed to be. "Special need relative" was defined in reg 1.03 of the Migration Regulations as follows:

" `Special need relative' in relation to ... an Australian permanent resident usually resident in Australia ... means a relative who is willing and able to provide substantial and continuing assistance to the ... resident if:

(a) the ... resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the ... resident personally, or a member of his or her family unit; and

(b) the assistance cannot reasonably be obtained from:

(i) any other relative of the ... resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii) welfare, hospital, nursing or community services in Australia."

3 Neither the delegate of the Minister nor the Tribunal was satisfied that the applicant, in relation to Mr Karan Singh, met the requirements of that definition.

Application for Judicial Review; Grounds; Issues

4 The applicant filed his application for judicial review on 27 September 1999. By his further amended application, filed on 22 December 1999, he specifies error of law (Migration Act s 476(1)(e)) and actual bias (s 476(1)(f)) as the grounds on which he seeks review. The error of law asserted is what is said to have been the Tribunal's rejection of a psychologist's report as irrelevant. It was made clear, however, during oral submissions that the substantial case which the applicant sought to make was that the decision of the Tribunal was affected by actual bias and that the circumstances in which, and the way in which, the Tribunal dealt with the psychologist's report were relied on as one of a number of matters which, it was said, demonstrated that the Tribunal member had applied "a test or standard derived from her personal circumstances" and had entered upon the hearing with her mind irrevocably made up as to the outcome of the application. I shall return to that claim. It is one of the two substantial live issues in the case.

5 The other - and prior - issue goes to the jurisdiction of the Court to entertain the application for judicial review. The Minister contends that the Court lacks jurisdiction to entertain the application because it was not lodged with a registry of the Court within twenty-eight days of the applicant being notified of the Tribunal's decision (Migration Act s 478(1)(b)). The Minister filed a notice of objection to competency on 20 January 2000. That was well outside the time within which O 54B r 3 of the Federal Court Rules requires such a notice to be filed. It is clear, however, and not in controversy, that I must deal with the question of the Court's jurisdiction.

Jurisdiction: was the application filed within time?

6 The application for judicial review is made in reliance on Pt 8 of the Migration Act. Section 478 provides that such an application must be lodged with a Registry of the Court within twenty-eight days of the applicant being notified of the decision of which review is sought and that the Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside that period.

7 Except in the case of certain applicants who are in immigration detention (the present applicant is not in immigration detention), a decision of the Tribunal, on a review, may be "given orally" or may be "handed down" (s 368B). If the Tribunal gives its decision orally, the applicant is taken to be notified of it on the day when it is made (s 368D(1)). If the Tribunal proposes to hand down its decision, it must invite the applicant (and the Secretary) to be present when the decision is handed down (s 368A). The decision may then be handed down whether or not either or both of the applicant and the Secretary are present (s 368B(3)). If a representative of the applicant is present, the applicant is taken to be present (s 368B(9)) and the applicant is taken to be notified of the decision on the day on which it is handed down (s 368C(1). Although the Migration Act does not say so expressly, it must be the case that, if the applicant is present in person when the decision is handed down, the applicant is taken to be notified of the decision at that time.

8 If the applicant is not present, personally or by a representative, when the decision is handed down, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under s 368(1) (a provision to which I shall return) (s 368B(6)). That obligation is satisfied if a copy is given to the applicant's representative (s 368C(2)). The copy must be given within fourteen days after the day on which the decision is handed down (s 368B(6)). The methods by which it may be sent or given are provided for in s 379A; the effect of that provision is that the applicant is taken to be notified when the statement is sent or given by one of the specified methods.

9 Section 368(1) provides:

"Where the Tribunal makes its decision on a review, the Tribunal must, ... prepare a written statement that:

(a) sets out the decision of the Tribunal on the review;

(b) sets out the reasons for the decision;

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based."

10 Where an oral decision is given the Tribunal must give the applicant and the Secretary a copy of the statement prepared under s 368(1) within fourteen days after the decision is made (s 368D(1)); but, as I have already mentioned, the applicant is taken to be notified of the decision on the day on which the decision is made. Plainly enough, the legislation contemplates - though it does not expressly provide - that an oral decision is given where the Tribunal announces its decision at the conclusion of a hearing. Giving a decision orally must involve its communication at least to the applicant and must therefore, I think, require its announcement on an occasion when the applicant is present: and presence, no doubt, may include presence by a representative.

