BMT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 05 April 2022
• Neutral Citation: [2022] FCA 328
• Date: 05 April 2022
• Court: Federal Court

Federal Court of Australia

BMT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 328

Appeal from:	BMT19 v Minister for Immigration & Anor [2020] FCCA 3397
File number(s):	VID 39 of 2021
Judgment of:	WHEELAHAN J
Date of judgment:	5 April 2022
Catchwords:	MIGRATION – apprehended bias – where the Tribunal sent the appellant a notice under s 424A of the Migration Act 1958 (Cth) referring to (inter alia) previous criminal convictions of the appellant – where the Tribunal subsequently stated in its written statement that it gave the matters no weight in making its decision – whether the circumstances gave rise to a reasonable apprehension of bias – consideration of s 424A and the attributes of a professional decision-maker such as a Tribunal member – in all of the circumstances, sending the s 424A notice, which expressed a provisional view only, was insufficient to give rise to an apprehension of bias – the information about the criminal convictions, though prejudicial, was not so prejudicial that an informed fair-minded lay observer would think the Tribunal could not reasonably put it out of its mind – the Tribunal was permitted to explain in its written reasons its reasoning process for why it gave the information no weight – no apprehended bias – ground of appeal dismissed. ; MIGRATION – claim that a central factual finding was irrational or based on “no evidence” – discussion of high threshold for finding of irrationality or no evidence – the Tribunal’s decision read as a whole revealed that the relevant factual finding was based on a combination of factors – where that combination of factors was sufficient to found the Tribunal’s factual finding – where the factual finding was supported by at least a skerrick of evidence, the limitations of which the Tribunal acknowledged – ground of appeal dismissed.
Legislation:	Evidence Act 1995 (Cth) s 55 Migration Act 1958 (Cth) ss 5H(2), 36(1B), 36(1C), 36(2)(a), 36(2)(aa), 36(2C)(a), 36(2C)(b), 36(3), 65 , 411(1), 414, 418(3), 423, 424AA, 424A, 425(1), 430(1), 430D, 438, 473CB(1), 473DA(2), 473DB(1), 473DC, 473DD, 473DE, 473DF, 473JE(1), 500(1)(b), 500(1)(c), 501, pts 7 and 7AA ; Aronson, Groves and Weeks, Judicial Review of Administrative Action, 6th ed, (2017)
Cases cited:	AFD21 v Minister For Home Affairs [2021] FCAFC 167; 393 ALR 398 Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446 BMT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 3397 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 CNY17 v Minister for Immigration [2019] HCA 50; 268 CLR 76 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Enichem Anic Srl v Anti-Dumping Authority [1992] FCA 882; 39 FCR 458 Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; 54 CLR 200 FSG17 v Minister for Immigration [2020] FCAFC 29; 274 FCR 456 Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; 210 CLR 222 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24; 284 FCR 455 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; 215 FCR 35 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 Re JRL; ex parte CJL [1986] HCA 39; 161 CLR 342 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; 228 CLR 294 Shop, Distributive and Allied Employees Association v National Retail Association and Another (No 2) [2012] FCA 480; 205 FCR 227 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 Teubner v Humble [1963] HCA 11; 108 CLR 491 Webb v The Queen [1994] HCA 30; 181 CLR 41
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	84
Date of hearing:	20 July 2021
Counsel for the Appellant:	Mr A McBeth
Solicitor for the Appellant:	Russell Kennedy Lawyers
Counsel for the Respondents:	Mr J Barrington
Solicitor for the Respondents:	Sparke Helmore Lawyers

ORDERS

		VID 39 of 2021
BETWEEN:	BMT19 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	WHEELAHAN J
DATE OF ORDER:	5 April 2022

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the costs of the first respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The appellant appeals a decision of a judge of the Federal Circuit Court of Australia (as it then was) made on 17 December 2020, dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal: BMT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 3397 (Judge Kelly). The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the appellant a Permanent Protection (Class XA, Subclass 866) visa. In this court, the appellant relied on two grounds of appeal corresponding to two grounds of review that were rejected by the primary judge: first, that one of the Tribunal’s central findings was irrational or based on no evidence, and second, that the decision of the Tribunal was affected by apprehended bias. For the reasons that follow, I have determined to dismiss the appeal with costs.

2. The relevant history can be summarised as follows. The appellant is a citizen of India who arrived in Australia...