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Minister for Immigration and Border Protection v  Guder  [2018] FCA 626 (11 May 2018)

Last Updated: 11 May 2018

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v  Guder  [2018] FCA 626

Appeal from:	Guder  v Minister for Immigration and Border Protection [2017] FCCA 2527
File number:	NSD 2091 of 2017
Judge:	GRIFFITHS J
Date of judgment:	11 May 2018
Catchwords:	MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia – whether the primary judge erred in finding that the Administrative Appeals Tribunal (AAT) breached s 360 of the Migration Act 1958 (Cth) (the Act) by failing to provide a meaningful opportunity for the appellant to address whether she should be afforded more time within the period of three years prescribed by IMMI 15/028 to attempt to satisfy the English language proficiency requirements in clause 457.223(4)(eb) in Sch 2 to the Act – whether the primary judge misconstrued or misapplied the test for apprehended bias and thus erred in finding that the AAT committed jurisdictional error on the basis of a reasonable apprehension of bias – appeal dismissed, with costs
Legislation:	Migration Act 1958 (Cth), ss 338, 347, 348, 349, 357A, 360 Migration Regulations 1994 (Cth), Sch 2 cl 457.223(4)(eb)
Cases cited:	ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 O’Grady v Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; 172 FCR 1 Travelex Ltd v Commissioner of Taxation [2010] HCA 33; 241 CLR 510 Workers’ Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; 165 CLR 642
Date of hearing:	7 May 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	54
Counsel for the Appellant:	Mr G Johnson
Solicitor for the Appellant:	Mills Oakley
Counsel for the Respondents:	Mr C Jackson with Mr P Berg
Solicitor for the Respondents:	City of Sydney Lawyers

ORDERS

		NSD 2091 of 2017
BETWEEN:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant
AND:	HAMIYET  GUDER  First Respondent ALI  GUDER  Second Respondent ARIF  GUDER  Third Respondent YIGIT  GUDER  Fourth Respondent ADMINISTRATIVE APPEALS TRIBUNAL Fifth Respondent

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the costs of the first to fourth respondents, as agreed or assessed.

REASONS FOR JUDGMENT

GRIFFITHS J:

1. This is an appeal by the Minister for Immigration and Border Protection (the Minister) from a judgment of the Federal Circuit Court of Australia (FCCA). The judgment is reported as  Guder  v Minister for Immigration and Border Protection [2017] FCCA 2527.

Summary of background facts

2. The first respondent, Mrs  Guder , is a citizen of Turkey. Her husband is the second respondent and her two children are the third and fourth respondents respectively. On 22 December 2014, Mrs  Guder  made an application for the grant of a subclass 457 visa on the basis of her occupation as a chef. Her family members were included as part of the application.
3. One of the requirements for the grant of a subclass 457 visa was that the visa applicant has undertaken a language test specified by the Minister in a legislative instrument and achieved, within the period specified by the Minister and in a single attempt at the test, the score specified by the Minister in the instrument. The specified period is three years from the date of application for a subclass 457 visa (see [15(b)] below).
4. The application for the visa was refused by the delegate on 10 April 2015 on the basis that Mrs  Guder  did not satisfy the language test requirements. This was because the test results for her IELTS examination were below the required levels.
5. Mrs  Guder  sought a review of the delegate’s decision in the Administrative Appeals Tribunal (AAT). Mrs  Guder  was initially represented by a migration agent but, as will shortly emerge, the agent did not attend the AAT hearing which was conducted on 4 December 2015. The migration agent and presumably Mrs  Guder  were notified by the AAT of its standard requirements that all evidence in support of the review application be provided to the AAT prior to the hearing. Mrs  Guder ’s migration agent sent copies of her IELTS results for five tests sat by her in 2014 and 2015 to the AAT, none of which met the language requirement.
6. The delegate’s decision was affirmed by the AAT on 8 December 2015, which date was before the expiration of the three year period referred to above. It was noted that none of the various IELTS test results provided by Mrs  Guder  prior to the AAT hearing showed that she had met the minimum required scores. The AAT noted at [8] of its reasons for decision that Mrs  Guder  had acknowledged this fact during the course of the hearing.
7. As noted above, Mrs  Guder ’s migration agent did not attend the AAT hearing. In an affidavit filed in the FCCA, Mrs  Guder  explained that this was because her agent said that she did not have satisfactory IELTS results.
8. In circumstances where the AAT was not satisfied that Mrs  Guder  had achieved in a single attempt the scores for a specified language test as set out in the relevant instrument (Ministerial Instrument IMMI 15/028), it found that she did not meet the requirements for the grant of a subclass 457 visa.
9. It is desirable to set out that part of the AAT transcript which records the exchanges between the AAT member and Mrs  Guder  concerning the English language proficiency requirement, noting that the hearing was conducted four days before the AAT published its decision and its reasons for decision (emphasis added):

