Lack of recusal request waives apprehended bias claim?

Federal Court: Was there an apprehension of bias by reason of same AAT member hearing both nomination refusal review and corresponding 457 visa refusal review? Did Tribunal's finding that Appellant's evidence was not “persuasive or compelling” of itself amount to a finding that the Appellant was not a credible witness? Did Appellant, who was represented, waive apprehension of bias claim by not asking for the member to recuse herself? During appeal to FCA, it arose that the further nomination application had been refused. Did that mean that apprehension of bias, if established, was not material? Did Isbester apply to this case? Was refusal to adjourn review legally unreasonable?

The Department refused to approve a nomination of the Appellant (visa applicant) for a 457 visa and also refused the respective visa application.

The nominator applied to the Tribunal (AAT) for merits review of the nomination refusal and the Appellant applied to the Tribunal for merits review of the visa refusal.

Both matters were allocated to the same Tribunal member.

The Tribunal affirmed the nomination decision and then invited the Appellant to comment on the lack of a nomination, but the Appellant did not do so. Instead, she "asked the Tribunal to adjourn her review application pending the outcome of a judicial review application by [the nominator] in respect of the Tribunal’s decision to affirm the decision to refuse its nomination application, or at least until after the first directions hearing in those proceedings".

The Tribunal then invited the Appellant to attend a hearing, which she did. The FCA said the following about that hearing and what happened next:

15    It is important to emphasise at this point, that the appellant did not ask the Tribunal member who had the conduct of her review applications to recuse herself because she had heard and decided Nutritional Choice’s review application adversely to it. She did not contend at that stage that the member’s involvement in Nutritional Choice’s review application gave rise to an apprehension of bias. It should also be noted, in that regard, that the appellant was represented by a solicitor at this stage, though it appears that the solicitor did not appear at the Tribunal hearing.

16    The Tribunal did not adjourn the hearing of the appellant’s review application. The Tribunal did, however, defer making a decision on the review application so as to allow the appellant to consult her solicitor and provide further submissions within seven days.

17    On 27 June 2016, five days after the Tribunal’s hearing of the appellant’s review application, the appellant’s solicitor wrote to the Tribunal and advised that Nutritional Choice had filed yet another nomination application and that the appellant sought a “delay to the decision in the current matter … until such time as the [new] nomination application [by Nutritional Choice] has been decided”.

The Tribunal declined to adjourn the review, gave the following reasons for it and affirmed the delegate's visa decision:

After considering, the period of time since the visa application was lodged, that the Department and the Tribunal have already considered a nomination application by the same employer in respect of the same nominee and determined that the nomination application did not meet the necessary requirements, and the delay in the same employer making a new nomination application after the first nomination application was determined by the Tribunal, and that the applicant is seeking a delay for an unspecified period in which the new nomination application will be considered by the Department, and that the new nomination application may not be approved, the Tribunal declines to defer making a decision in this review application until the outcome of the new nomination application is known.

The Appellant then unsuccessfully applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision.

The Appellant eventually appealed the FCCA's decision to the Federal Court (FCA), the questions to which were as follows:

Question 1: Did the fact that the same member heard both matters amount to an apprehension of bias?

Question 2: Did the Tribunal's finding that the Appellant's evidence was not “persuasive or compelling” of itself amount to a finding that the Appellant was not a credible witness?

Question 3: Did the Appellant, who was represented, waive the allegation of apprehension of bias by not asking for member to recuse herself?

Question 4: Did the fact that the further nomination application had been refused by the Department by the time of the FCA decision mean that the claim of apprehension of bias, if established, was not material to the decision? Or did it mean, instead, that the FCA should "refuse to grant the relief sought by the appellant because it would have been futile to remit the matter to the Tribunal"?

Question 5: Did the High Court decision in Isbester apply to this case?

Question 6: Was the refusal to adjourn legally unreasonable?

The FCA answered those questions as follows:

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