11 Before I turn to what happened in this case, I shall refer to one other component of the legislative scheme. Section 349 specifies the powers of the Tribunal on a review and, particularly, in subs (2), the decisions which it may make. That subsection provides:

"The Tribunal may:

(a) affirm the decision; or

(b) vary the decision; or

(c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d) set the decision aside and substitute a new decision."

12 The Minister contends that in this case the Tribunal gave an oral decision at the conclusion of a hearing of the application for review. The applicant contends that the Tribunal did not give an oral decision. It is common ground that if the Minister is right the application for judicial review was lodged outside the time permitted by s 478 and that the Court lacks jurisdiction to deal with it. Additionally, if the Tribunal did not give an oral decision, it certainly did not "hand down" a decision in the manner required by the Migration Act. Thus, if I were to come to the conclusion that the Tribunal did not give an oral decision, a question would arise whether the Tribunal had made, or "given", a decision at all or whether, perhaps, although a decision had been made, the applicant is yet to be notified of it. As will become clear when I examine the circumstances, the case demonstrates one thing very clearly: if the Tribunal intends to give an oral decision at a hearing, it is important that it make plain that that is what it is doing and that it state its decision (being one of those, of course, which the Migration Act authorises it to make) in unmistakable terms. It is equally desirable that the applicant be informed, then and there, of the existence of the right to seek judicial review and of the limited time within which it may be sought.

13 The Tribunal conducted a hearing of the applicant's application for review of the primary decision of the Minister's delegate on 25 August 1999. The applicant was present, as were a migration agent who acted for him, an interpreter and three other persons who were there to give evidence, including Mr Karan Singh and his wife, Mrs Kaur. The transcript of the hearing is in evidence. There was an extended discussion between the presiding member, the applicant and witnesses (through the interpreter) and the migration agent concerning the applicant's claims to meet the various criteria for the visa. The discussion turned to the question whether the applicant was a "special need relative" of Mr Karan Singh and particularly whether Mr Karan Singh had "a permanent or long-term need for assistance because of ... disability, prolonged illness or other serious circumstances" affecting him or a member of his family unit (particularly Mrs Kaur, who claimed to have serious and continuing back problems as a result of which she was unable fully to look after her children). After that discussion had continued for a time, the presiding member said:

"Yes, I know, but how does an ordinary Australian person cope with that situation? I am afraid that I have to agree with the primary decision. I really do not feel - you might put this to the applicant."

14 The applicant (or the migration agent) asked for more time to submit further medical evidence. After expressing some scepticism about whether any purpose would be served by an adjournment, the presiding member said:

"Yes, one week and that is it and it is until next Wednesday which is the 1^st of 9^th and that is it. It does mean that somebody has to come back for the handing down."

15 Further discussion ensued in which the migration agent sought a longer adjournment. The presiding member expressed reluctance to extend the adjournment, having regard to the length of time which had already been available to the applicant to prepare his case. The following exchange then occurred:

"MEMBER: If we make it a fortnight, it will be the 8^th of the 9^th.

MIGRATION AGENT: May we request a letter from the Tribunal, ma'am, because the HSA will not give an urgent assessment unless there is a proper letter from the authorities.

MEMBER: Actually, look, with the greatest of respect, I think before I grant this adjournment, I am going to ask you what you hope to achieve by further delay. I cannot see how you are ever going to succeed. I will ask the solicitor [sic]. He does not have a right to speak, but in this case I am asking him because I am actually reluctant to give the adjournment. Would you please, before I grant the adjournment, explain to me how you are likely to satisfy the Tribunal that he in fact qualifies as a special need relative. Firstly that Mrs Kaur has got this long term need for assistance, and secondly that there is nothing else in the Australian community that can care for her."

Discussion followed about that, after which the presiding member said:

"Okay. Well, I have made my decision and I have decided against the adjournment. I do not believe that there is this long term need for assistance because of Mrs Kaur's disability and I am not giving an adjournment."