Member Skaros: After considering your evidence, which is consistent with the information before me, I have determined that you are required to meet the English language proficiency requirement set out in the relevant instrument.
Turkish Interpreter: (Turkish language)
Member Skaros: A copy of that instrument, a copy of the information was sent to your representative and you were requested to provide the evidence to the Tribunal.
Turkish Interpreter: (Turkish language)
Member Skaros: Um, now you've claimed the ... the only evidence that I have relates to your IELTS tests results.
I have considered those results but unfortunately they do not meet the minimum requirement of 4.5 in each of the categories and five overall and so it appears that you do not meet the English language proficiency requirement.
Turkish Interpreter: (Turkish language)
Member Skaros: And so in these circumstances, the tribunal would not be able to find in your favour.
Turkish Interpreter: (Turkish language)
Hamiyet  Guder : Ok, yes
Hamiyet  Guder : [via translator]
Turkish Interpreter: What can I do now?
Member Skaros: You need to get advice from your representative. The point of coming in today is so I can basically let you know the concerns of the tribunal and why it will make the decisions that it will. OK?
Turkish Interpreter: (Turkish language)
Hamiyet  Guder : Yes
Turkish Interpreter: Yes
Member Skaros: Alright, look, I have no further things to discuss with you um I've um no I did only just receive these from your representative and so the reason ... it's good that you came in today because then I got the opportunity to explain to you why the decision will be what it is.
Turkish Interpreter: (Turkish language)
Hamiyet  Guder  Turkish: Thank you very much, thank you
Member Skaros: Feel free to go

10. It is desirable to set out the three paragraphs from the AAT’s reasons for decision which disclose the AAT’s reasons regarding the appellant’s English language proficiency:
    15. In the circumstances, the applicant is required to achieve a score in a single attempt in a test as specified in the instrument: IMMI 15/028. The applicant provided to the Tribunal the results of a number of IELTS tests which indicated that she has not achieved the specified scores of 4.5 in each component of the test and an overall score of 5.0.
    16. No other evidence has been provided to the Tribunal to demonstrate that the applicant achieved, in a single attempt in a specified test, the scores specified in the relevant instrument.
    17. Given the above, Tribunal finds that the applicant does not meet the requirements of cl.457.223(4)(eb).
11. It might be noted that although the AAT referred to the English language requirements set out in cl 457.223(4)(eb) of Sch 2 to the Migration Regulations 1994 (Cth), as well as to IMMI 15/028, no explicit reference is made anywhere in the AAT’s brief reasons for decision to the fact that Mrs  Guder  had three years within which to satisfy the relevant English language criterion.

FCCA judgment summarised

12. The applicants below pressed two grounds of judicial review. The first comprised a claim that there was a reasonable apprehension of bias on the part of the AAT and that it had a closed mind which was said to be reflected in the peremptory way in which the hearing was conducted.
13. The second ground claimed that the AAT had failed to provide Mrs  Guder  with a genuine opportunity to present her case and breached procedural fairness requirements in so doing.
14. In her affidavit dated 18 April 2017, which was relied upon by the applicants below, Mrs  Guder  acknowledged that, at the date of the AAT hearing on 4 December 2015, she did not have satisfactory IELTS results, but she said that she was urgently making arrangements to sit a further test and that she was confident that she would achieve satisfactory results. She complained that the AAT member never asked her any questions about any further IELTS test which she might sit or whether she thought that, if she was given a little more time, she could produce further evidence to the AAT to show that she met the English language requirement.
15. The primary judge found that the AAT was obliged to provide a fair opportunity to Mrs  Guder  to address two key issues and to keep an open mind on those issues. The two issues were identified as:

