Bui v Minister for Immigration and Citizenship
[2010] FCA 234
FEDERAL COURT OF AUSTRALIA
Bui v Minister for Immigration and Citizenship [2010] FCA 234
Citation: Bui v Minister for Immigration and Citizenship [2010] FCA 234 Appeal from: Bui v Minister for Immigration & Anor [2009] FMCA 1096 Parties: THI VAN ANH BUI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 1431 of 2009 Judge: COWDROY J Date of judgment: 17 March 2010 Corrigendum: 22 March 2010 Legislation: Federal Court Rules (Cth) O 52 r15
Migration Act 1958 (Cth) s 31(3)
Migration Regulations 1994 (Cth) regs 1.15A, 2.03, Schedule 2 cl.300.216Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 cited
BTR PLC and Another v Westinghouse Brake and Signal Company (Australia) Ltd and Others (1992) 34 FCR 246 cited
House v The King (1936) 55 CLR 499 cited
Hughes v National Trustees Executors & Agency Co. of Australasia Ltd [1978] VR 257 cited
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applied
Jeffers v R (1993) 112 ALR 85 considered
Jess v Scott and Others (1986) 12 FCR 187 cited
John Barrington Parker v R [2002] FCAFC 133 applied
Livesey v New South Wales Bar Association (1983) 151 CLR 288 cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 cited
Pham v Minister for Immigration [2009] FMCA 287 cited
R v Watson; Ex Parte Armstrong (1976) 136 CLR 248 cited
Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 cited
Re Refugee Review Tribunal and Another; Ex parte H and Another (2001) 179 ALR 425 citedDate of hearing: 8 February 2010 Place: Sydney Division: GENERAL DIVISION Category: NO CATCHWORDS Number of paragraphs: 69 Solicitor for the Applicant: Turner Coulson Immigration Lawyers Counsel for the First Respondent: Mr Knackstredt Solicitor for the First Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1431 of 2009
BETWEEN: THI VAN ANH BUI
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE OF CORRIGENDUM:
22 MARCH 2010
PLACE:
SYDNEY
CORRIGENDUM
On the cover sheet of the Judgment, date of Judgment has been changed from ‘17 February 2010’ to ‘17 March 2010’.
On the orders page of Judgment, date of order should read ‘17 March 2010’ instead of ‘17 February 2010’.
On the first page of the Reasons for Judgment, the date should read ‘17 March 2010’ instead of ‘17 February 2010’.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 22 March 2010
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1431 of 2009
BETWEEN: THI VAN ANH BUI
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
17 FEBRUARY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time to file and serve a notice of appeal be dismissed.
2.The Applicant pay the First Respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1431 of 2009
BETWEEN: THI VAN ANH BUI
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE OF CORRIGENDUM:
17 FEBRUARY 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant (‘the review applicant’) seeks an extension of time to file and serve a notice of appeal from the decision of Federal Magistrate Smith delivered on 18 November 2009 which dismissed an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) handed down on 21 May 2009. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a ‘Prospective Marriage’ (Temporary) visa (Class TO, Subclass 300) to the review applicant’s fiancé, Ming Dung Ta (‘visa applicant’ or ‘Mr Ta’).
BACKGROUND
The review applicant is a naturalised Australian citizen who sponsored an application by Mr Ta for a ‘Prospective Marriage’ (Temporary) visa (Class TO, subclass 300) (‘the visa’). Such visa is granted to an offshore visa applicant, and enables an applicant to travel to Australia to enter into a proposed marriage.
The application was made to the Principal Migration Officer of the Australian Embassy in Hanoi, Vietnam on 8 August 2007. It was refused by a delegate of the Minister on 29 October 2007. This decision was made primarily on the basis of Mr Ta’s failure to satisfy cl.300.216 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’); which requires that: ‘The Minister is satisfied that the parties genuinely intend to live together as spouses’.
On 28 November 2007 the review applicant applied to the Tribunal for a review of that decision.