There was then a further brief exchange about the plight of Mr Karan Singh's family should the applicant not be allowed to remain in Australia. That exchange was brought to an end by the following statement of the presiding member:

"I now will declare the matter closed and I have made my decision and my decision is she [sic] does not qualify as a special need relative."

16 The hearing then concluded.

17 The Tribunal prepared a written statement as required by s 368. The statement said - mistakenly - that the date of the decision was 24 August 1999 and that it had been delivered on that date. In fact, the hearing took place on 25 August. The letter to the applicant enclosing the statement was dated 3 September. It described its enclosure as "a copy of the Tribunal's decision on your application for review". It informed the applicant that he might have rights of appeal and suggested that he seek advice. It concluded:

"There are strict requirements attached to appeal rights. For example, an appeal to the Federal Court under Part 8 must be lodged within 28 days of the notification of a decision. If you intend to seek advice about your appeal rights or to exercise any appeal right you should ensure that you do so as to be within any time limit."

18 That was not, perhaps, as clear as it might have been. The applicant might well be excused for thinking that the "notification", which marked the commencement of the period within which he had the right to seek judicial review, happened when he received the letter, not either when the presiding member had announced her conclusion or the letter had been despatched.

19 Two other documents on the Tribunal's file were referred to in argument on this aspect of the case. The first of these is described as a hearing record which appears to comprise a summary of what occurred during the hearing with cross references to the "counter" on the tape recorder. That document records the refusal of the adjournment and part of the ensuing discussion but not the presiding member's concluding statement. Secondly, there is a document called a "Finalisation Summary". It records, among other things, the hearing date (25 August 1999), the "IRT decision date" (3 September 1999) and the date of notification of that decision (3 September 1999). That reveals at least a degree of error or confusion. But I do not think that either of those two documents assists in answering the question whether, when she made her concluding statement, the presiding member gave an oral decision on the application before her.

20 The solicitor for the applicant suggested, relying on a dictionary definition, that what the presiding member said did not amount to a decision because a decision is, usually at least, a reasoned determination in the sense that it will be accompanied, or preceded, by the decision-maker's reasons. In the statutory context, however, that is not a requirement. The Migration Act in terms contemplates that, if an oral decision is given, a statement of (among other things) the reasons will later be prepared and given to the applicant. The question is whether what the presiding member said amounted to a statement of a decision to affirm the decision under review (a decision authorised by s 349(2)(a) of the Migration Act and the decision recorded in the s 369 statement) or something falling short of that.

21 The applicant's solicitor submitted that what the presiding member said should be taken, in context, as an expression of the view which she was then inclined to take rather than a final determination. Secondly, he submitted that the statement was not a final decision on the application, of a kind authorised by the Migration Act, but simply "a step taken in the course of reasoning on the way to the making of the ultimate decision" (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 336 per Mason CJ).

22 To the extent that the course of the hearing, particularly the latter part of it, was apt to give rise to confusion in the mind of the applicant, and possibly his adviser, I have some sympathy with the first submission. Nevertheless, I do not accept it. The sequence of events was that the presiding member formed a view adverse to the application ("I am afraid that I have to agree with the primary decision"). She put that view to the applicant. It prompted a request for an adjournment. An adjournment for one week was granted. A longer adjournment was sought; and the presiding member seemed inclined to grant it ("If we make it a fortnight it will be the 8^th of the 9^th"). She then made it clear that she had second thoughts ("Actually, look, with the greatest of respect, I think before I grant this adjournment, I am going to ask you what you hope to achieve by further delay"). Attempts were made to provide an explanation which the presiding member found unconvincing. Having reconsidered the matter, she declined the request for an adjournment ("Well, I have made my decision and I have decided against the adjournment. I do not believe that there is this long term need for assistance ... and I am not giving an adjournment"). The ensuing brief discussion did not lead to any change of mind. The presiding member's concluding statement had all the hallmarks of finality and no hint of tentativeness ("I will now declare the matter closed and I have made my decision and my decision is she [sic] does not qualify as a special need relative").