(a) the issue of whether Mrs  Guder  met the English language requirements in cl 457.223(4)(eb) or that she was an exempt applicant for the purposes of IMMI 15/028 (primary issue); and
(b) having regard to the fact that the period specified in IMMI 15/028 for meeting the English language test requirement was a period of three years from the date of the visa application, and having regard to the fact that the AAT hearing was conducted about one-third of the way into that prescribed period, at what point within the three year period was it appropriate for the AAT to make its decision (secondary issue)?

16. The primary judge noted that Mrs  Guder ’s appeal in the AAT was conducted along with three other cases, with the consequence that, as the primary judge noted, the presiding member spent time dealing with administrative issues relating to that grouping.
17. The primary judge set out extracts from the transcript of the AAT hearing, including exchanges between the presiding member and Mrs  Guder  through an interpreter. From his Honour’s review of the transcript, the primary judge found that:

(a) the AAT member knew more about Mrs  Guder ’s application than she did;
(b) Mrs  Guder  was obviously at a disadvantage in the absence of her migration agent, who did not attend the hearing;
(c) the AAT member specifically noted that Mrs  Guder ’s visa application had been made in December 2014 and the member would have been aware that Mrs  Guder  had until December 2017 to satisfy the English language test criterion; and
(d) the focus of the AAT’s member’s attention was on the failure of Mrs  Guder , prior to date of the AAT’s decision, to meet the English language requirement.

18. The primary judge noted that the AAT did not consider whether Mrs  Guder  should be given more time to meet the English language requirement and that when Mrs  Guder  asked what she could do now, the member simply referred Mrs  Guder  to her representative, who was not present. The primary judge concluded that, at that point in time, the AAT had made up its mind.
19. The primary judge found that the AAT was obliged to ensure that Mrs  Guder  was aware of what his Honour described as “the secondary and consequential issue”, namely whether Mrs  Guder  should be afforded more time within the prescribed period of three years to attempt to meet the criterion. Its failure to do was held to be a breach of s 360 of the Migration Act 1958 (Cth) (the Act). For that reason, the AAT’s decision was set aside for jurisdictional error.
20. Section 360 of the Act (which is in Pt 5) provided:

360 Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

21. Although strictly unnecessary having regard to the primary judge’s finding that there had been procedural unfairness, the primary judge indicated that, if necessary, he would also have found that the AAT’s conduct gave rise to a reasonable apprehension of bias on the basis that a fair-minded lay observer might apprehend that the AAT member might not bring an unprejudiced mind to bear upon the secondary issue. His Honour said at [23]:

...Taken together, this leads me to find that a fair-minded lay observer, aware of all the relevant circumstances and facts, might reasonably apprehend that the Tribunal member might not have brought an unprejudiced mind to bear upon the issue of the time within which Mrs  Guder  should be given to attempt to comply with the visa criterion...

The notice of appeal

22. The Minister raised the following three grounds of appeal:
    1. The primary judge erred in finding that the Administrative Appeals Tribunal failed to afford the Appellant a meaningful hearing, and that it breached s.360 of the Migration Act 1958, in characterising as an issue arising in relation to the decision under review whether the Appellant should be afforded more time within the period of three years prescribed in the Ministerial Instrument to attempt to meet clause 457.223(4)(eb) in Schedule 2 of the Migration Regulations 1994: paragraphs [17]-[18] and [22] of the reasons for judgment.
    2. The primary judge erred in finding that the decision of the Administrative Appeals Tribunal was affected by jurisdictional error on the basis of a reasonable apprehension of bias by misconstruing the test for reasonable apprehension of bias: paragraph [23] of the reasons for judgment.
    3. In the alternative to ground 2, the primary judge erred in finding that the decision of the Administrative Appeals Tribunal was affected by jurisdictional error on the basis of a reasonable apprehension of bias by misapplying the test for reasonable apprehension of bias: paragraph [23] of the reasons for judgment.