THE TRIBUNAL’S DECISION
The Tribunal found that the visa applicant and the review applicant were not witnesses of truth and had created their claims in order to obtain the visa sought. The Tribunal was satisfied that the engagement and the intended wedding of the visa applicant to the review applicant had been contrived and that the visa applicant and the review applicant did not, at the date of application, have a genuine intention to marry and reside together as husband and wife. As the Tribunal found that the visa applicant and the review applicant did not genuinely intend to live together as spouses, it also found that the visa applicant did not meet cl.300.216 of Schedule 2 of the Regulations and affirmed the decision under review.
FEDERAL MAGISTRATES COURT
By application filed in the Federal Magistrates Court of Australia on 11 June 2009 the review applicant sought judicial review of the Tribunal’s decision.
Before Smith FM, the review applicant relied on the following grounds:
1. The Second Respondent’s decision is affected by apprehended bias.
Particulars
a. The Tribunal set about its task by looking for reasons to reject the application
(i) the Tribunal found evidence to be inconsistent when it was not inconsistent.
(ii) the Tribunal rejected sworn/affirmed evidence because there was no “independent evidence” to support it in circumstances where there would ordinarily be no such evidence available
(iii) relied upon evidence said by it to only “to obtain the visa sought” when the evidence was not relevant to an application for the visa sought and could not affect the decision.
2. The Tribunal failed to provide the Applicant procedural fairness.
Particulars
a. A child’s interests were affected by the application and were made known to the Tribunal, paras 22, 24.
b. The Tribunal failed to consider, or take account of, the best interests of that child.
c. The Tribunal failed to advise the Applicant that it would not be treating the best interests of that child as a primary criteria.
3. The Tribunal took account of irrelevant considerations.
Particulars
a. …
b. Regulation 1.15A which has no application to Prospective Marriage Subclass 300 visa applications.
In respect of ground 1, the Federal Magistrate found that there was no evidence to support the allegation of apprehended bias and found such claim effectively amounted to no more than an attack on the merits of the Tribunal’s decision. His Honour observed that it was the Tribunal’s statutory duty to make a decision with respect to the issues of credibility and intention raised by cl.300.216 and, having decided against the review applicant, to provide a statement explaining its reasons for doing so. His Honour considered that a ‘fair-minded lay observer’ would be so aware and would not conclude that apprehended bias was demonstrated on the part of the Tribunal.
In respect of ground 2, the Federal Magistrate stated that it was difficult to understand how a consideration of ‘the best interests of a child’ could have a legal or factual bearing on the Tribunal’s application of the criterion in cl.300.216, namely; whether there exists in two adults an intention to marry and live together. His Honour did accept, however, that it was conceivable that proof of the existence of the relevant intention might be assisted by evidence of a relationship between the prospective spouse and the child which is probative of the likelihood of the adults wishing to marry and live together. In such a case, there might be coincidence of the adults’ intention and what might appear to be the best interests of the child, and the evidence might be relevant to the decision-maker’s consideration of cl.300.216.
On this basis, the Federal Magistrate interpreted the review applicant’s complaint to be that the Tribunal had failed to consider the review applicant’s claim that she believed that her marriage to Mr Ta was in the best interests of her son and that such belief was relevant in assessing her and Mr Ta’s ‘genuine intention to live together as spouses’. His Honour stated that whether such a claim was in fact made was unclear from the evidence before the Court. His Honour however accepted the submission of the Minister that the Tribunal’s adverse findings relating to the review applicant’s credibility carried with it a refusal to accept the suggested factual claim in relation to the son’s relationship with Mr Ta. The rejection of that claim, if it was in fact made, was therefore ‘subsumed’ in the Tribunal’s more general reasons: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91].
In respect of ground 3, the Federal Magistrate accepted that the Tribunal was not bound to follow reg.1.15A of the Regulations and that jurisdictional error might appear in the circumstances where the decision-maker found against a couple because they did not currently or in the past demonstrate a relationship with the characteristics suggested by reg.1.15A.