23 The second submission raises questions which, in my view, are much more finely balanced. The presiding member did not state, in terms, the decision authorised by s 349(2) to which her conclusion led. But the visa for which the applicant had applied must be refused unless the criteria were met. If the applicant was not a special need relative of Mr Karan Singh, then the criteria were not met. That being so, there could be only one result of the application for review, that is that the primary decision was affirmed. The hearing proceeded on the footing that whether the applicant fell within the defined term "special need relative" was the only substantial question to be decided. The questions, answers and discussion during the hearing, as well as the material submitted on behalf of the applicant, were all directed to the various elements of that definition. In making the pronouncement which she did, the presiding member plainly intended to make a final determination of the one substantive issue before her, the determination of which would dictate the result of the review. In the circumstances, to decide that "she" (and I do not think that the verbal slip or, it may be, mistranscription matters) was not a special need relative was to decide that the primary decision was to be affirmed. One necessarily followed from the other. There is much to be said for the submission of counsel for the Minister, that the giving of an oral decision on a review by the Tribunal does not require literal adherence to a verbal formula, so that if the Tribunal at the conclusion of a hearing makes a pronouncement which, though not in the precise terms of any of the paragraphs of s 349(2), conveys the substance of a decision authorised by that provision, then the Tribunal has given (and notified) a decision on the review.

24 There is, on the other hand, force in the contention that, in the context of proceedings with very significant consequences for persons who may well not be particularly proficient in English, and who frequently will not be assisted by a person with a precise understanding of the provisions of the Migration Act, a construction should not readily be adopted to the effect that near enough is good enough. Precise verbal compliance with the terms of s 349(2) may not be required. For example, the announcement of a decision to uphold, rather than "affirm", a primary decision would plainly be sufficient; equally, if the Tribunal intended to make an order contemplated by s 349(2)(d), no doubt it would be sufficient to announce that a specified decision was substituted for a primary decision even if the Tribunal did not in terms say that the primary decision was "set aside". But, by analogy with proceedings in Court, to make an ultimate finding of fact which will inevitably result in particular final orders is not the same thing as to make final orders disposing of the proceedings. Similarly, to find that an applicant does not meet the criteria for a visa is not the same thing as to make the operative decision that the visa be refused. One may inevitably lead to the other; but they are distinct steps and the process is not complete until the second of them has been taken.

25 In the end, after some hesitation and with some regret, I have come to the conclusion that the submission on behalf of the Minister is correct. The analogy between proceedings in Court and administrative review proceedings before a Tribunal is, I think, imperfect. The correct approach, I think, is to ask whether the Tribunal has made clear the substance of what it intended. The presiding member commenced with a strong, though not final, statement of agreement with the primary decision-maker. After further discussions she made it clear that she had come to a firm view. The matter was "closed". She had made "my decision", plainly intended as a decision on the review, not merely as a finding of fact on the way to such a decision. The decision was that "she does not qualify as a special need relative". In context it would have added nothing of substance to append to that pronouncement, "that is to say, the application fails" or "that is to say, the primary decision is affirmed". It would, I think, have been better had the Tribunal used the statutory language. It would certainly have been desirable to tell the applicant that a decision had been made and that the limited time within which he had the right to lodge an application for judicial review had commenced (there is no evidence of whether anything of that nature was said to him outside the hearing). But in my view the Tribunal gave an oral decision on the review; it follows that the applicant, being present, was notified of the decision at that time; it follows that the application for judicial review was lodged out of time and that it must be dismissed for want of jurisdiction.

26 If I were wrong in my view that the Tribunal gave an oral decision on the review, there would nevertheless be a question whether the Court could, at this stage, entertain an application for judicial review. Although the Tribunal (on that hypothesis) did not give an oral decision, apparently it did, nevertheless, proceed to "make" a decision: it prepared a written statement setting out the decision and its reasons for making it, something that it is required to do where it "makes" a decision. But if a decision is not given orally, it must be "handed down"; and that has not been done. And the date of a decision (s 368B(4)) is the date on which it is handed down. Perhaps - the legislation in this respect is not clear - there is no operative decision where it has not been handed down, as required, and consequently does not yet have a date. Nor, apparently, has the applicant been notified of a decision in the manner required by the Migration Act: notification takes place at, or following, handing down; and the time for lodgement of an application for judicial review runs from "the applicant being notified of the decision" (s 478).