The parties’ submissions summarised

23. The Minister stated that, in order to succeed on the appeal, he had to establish ground 1 and either of grounds 2 and 3. The basis for this statement, which was not withdrawn during the course of oral address, is somewhat unclear because it is difficult to view the primary judge’s observation and conclusions regarding apprehended bias as forming part of the ratio of the case.
24. As to ground 1, the Minister acknowledged that the AAT failed to raise with Mrs  Guder  the fact that she had more time to sit another language test and that she could seek to adjourn the review for that to occur. He submitted, however, that this did not constitute an issue “arising in relation to the decision under review” as it appears in s 360 of the Act. This was because determining what are the issues arising in relation to the decision under review requires consideration of both the statutory criteria for the relevant visa and the delegate’s reasons for decision, and the delegate's reasons are invariably the place to begin when identifying the issues arising on the review, citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL) at [35] and SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; 172 FCR 1 at [115] per Besanko J and at [7] per Gray J.
25. The Minister submitted that the question of whether Mrs  Guder  should have been given more time to meet the England language proficiency requirement was not an issue arising in relation to the decision under review and the primary judge’s approach was wrong, because, in effect it obliged the AAT to assist or advise Mrs  Guder  in the conduct of her review, which is not the function of the AAT, citing Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 (SCAR) at [36]. In oral address, Mr Johnson, who appeared for the Minister, also relied upon some observations of Keane CJ in Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575 (SZNVW) at [35] and [36].
26. As to ground 2, the Minister referred to the Full Court’s decision in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] as identifying the correct test:
    35. Although the application of the apprehended bias test can give rise to difficulties, the parties were in substantial agreement as to the primary elements of the test. That is hardly surprising because the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner); Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 (British American Tobacco)).
27. The Minister complained that the primary judge never set out the correct test in his reasons for judgment and further submitted that what his Honour said at [23] (see [21] above) was an incorrect statement of the test because it suggested that the fair-minded lay observer’s attention should be focused on the time within which the English language proficiency requirement had to be met, as opposed to the correct focus of the test, namely “determination of the matter on its merits”.
28. As to ground 3, the Minister contended that, even if the primary judge understood the correct test for apprehended bias, he misapplied it in the circumstances of this case. This was because, so it was submitted, the absence of any reference to the time within which the English language proficiency requirement had to be met cannot have suggested to a fair-minded lay observer that the AAT member had a closed mind as to the determination of the merits of Mrs  Guder ’s case.
29. The respondent submitted that no error was demonstrated in relation to the primary judge’s findings concerning apprehended bias because, from the commencement of the AAT hearing, it appeared that the AAT was “committed” to refusing the visa and concluding the hearing mandated by the Act as soon as possible. In support of this contention, the respondent relied inter alia upon the fact that the hearing involved three separate matters and that the three review applicants were sworn in a group “like a Sun Myong Moon wedding”.
30. The respondent drew attention to the fact that, in the events that occurred, Mrs  Guder  ultimately passed the IELTS test in February 2016, as the primary judge noted at [15].
31. The respondent defended the primary judge’s findings on bias on the basis that the AAT hearing “was a meaningless, empty gesture” and Mrs  Guder  had not been given a meaningful opportunity to seek an adjournment so that she could meet the English language requirement.
32. As to the Minister’s claim that the primary judge misstated the correct test for apprehended bias, the respondent submitted that, even if that were the case, the error would not be material because his Honour’s ultimate conclusion that there was apprehended bias was correct.