His Honour found however that in the circumstances of the present case the Tribunal’s findings referring to reg.1.15A(3) did not form part of its reasons for its conclusion that Mr Ta did not meet cl.300.216. His Honour noted that the Tribunal itself stated that it was not bound to address the reg.1.15A matters in ‘Prospective Marriage’ (Temporary) visa (Class TO, Subclass 300) applications unless they were ‘applicable’. His Honour held that this suggested that the Tribunal was aware of the fact that these matters could only be relevant in so far as they might illuminate a current intention concerning future cohabitation.
Having found no jurisdictional error in the Tribunal decision, Smith FM dismissed the application.
APPEAL TO THIS COURT
On 14 December 2009 the review applicant filed in this Court an application for extension of time to file and serve a notice of appeal from the decision of Smith FM delivered on 18 November 2009.
In a draft notice of appeal attached to an affidavit filed on the same date, the review applicant raises the following 3 grounds of appeal:
1.The Federal Magistrate erred in finding that apprehended bias requires some indication in the proceedings prior to the decision that the Tribunal may have approached its decision with a closed or pre-determined mind.
2.The Federal Magistrate erred in finding that the Tribunal did not fail to take into account the best interests of the child as a primary consideration or provide the Appellant with procedural fairness in relation to its consideration of the child involved in these proceedings.
3.The Federal Magistrate erred in “not read(ing) the Tribunal’s inconclusive findings referring to reg.1.15A(3) as providing, or forming part of, its reasons for its conclusions that Mr Ta did not meet cl.300.216”.
SUBMISSIONS OF THE REVIEW APPLICANT
The review applicant is legally represented and was represented before the Federal Magistrates Court. Her legal representative made both oral and written submissions. Since there are three principal grounds of appeal which the review applicant seeks to advance if leave to appeal is granted, the Court will consider each submission and make its finding in respect of each ground. Before doing so however the Court will refer to the applicable rule where an application for extension of time to file and serve a notice of appeal is made.
The relevant rule is O 52 r 15 of the Federal Court Rules (‘the Rules’). Pursuant to such rule a notice of appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced (see O 52 r 15(1)(a)(i)) or within such further time as may be allowed if application is made within a period of 21 days (see O 52 r 15(1)(b)). However, pursuant to O 15(2) the Court or a Judge ‘for special reasons’ may at any time give leave to file and serve a notice of appeal.
It has been recognised that ‘special reasons’ requires an applicant to demonstrate that there is a special justification for a Court granting leave. In Jess v Scott and Others (1986) 12 FCR 187 at 195 the Court said of the grounds necessary to be established before leave will be granted:
Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression ‘special reasons’ implies something narrower than this.
In considering whether ‘special reasons’ exist as required by O 52 r 15(2) of the Rules, the Court must be satisfied that there is an acceptable explanation for the delay, that it would be fair and equitable in the circumstances to grant the application; and that there is merit in the substantial application: see Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-349; John Barrington Parker v R [2002] FCAFC 133.
The object of the O 52 r 15(2) is to allow the Court a discretion to extend time in order to avoid injustice: see Hughes v National Trustees Executors & Agency Co. of Australasia Ltd [1978] VR 257 at 262-263, quoted by the Full Court with approval in Jess at 193. The merits of the substantial application are determinative as to whether the Court’s discretion will be exercised. In Jeffers v R (1993) 112 ALR 85 at 86 the Court said:
However, should the appellant be unable to demonstrate any prospect of success in the appeal which he seeks to prosecute he would, for that reason, not be entitled to an extension of time, despite the other circumstances.