27 There is, at best, an ambiguity about a matter which is of great importance to an applicant's rights. Its presence emphasises the importance of careful compliance by the Tribunal with the provisions of the legislation as to the ways in which it is to make known its decisions. The terms of the notification provisions prompt a further comment. As I have mentioned, s 368D requires the Tribunal, where it has given an oral decision, to "give" the applicant and the Secretary a copy of the s 368 statement within fourteen days after the decision is made. But it is not immediately clear how that copy is to be "given". It is not one of the documents referred to in s 379A(3) (particularly - see s 379A(3)(c) - it is not a statement given under s 368B(6)) and therefore taken to be given when despatched by one of the methods specified in s 379A. It is possible - I have not made a detailed search and no argument was directed to this - that there is some other, more general, provision which would apply. It is clear at least (s 368D) that in the case of an oral decision time runs from the moment it is pronounced even though, at that stage, no statement of reasons will have been given. It is clear also that such a statement must be "given". It is less clear how that is to be done.

Merits of the Application: alleged bias

28 Because the question of jurisdiction seemed to be less than completely clear I heard argument on the merits of the application. Both parties assented to that course. Equally, I think it is appropriate that I express my views on the matters which were argued. In order to do so it is necessary to describe in a little more detail the nature of the claims made by the applicant, the course of the hearing before the Tribunal and the Tribunal's reasons for decision.

29 In his application for the visa, which was dated 9 July 1998, the applicant described Mr Karan Singh as his brother and Mrs Kaur as his sister-in-law. He described the circumstances which had led to his relatives needing his assistance as:

"1. Medical condition

2. Operation.

3. Situations of the children."

30 He described the assistance he provided as household assistance and emotional and psychological support. He claimed that other twenty-four hour help was not available. In support of his application the applicant lodged a statutory declaration of Mr Karan Singh, in which he described the applicant as his "cousin brother". Mr Karan Singh did not give any further details of his precise family relationship with the applicant but stated that he had lost his parents when he was twelve years old and that the applicant had cared for him and given him emotional and psychological support since them. He said that Mrs Kaur had undergone a series of operations due to a back problem and that he had two children to look after; that he and Mrs Kaur had been traumatised due to her medical condition and that they had no one to provide support other than the applicant; and the applicant, to whom the family was closely attached, provided "great assistance, both emotional, physical and psychological support".

31 On 28 May 1999 a delegate of the Minister decided to refuse the application. She did so on the basis that a cousin was not a "relative" for the purposes of the definition of "special need relative".

32 The applicant provided no further details or evidence with his application, dated 31 May 1999, for review by the Tribunal. On 20 July 1999 the Tribunal invited the applicant to appear at a hearing on Wednesday, 25 August 1999. On 23 July 1999 the applicant completed a form of request for hearing confirming that he wished to appear before the Tribunal, stating that he required an interpreter and nominating three people from whom the Tribunal was requested to take oral evidence, including Mr Karan Singh and Mrs Kaur.

33 On 12 August 1999 Mr Karan Singh wrote to the Tribunal asking for an adjournment for six to eight weeks, on the basis that the family was obtaining an "analysis" from a "psychiatrist". There is no evidence that the Tribunal replied to that letter. Then on 24 August 1999, the day before the hearing date, the applicant's migration agent submitted to the Tribunal a report from a psychologist, certain medical records, quotations received from various agencies as to their charges for providing family support services and a further statutory declaration of Mr Karan Singh "confirming the relationship". The medical records, which related to Mrs Kaur, commenced with a letter dated 11 August 1997 from a radiologist and concluded with a summary prepared upon Mrs Kaur's discharge from hospital, on 1 February 1998, after an operation on her back. That document indicated that she had suffered no complications; that she had been discharged to her home; and that the outcome of the operation was that she was "well" (rather than "disabled but independent", "dependent" or "bedridden"). The psychologist's report, to which I shall return, referred to some additional medical information which the psychologist claimed to have seen; none of that, however, was given to the Tribunal, although the Tribunal apparently did have a later report dated 27 August 1999 by Dr B S Chung to the effect that Mrs Kaur suffered from back pain and hypertension (that report is referred to in the Tribunal's reasons and comments made by the presiding member during the hearing reflect its contents; for some reason, however, it was not included among the documents provided to the Court).