Consideration and disposition of the appeal

33. (a) Ground 1: As noted above, the Minister placed heavy reliance upon SZBEL. That case involved the construction and application of s 425 of the Act (which is in Pt 7), but has substantially similar terms to s 360 (which is in Pt 5). The Refugee Review Tribunal was obliged by s 425(1) to invite an applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The operation of that provision arose in SZBEL in the context of that Tribunal having made adverse credibility findings by reference to issues which were not disclosed by it to the review applicant for comment and which were different from the issues which the delegate had considered to be dispositive. There is a different context here.
34. In describing the relevant legal principles in the present appeal, the Minister selectively quoted from [35] in SZBEL. The entirety of that paragraph should be noted (emphasis added):
    35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision maker identified as determinative against the applicant.
35. Reference should also be made to [40] of SZBEL:
    40. More than once it has been said that the proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made. As the Tribunal recorded in its reasons in this matter, however, that does not mean that it is useful to speak in terms of onus of proof . And although there is no joinder of issues, the Act assumes that issues can be identified as arising in relation to the decision under review. While those issues may extend to any and every aspect of an applicant's claim to a protection visa, they need not. If it had been intended that the Tribunal should consider afresh, in every case, all possible issues presented by an applicant's claim, it would not be apt for the Act to describe the Tribunal's task as conducting a "review", and it would not be apt to speak, as the Act does, of the issues that arise in relation to the decision under review.
36. Section 360 cannot be looked at in isolation from other relevant provisions in Pt 5, which contains detailed provisions for review of what is defined in s 338 as a “Part 5-reviewable decision”. Section 348 is an important provision. In substance, it imposes a legal obligation on the Tribunal to review a Part 5-reviewable decision where an application has been properly made under s 347 of the Act. Section 349 is another important provision. It provides that, for the purposes of the review of a Part 5-reviewable decision, the Tribunal may “exercise all the powers and discretions that are conferred by this Act on the person who made the decision”.
37. It is necessary to have regard to some important observations of the plurality of the High Court (Hayne, Kiefel and Bell JJ) in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) regarding s 360. At [55] their Honours noted the connection between s 357A(1) and the requirements of procedural fairness provided by Div 5 (including s 360). With reference to the statement in s 357A(3) that, in applying Div 5 of Pt 5, the Tribunal “must act in a way that is fair and just”, their Honours said that the provision did not give rise to enforceable requirements (see at [51]-[52]), but added that the provision may nevertheless have other consequences (see [59]).
38. Justices Hayne, Kiefel and Bell JJ made some important and relevant observations regarding the nature and scope of s 360 in [59]-[61] (footnotes omitted and emphasis added):
    59. A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.
    60. The duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example. Section 360(1) and its purpose are central to Div 5 and the conduct of the review for which the Division provides. The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal's duty therefore extends further than merely issuing an invitation to an applicant to appear.
    61. Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal's knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.
39. It is important to emphasis the plurality’s observations in Li that s 360(1) requires that the invitation to a review applicant to appear before the Tribunal must be “meaningful” in the sense that the Tribunal must provide the review applicant with “a real chance to present his or her case”.
40. In the present appeal, I consider that the Minister has taken an unduly narrow construction of s 360. In particular, I consider that the Minister’s position reflects too narrow a construction of the phrase in s 360(1), “relating to the issues arising in relation to the decision under review”. It is significant that that phrase contains the expressions “relating to” and “in relation to”. It is well established that such expressions are generally to be given a broad construction, subject, however, to the particular statutory context in which they appear (see, for example, Workers’ Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; 165 CLR 642 at 653; O’Grady v Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356 at 374 and Travelex Ltd v Commissioner of Taxation [2010] HCA 33; 241 CLR 510 at [25] per French CJ and Hayne J).