Reason for delay
The review applicant has filed an affidavit in which she states that on 20 November 2009 she received a letter from her solicitor informing her that a decision of the Federal Magistrates Court had dismissed her application. As the review applicant did not understand English, she consulted a friend and had the letter explained to her on 21 November 2009. On the same day the review applicant telephoned her fiancé in Vietnam. She then made an appointment to see her solicitor on 26 November 2009 and during that appointment she received advice. On the following day she telephoned her fiancé and explained the advice to him. On 8 December 2009 the fiancé of the review applicant informed her that he was transferring money from Vietnam to pay for an appeal and on 8 December she instructed her solicitor to appeal against the decision of the Federal Magistrates Court.
Smith FM delivered his decision on 18 November 2009. Pursuant to O 52 r 15(1) any notice of appeal was to have been filed on or before 9 December 2009. The Court infers that the review applicant was not prepared to institute an appeal unless funds were available and that it was necessary to wait for the transmission of funds before she was in a position to proceed with the appeal. Since the review applicant had been legally represented before the Federal Magistrates Court and on 26 November 2009 had received advice from her solicitor concerning her appeal, namely before the time for appeal had expired, there is in reality no satisfactory explanation for the delay. However the fact the visa applicant is not and has not been in Australia, together with the fact that it was necessary that he provide the requisite funds for the appeal are factors which the Court takes into consideration. The first respondent does not claim that it would suffer any prejudice if the application to extend time in which to appeal was granted. The Court notes that the delay is negligible. In the circumstances the failure to comply with the Rules does not, of itself, lead to the Court rejecting the application.
The Court will now turn to the three matters which the review applicant would seek to raise if leave were granted to institute the appeal.
Ground 1: Apprehension of bias
The first ground of the draft notice of appeal states:
The Federal Magistrate erred in finding that apprehended bias requires some indication in the proceedings prior to the decision that the Tribunal may have approached its decision with a closed or pre-determined mind.
In support of this ground the review applicant firstly refers to the findings made by the Tribunal in regard to two statements which the Tribunal found to be inconsistent and resulted in the finding that the witnesses were not witnesses of truth.
The review applicant had told the Tribunal that she first met her fiancé’s family in January 2007. However the visa applicant stated in a telephone interview with the Tribunal Member that the review applicant first met such family ‘after she arrived in November 2006’. The Tribunal found that the statements were inconsistent. The applicant submits that such statements are not inconsistent, and that such conclusion demonstrates apprehended bias.
The second statement relates to the review applicant’s occupation of a flat at Cabramatta. The Tribunal rejected the evidence that the review applicant paid for her share of rent directly to two friends known as Anh and Phong and found that there was no independent evidence before the Tribunal to verify the existence of her lease, such as copies of leases, real estate agent statements, bank accounts or electricity accounts. It is submitted by the Applicant that where an informal sublease or arrangement exists for accommodation, as was the review applicant’s evidence, it is unsurprising that such records do not exist. Further, it is submitted that there was independent evidence of the lessee of the premises supporting the review applicant’s version, but that the Tribunal gave ‘no weight’ to it because of the absence of formal evidence of the kind referred to above. The review applicant submits that the findings made by the Tribunal relating to the non-existence of the lease demonstrates bias.
Thirdly, the Tribunal rejected the claims made by the review applicant that she was not aware that the visa applicant’s brother was travelling on the same aircraft on a flight between Vietnam and Sydney during 2005. The Tribunal found:
I am satisfied that the review applicant’s explanation about her travel back to Australia in 2005 alone is an invention made in order to obtain the visa sought.
It is submitted that the review applicant’s explanation that she did not know her fiancé’s brother when he travelled on the same plane from Vietnam to Australia could not assist the visa applicant in obtaining the visa sought and thus could not be construed as an invention designed to assist in obtaining such visa. The visa applicant claims that the Tribunal’s finding on this issue demonstrates that the Tribunal looked for reasons to reject the application and as such apprehended bias exists.
The review applicant also challenges the Federal Magistrate’s formulation of the test of apprehended bias, when his Honour found:
To establish a ground for apprehended bias normally requires some indication in the proceedings prior to the decision that the Tribunal may have approached its decision with a closed or pre-determined mind.