34 Despite the basis on which the delegate had refused the primary application, Mr Karan Singh's declaration, after stating that he was a permanent resident, said only this:

"4. I am the son of [the applicant] who has been referred to as `Sautela Pita' in the Language Hindi which means `step father'.

5. [The applicant] is the one and only person who has been my carer, God father, mentor guide offering the parental care ever since the death of my father.

6. At the time of my marriage [the applicant] took over the role of the deceased father of mine and fulfilled the religious ceremony as per Hindu tradition.

7. [The applicant] filled up the vacuum in my life and offered the emotional and psychological support and care for my wife and children.

8. The nomination therefore represents my interests and the interests of my wife and two children. The application not only represents my interests but also our emotional, physical, psychological wellbeing."

Bearing in mind that the applicant was advised by a migration agent, in my view a comment made by counsel for the Minister, that the application was not well prepared, was justified. Nor, given the nature of the information before the Tribunal, do I think it is at all surprising that the Tribunal had some difficulty in understanding precisely what the relationship between the applicant and Mr Karan Singh was said to be and exactly what was claimed to be the "special need" which he satisfied.

35 Thus, during the early part of the hearing, the presiding member ascertained that the reference to "cousin brother" had been a mistake and that, according to the applicant and Mr Karan Singh, the applicant was the brother of Mr Karan Singh's late father (though, as the presiding member pointed out both during the hearing and in the Tribunal's reasons, there was no documentary evidence of the relationship). Then, it was said, Mrs Kaur was Mr Karan Singh's wife: in the community to which the parties belonged there was nothing unusual in wife and husband having different names (and, of course, there is no reason to doubt that that is so, though, as the presiding member pointed out, no documentary evidence of the marriage was produced, again despite the fact that the primary application had failed on the ground that a relationship of the requisite kind had not been made out). The questioning then turned to the subject of special need and, briefly, to the question whether assistance could reasonably be obtained from welfare, hospital, nursing or community services in Australia. Undoubtedly the presiding member showed, in relation to the question of special need, a substantial degree of scepticism about whether the circumstances alleged were shown to be either permanent or long-term or sufficiently serious to permit the Tribunal to be satisfied that the criteria for the visa had been met.

36 It is in the course of the discussions about special need, and particularly about Mrs Kaur's claimed disability, that the presiding member is said to have exhibited actual bias. Bias is said to have been shown, first, in the presiding member's treatment of the psychologist's report which was tendered. The report, which is reasonably lengthy, recounts a consultation with the applicant, Mr Karan Singh, Mrs Kaur and their two children, boys aged six and four. Under the heading "report of injury" the psychologist recounted what the family members said during the consultation:

"In January 1998 Mrs Kalwant Kaur slipped while walking along the street and damaged her back which caused extreme pain. According to the medical report she suffered a lower prolapsed disc. Mr Karan Singh took two months leave from work to look after his wife and children.

When it became necessary for Mrs Kalwant Kaur to have an operation (a discectomy) to help with the back condition, [the applicant] arrived in Australia in late January 1998, on a Vistors Visa to help the family manage the children and support both parents during this difficult time. It was anticipated that he would return to India after 3 to 6 months believing that Ms Kalwant Kaur would be recovered after her time of convalescence.

Unfortunately, explained [Mrs Kaur], she has not recovered well despite the back operation and is still in physical discomfort most of the time with her movements severely restricted. Recent medical examination (July 1999) describes:

`Mild scolio rotation to the left'

`Mild degenerative changes at L1/2 with osteophytosis'

`L5/S1 disc space narrowing. Lumbarisation of the transverse processes of S1 and a transitional S1/S2 segment.'

(copied from medical reports given)."