41. Consistently with SZBEL, issues in relation to a decision under review may extend to any and every aspect of an applicant’s claim for a visa, but they need not. Moreover, in conducting a Pt 5 review, the Tribunal is not confined to whatever may have been the issues considered by the delegate. It is the Tribunal’s task to identify the issues that arise in relation to the decision under review, guided but not confined by the delegate’s reasons for decision and taking into account the express terms of the criteria for the grant of the relevant visa. Those criteria, coupled with the relevant Ministerial instrument, made clear that Mrs  Guder  had until December 2017 to meet the English language proficiency requirement. In those circumstances, the issue of whether she should be given more time to meet that requirement by adjourning the AAT hearing to allow that to occur was an issue arising in relation to the decision under review. Moreover, I consider that the issues arising in relation to a decision under review can include procedural matters which may arise prior to, or during the course of, the AAT hearing. They include procedural matters which are relevant to the AAT’s duty to provide the review applicant “with a real chance to present his or her case”. Depending upon all the relevant individual facts and circumstances, including whether the review applicant is represented at the hearing, this may require the AAT to ensure that the review applicant understands the AAT’s processes and, in an appropriate case, understand that he or she can request an adjournment for appropriate reasons. It will then be a matter for the AAT to determine whether or not to grant that request.
42. In the circumstances here where, for the purposes of the hearing itself, Mrs  Guder  was not represented and having regard to the timing of the AAT hearing occurring well before the period for compliance with the language requirement, the AAT ought to have explained its processes and procedures so that Mrs  Guder  could request an adjournment. The AAT could then have considered whether or not it would grant an adjournment having regard to all the relevant circumstances. These steps should have been taken in order to ensure that the invitation which was given to Mrs  Guder  to attend the AAT hearing was “meaningful” and that she was provided “with a real chance to present [her] case”.
43. I do not accept the Minister’s submission that the primary judge’s approach effectively required the Tribunal to assist or advise Mrs  Guder  in the conduct of her review, thereby compromising the AAT’s impartiality. It must have been apparent to the AAT at the hearing that, although Mrs  Guder  had previously been represented by a migration agent, the migration agent did not attend the AAT hearing. As the transcript set out in [9] above reveals, Mrs  Guder  expressly asked the AAT member what she could do now, to which the member responded: “You need to get advice from your representative”. That response may well have been sufficient in other circumstances where, for example, the migration agent was present and could give advice to Mrs  Guder  on the spot about seeking to have the AAT hearing adjourned so that she could satisfy the English language proficiency requirement. But it was not a sufficient response in the circumstances here where it was evident to the AAT that Mrs  Guder  was representing herself at the AAT hearing. Merely describing the AAT’s processes and procedures could not have compromised the Tribunal’s impartiality.
44. I reject the Minister’s reliance on SZNVW. In that case, SZNVW’s application for review to the Refugee Review Tribunal was unsuccessful because the Tribunal did not find him to be a truthful or credible witness. Subsequently, the Federal Magistrates Court held that, by reason of material placed in evidence before it (which was not before the Tribunal) concerning SZNVW’s emotional and state of mind, the Tribunal was deprived of the opportunity to assess his evidence in the light of his diagnosed mental impairment. It was held in that Court that the review applicant had been denied a real and meaningful opportunity to participate in the hearing and have his evidence fairly assessed by the Tribunal in the light of his mental impairment.
45. The Minister’s appeal to the Full Court was successful. Chief Justice Keane stated at [34] that merely because a different view might have been taken of the review applicant’s credibility had more information been before the Tribunal as to his mental impairment did not constitute the denial of a “real and meaningful” opportunity to give evidence and present arguments in support of the review application. The Chief Justice also distinguished SCAR for reasons which are set out at the end of [34].
46. It is against this background that the Chief Justice made the observations in [35] and [36] upon which the Minister relies in this appeal. For convenience, those paragraphs are as follows:
    35. In summary to this point, there is nothing in the text of s 425, or in the statutory context in which it appears, or in the authoritative judicial exegesis of s 425, to suggest that it was the intention of the legislature that the Tribunal should take upon itself the role of ensuring that all possibly arguable lines of argument which might be available to an applicant in any given case are pursued to the applicant’s best advantage.
    36. There was, in my respectful opinion, no foundation for the magistrate’s ultimate conclusion that “the applicant was denied a fair opportunity of having the Tribunal assess whether those defects [in addition to demeanour, memory, and consistency] were attributable to a mental impairment, or to concerns about veracity.” The Tribunal was not obliged to conduct an inquiry to discover whether the respondent’s case might be better put or supported by other evidence. The applicant had the opportunity to adduce such evidence as to his psychological state and its impact on his “demeanour, memory and consistency”, as he wished. There is no suggestion that his capacity to make decisions in his own interests in that regard was impaired by his condition.
