CMU16 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 11 June 2020
• Neutral Citation: [2020] FCAFC 104
• Date: 11 June 2020

FEDERAL COURT OF AUSTRALIA

CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104

Appeal from:	CMU16 v Minister for Immigration & Anor (No 2) [2017] FCCA 1948
File number:	NSD 1783 of 2017
Judges:	JAGOT, YATES AND STEWART JJ
Date of judgment:	11 June 2020
Catchwords:	MIGRATION – whether primary judge’s decision was affected by actual or apprehended bias – whether evidence of primary judge’s previous decisions relevant on tendency or coincidence basis – whether primary judge had failed to give the appellant a hearing – whether primary judge erred in rejecting claims of Tribunal’s jurisdictional error – whether primary judge denied appellant procedural fairness – whether primary judge erred by accepting that the Tribunal had considered the appellant’s circumstances in their totality – whether primary judge failed to provide adequate reasons – whether primary judge constructively failed to exercise jurisdiction
Legislation:	Commonwealth of Australia Constitution Act 1900 (Cth) Evidence Act 1995 (Cth) Migration Act 1958 (Cth)
Cases cited:	ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Allam v Aristocrat Technologies Australia Pty Ltd (No 2) [2012] FCAFC 75 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 CDD15 v Minister for Immigration and Border Protection [2017] FCAFC 65; (2017) 250 FCR 587 CMU16 v Minister for Immigration & Anor (No 2) [2017] FCCA 1948 Collier v Country Women’s Association of NSW [2018] NSWCA 36 Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 Condon v Pompano [2013] HCA 7; (2013) 252 CLR 38 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 Dennis v Commonwealth Bank of Australia [2019] FCAFC 231 Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Grassby v R [1989] HCA 45; (1989) 168 CLR 1 International Finance Trust Company Ltd v NSW Crime Commission [2009] HCA 49; (2009) 240 CLR 319 Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51 Knight v Victoria [2017] HCA 29; (2017) 261 CLR 306 Lambert v Weichelt (1954) 28 ALJ 282 Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2018) 264 CLR 421 MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656 R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [1999] UKHL 1; [1999] 2 WLR 272 R v MR [2013] NSWCCA 236 Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Vakuata v Kelly [1989] HCA 44; (1989) 167 CLR 568 Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181
Date of hearing:	13 and 14 February 2020
Registry:
Division:
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	93
Counsel for the Appellant:	Mr A Silva with Mr N Silva (Pro Bono)
Counsel for the Respondents	Mr C Lenehan SC with Ms J Davidson
Solicitor for the Respondents	Australian Government Solicitor

ORDERS

		NSD 1783 of 2017
BETWEEN:	CMU16 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent
	ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGEs:	JAGOT, YATES AND STEWART JJ
DATE OF ORDER:	11 june 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

The appeal

1. These reasons for judgment explain why we have dismissed the appeal from the orders of the primary judge dismissing the appellant’s application for review of a decision of the Administrative Appeals Tribunal (the Tribunal). The primary judge made these orders on 22 September 2017 consequential on reasons for judgment published the same day: CMU16 v Minister for Immigration & Anor (No 2) [2017] FCCA 1948 (Judge Street).

2. The fourth amended notice of appeal on which the appellant relies has eight grounds, each with multiple particulars. The eight grounds may be summarised as:

1. the primary judge was actually biased against migration applicants and in favour of the Minister;

2. the primary judge’s decision is affected by a reasonable apprehension of bias;

3. the primary judge breached s 71 of the Commonwealth of Australia Constitution Act 1900 (Cth) (Constitution) by failing to give the appellant a hearing;

4. the primary judge erred by not finding that the Tribunal acted upon a certificate invalidly issued under s 438 of the Migration Act 1958 (Cth) (Migration Act) or alternatively denied the appellant procedural fairness;

5. the primary judge erred by determining that the credibility findings made by the Tribunal were open to it;

6. the primary judge erred by finding that the material the subject of complaint was considered by the Tribunal;

7. the primary judge erred by not finding that the Tribunal had erred through bias or apprehension of bias in making its credibility findings, where the Tribunal’s error consisted of failing to consider the whole of the evidence (especially the strengths of the appellant’s evidence) instead focusing exclusively on negatives which were “objectively minor matters of fact”; and

8. the primary judge erred by not giving adequate reasons for his decision.

3. For the reasons given below none of these grounds of appeal is sustainable.

Background

4. The Minister’s submissions provide a convenient summary of the background to the appeal, including the decision of the Tribunal:

The appellant is a citizen of Sri Lanka who arrived in Australia on 9 April 2013 and is an unauthorised maritime arrival. He lodged an application for a protection visa on 12 July 2013. He claimed … to fear harm in Sri Lanka as a Tamil, by reason of imputed political opinion, as a Muslim, a business owner and a failed asylum seeker who departed Sri Lanka illegally. The appellant specifically claimed to have been harassed by Sinhalese thugs who...