The report proceeds to recount that Mr Karan Singh was working and studying to support the family and was not available to help with household tasks or caring for the children; Mrs Kaur was limited by back pain, and inability to bend, in what she could do both for the children and with household chores; and the applicant did what Mrs Kaur could not do. After further discussion of the effect of Mrs Kaur's injury, the family circumstances and the role played by the applicant, the psychologist concluded:

"It is the opinion of this psychologist that if [the applicant] were no longer living with and part of the family group in which they are currently living, there would more than likely be detrimental emotional and psychological effects on the two young children, particularly as a result of the lack of coping ability of Mrs Kalwant Kaur. It is more than likely that since the `grandparent' is the main male carer for these children and thus close emotional attachments and dependencies have been made, that separation anxiety also could be expected which would effect their overall sense of well being and be detrimental to their developmental progress.

It is recommended that in the best interest of the two children ... [the applicant] be able to continue to maintain his attachment to the young family and continue to care for them physically and emotionally as he has since Mrs Kalwant Kaur's injury. That is that due consideration be given to the application of the Subclass family visa application with the Department of Immigration and Multicultural Affairs on the basis of the Special Need Relative Category."

37 The presiding member introduced the question of special need with this observation:

"Well, with the greatest of respect, even assuming that he qualifies as a relative, as a nephew, I cannot find any evidence of any need for long term assistance by anybody. So if you like, because it is a confusing application, you may wish to clarify for me. You know, where is the severe disability? Having a discectomy is hardly a long lasting permanent longstanding disability that is going to require this special care. It is very confusing because stacks of it seems to be about looking after children."

38 The migration agent then referred the presiding member to the psychologist's report. The presiding member said:

"Yes, I know, but that is all about looking after children and that certainly does not qualify. It is totally irrelevant. Well, unless you can enlighten me, I can see absolutely no evidence of any - I cannot find any evidence that satisfies regulation 806213A [sic]. I cannot find anybody who requires long - I will repeat it - long term need for assistance because of death, disability, prolonged illness or other serious circumstances. I find no evidence to support that. ..."

39 The submission on behalf of the applicant was that the Tribunal member exhibited bias by simply brushing the report aside as irrelevant, whereas if she had considered it more carefully she would have seen that it referred in some detail to Mrs Kaur's condition and the circumstances of the family resulting from it. But I do not think that that is right. I shall return to what is required in order to make out a charge of actual bias. What I think the presiding member's comments about the report show, as later discussion during the hearing and the Tribunal's statement of its reasons make clear, is that she had two substantial concerns. One was that the applicant could not be regarded as a special need relative simply on the basis that he supplied particular emotional needs of the children, the matter to which the concluding paragraphs of the report were substantially directed (Tuamoheloa v Minister for Immigration and Multicultural Affairs, FCA, Heerey J, 4 November 1998 unreported, following Minister for Immigration v Teo (1995) 57 FCR 194 and Huang v Minister for Immigration (1996) 71 FCR 95). The other was that the material which the Tribunal had before it did not appear to satisfy the requirement that the disability or condition relied on be of a serious and, particularly, permanent or long-term nature. The Tribunal was entitled, I think, to take the view that the second hand information in the psychologist's report did not cover that aspect of the criteria and that it was left equally unresolved by the other documents which had been given to the Tribunal. I should add - having regard to the way in which the grounds of the application are expressed - that it is implicit in what I have just written that the treatment of the psychologist's report not only does not, of itself, indicate bias but also involves no error of law.

40 The other matters relied on in support of the ground of actual bias arise from a series of comments made by the presiding member during the hearing. Before coming to those, it is important to recall what the test of actual bias is. It is sufficient to quote a passage from the judgment of RD Nicholson J in Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951 at 157:

"The ground of jurisdiction based on actual bias provided for in s 476(1)(f) has been considered in a number of authorities to which the Court was referred and from which it is not necessary to make extensive citation here. The paragraph was considered by the Full Court in Sun Zhan Qui [v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 505]. Wilcox J at 551 accepted actual bias involved a disposition to "approach the issues in the case otherwise than with an impartial and unprejudiced mind: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352." He pointed out it is common for judges to formulate propositions for the purpose of enabling their correctness to be tested: Re R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 264. He continued:

`... Lindgren J referred to a comment by North J in Wannakuwattewa v Minister for Immigration and Ethnic Affairs (Fed C of A, North J, 24 June 1996, unreported) that s 476(1)(f) requires an applicant to show `that the tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case'. That approach was followed by Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (Fed C of A, Lockhart J, 18 October 1996, unreported). He made three points. First, 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. Secondly, any particular matter relied on as showing actual bias must be considered in the context of the whole hearing. Thirdly, it is not enough that the decision-maker displayed irritation or impatience or even used sarcasm.'