47. It is significant that these observations were directed to the Tribunal’s role in assisting a review applicant on a substantive issue, namely whether those aspects of the review applicant’s evidence which underpinned the Tribunal’s adverse credibility findings were attributable to his mental impairment. I do not consider these paragraphs as relevant to the circumstances here, where the relevant issue is not a substantive issue, but rather relates to the fairness of the AAT’s hearing and the procedural steps which needed to be explained to discharge the duty owed to Mrs  Guder  that she had a real chance to present her case.
48. Returning to the Tribunal’s task of identifying the issues that arise in relation to the decision under review, the delegate’s reasons for decision are plainly one source of information to be considered by the Tribunal, but they do not exhaust the task of the Tribunal. Thus, merely because the delegate made no reference to the three year period in the delegate’s reasons for decision does not excuse the Tribunal from not raising that as a relevant issue. That is particularly the case when the time period is an aspect of the mandatory criteria for the particular visa for which Mrs  Guder  applied. As the primary judge found, it should be assumed that the AAT member was aware of the three year period.
49. The Minister did not complain on the appeal that he was caught by surprise when the primary judge determined the judicial review application by reference to “the secondary and consequential issue”. Although that issue is not directly raised by the terms of the judicial review application in the FCCA, the Minister was put on clear notice that Mrs  Guder  challenged the AAT’s decision on the basis that she was never asked any questions by the AAT relating to the possibility of her meeting the English language proficiency requirement during the remaining period of time available to her. That issue was squarely raised in her affidavit below (see [14] above).
50. For these reasons, ground 1 of the appeal should be rejected. The Minister has not established any appealable error in respect of the primary judge’s finding that there was a breach of s 360 of the Act.
51. In those circumstances, it is unnecessary to determine grounds 2 and 3 because the Minister conducted the appeal on the basis that he had to succeed on ground 1 to be successful in the appeal. I also strongly doubt that the primary judge’s findings on apprehended bias formed part of the ratio of the judgment. For completeness, however, I can indicate that, if necessary, I would also have dismissed these grounds . I do not accept the Minister’s submission that the primary judge set out the wrong test for apprehended bias. The passage from [23] of the primary judge’s reasons for judgment (which is set out at [21] above) is not inconsistent with the correct test. The primary judge’s reference to a fair-minded lay observer’s assessment by reference to the issue of time is not inconsistent with the focus of the test being on the question of the need for an unprejudiced mind in determining the merits of Mrs  Guder ’s case. Rather, the primary judge was simply focusing on the AAT’s determination of one aspect of that case, the merits of which had to be assessed with an unprejudiced mind.
52. Nor do I consider that the primary judge misapplied the correct test. It was open to the primary judge to conclude that a fair-minded lay observer might apprehend that the AAT might not have brought an unprejudiced mind to the determination of the merits of that aspect of Mrs  Guder ’s case which related to the English language proficiency requirement. The correct test requires an imputation to the fair-minded lay observer of all relevant facts and circumstances. In this case, this includes not only the rather perfunctory way in which the AAT conducted its hearing and Mrs  Guder ’s unrepresented status, but also the absence of any direct reference to the time period in either the transcript or the AAT’s reasons for decision. Accordingly, I accept Mrs  Guder ’s submission that, even if the primary judge misunderstood the correct test, his Honour’s finding of apprehended bias was open to him by reference to the correct test. In other words, any error concerning the terms of that test are immaterial.

Conclusion

53. For these reasons, the appeal should be dismissed, with costs.
54. It might also be noted that, during the course of oral address, I raised with Mr Johnson why the appeal had been brought in circumstances where, following the AAT’s decision and prior to the FCCA hearing, Mrs  Guder  obtained satisfactory IELTS results and thereby met the English language proficiency requirement. Mr Johnson explained that the appeal was brought in view of the Minister’s concern that the primary judge had adopted too broad a construction of the phrase “issues arising in relation to the decision under review”. If that be the case, it would have been appropriate for the Minister to have offered to pay Mrs  Guder ’s costs in what he apparently viewed as a test case. In any event, the Minister’s appeal has failed and costs have followed the event.

Associate:

Dated: 11 May 2018