At 555 Burchett J said:

`Actual bias, like any other conclusion of fact, may be established as an inference from circumstances. On this basis, the appellant relies on various aspects of the tribunal's decision as explicable only, or at least most naturally, by bias. When the court examines the material bearing on this issue, I think it should interpret the words of s 476(1)(f) in their natural sense. The use of the word `actual' strongly suggests that the legislature was endeavouring to get away from the somewhat special concept of bias which is immanent in the case law.

...

In my opinion, the statute, when it used Devlin LJ's expression `actual bias', substituted a test that looks to whether the tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially. I say `at least in some respect' because the statute extends to the situation where `the decision was ... affected ...by actual bias'. The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach.'

North J at 563 said that where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances: Re Gooliah v Minister for Citizenship and Immigration (1967) 63 DLR (2d) 224. He said that case demonstrated proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, taken together, form the whole picture leading to the conclusion of pre-judgment. It was, he said, unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias. In his view the case also demonstrated that actual bias does not necessarily involve deliberate, knowing, or wilful prejudice against an applicant."

41 It was said that the presiding member prejudged the claim as to the seriousness of Mrs Kaur's condition and did so, in part, by reference to certain personal circumstances affecting her. Thus, the presiding member said:

"Well, now we are hearing about the psychological condition of the wife. I just looked at that. You gave me the photocopy. Yes, so she has got a bit of high blood pressure. That is right, you gave me that. And of back pain. Look, really, this does not qualify as one of the sort of serious circumstances that we are talking about. We are talking about a disability. For example, somebody is severely disabled. We are talking about a prolonged illness. Something, you know, very serious or other serious circumstance and this does not qualify. This is the type of thing that everybody has occasionally. There is nothing about it that fits into that category."

42 After some further discussion, one of the family members present said through the interpreter that Mrs Kaur had been bedridden for three years, to which the presiding member replied that she had no evidence to suggest that that was so and that it did not appear to her that "she is a person who is usually bedridden." Upon being told that Mrs Kaur could not go through the day without the applicant's help and could not bend, the presiding member said "well her hands are all right" and referred to circumstances affecting a member of the presiding member's family. Later, the presiding member referred again to the fact that Mrs Kaur could use her hands and referred also to her presence at the hearing as a circumstance suggesting that she did not suffer from the serious disability claimed.

43 With the benefit of hindsight, I can say that some things were said which would better have been left unsaid. I think that is so. But that falls well short of an indication of actual bias. It must be remembered that the material which had been lodged in support of the application was far from detailed and informative about the true extent and seriousness of Mrs Kaur's condition and, particularly, about her prognosis. A degree of scepticism and impatience on the part of the presiding member is not in the circumstances surprising. Plainly enough, her questioning was directed to ascertaining exactly how serious the condition was. The fact that the presiding member was at first inclined to grant an adjournment so that further information might be obtained suggests, I think, as counsel for the Minister submitted, that she did not come to the hearing with her mind irrevocably made up. If it were suggested that the refusal of an adjournment involved procedural unfairness - a matter about which I say nothing - that would not be a ground of review in this Court; and procedural unfairness, where it happens, is by no means necessarily an indicator of actual bias.

44 In short, in my view that ground of the application, if it had been lodged within time, would not be made out.

Conclusion

45 The application must be dismissed in any event, for want of jurisdiction. The Minister has asked for costs, though he accepts that some consequences might follow, for that application, from the fact that the objection to competency was lodged very late. The case has involved some reasonably difficult issues of construction of recently introduced amendments to the legislation. The issues are of significant general importance. It is true that the application would have failed in any event. But I do not think that, in a case such as this, an order for payment either of the whole or of a portion of the Minister's costs is appropriate. In the circumstances, I shall make no order as to costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated: 10 February 2000

Solicitor for the Applicant:	Newman & Associates
Counsel for the Respondent:	Stephen Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 February 2000
Date of Judgment:	10 February 2000