The review applicant submits:
The test for apprehended bias is whether a fair-minded person, informed of all the relevant facts, would reasonably believe that a decision maker failed to bring an open mind to its task.
Finding
It should be observed from the outset that the review applicant acknowledged before the Federal Magistrate that no complaint was made concerning the conduct of the hearing before the Tribunal to give rise to any ground of apprehended bias and that the sole complaint arose out of the findings of the Tribunal. It is submitted that the adverse credibility findings were so inadequate that they amounted to apprehended bias.
The correct test for apprehended bias is that stated by the High Court of Australia in Re Refugee Review Tribunal and Another; Ex parte H and Another (2001) 179 ALR 425. At [27] the Court observed:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.
(See also: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293–294; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263)
Apprehended bias cannot be proved on the mere basis of a decided judgement. To establish an apprehension of bias, some evidence must exist which suggests that during the proceedings themselves the decision-maker may have approached the issue to be decided with a closed mind. The fact that a judgement is adverse to one party does not establish apprehended bias against that party. The apprehension must arise out of conduct occurring during the decision-making process before the decision is made. That is, there must be some indication of judicial predisposition such that a fair-minded lay observer ‘might reasonably apprehend’ that the decision-maker might not be impartial. If not, there can be no occasion for an apprehension of bias.
The Court will now address the three specific issues relied upon by the review applicant as constituting a ground for apprehended bias within the Tribunal decision.
The first issue relates to the evidence concerning the date on which the review applicant met the visa applicant’s family. The review applicant’s evidence asserts that such meeting occurred in Vietnam in January 2007. However when interviewed by the Tribunal Member, the visa applicant said that the review applicant met his parents after the review applicant arrived in Vietnam in November 2006. The review applicant attempted to clarify the date of the meeting. In her letter forwarded to the Tribunal in response to a letter issued pursuant to s 424A of the Migration Act 1958 (Cth):
I told the Tribunal that I had met my fiancé’s family in January, 2007 but my fiancé stated that I first met his parents after I arrived in November, 2006.
I travelled to Vietnam in November, 2006 and stayed at my place. I did not go to my fiancé’s place straight away until in January, 2007, I came to visit his family, I met his parents and I celebrated my son’s birthday at his place.
I believe that he stated that I met his parents after I arrived in November, 2006, was correct. This is because, after I arrived in November, 2006, I stayed at my place for a while and then visited his parents.
In respect of such evidence, the Tribunal found:
I do not accept that the visa applicant and the review applicant provided consistent information in relation to when the review applicant met the visa applicant’s parents.
Smith FM acknowledged that he did not have the exact words used by the visa applicant as translated during Mr Ta’s evidence given by telephone. His Honour acknowledged that it may well have been open to the Tribunal to conclude that Mr Ta gave evidence ‘implying a first meeting prior to January 2007’. His Honour found that if the visa applicant intended to inform the Tribunal that the review applicant met his parents prior to January 2007, the Tribunal could have expected him to have so informed them.
The Court finds that whilst technically the two answers might not be inconsistent, the Tribunal was entitled to receive a direct and clear response rather than having to construe the meaning of the two statements in order to read them as being consistent. Considering the tortured meaning which the review applicant suggests is the correct construction, the Court does not find that his Honour was wrong, in the sense referred to in House v The King (1936) 55 CLR 499 at 504-505, in finding the statements inconsistent.
The Court also observes that this finding of inconsistency went, amongst other findings, to a wider finding of the Tribunal that the witnesses were not witnesses of truth. This is a finding of fact, with which this Court cannot interfere: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].
The Court also concurs with Smith FM that even if the Tribunal’s conclusion was wrongly drawn, it does not lend support to a conclusion that the Tribunal had prematurely determined the application before it.
As to the evidence concerning the review applicant’s alleged sub-lease, the Tribunal’s finding was based upon the unconvincing evidence provided to it. The review applicant said that she had asked her friend Anh if she could stay with her and her boyfriend Pham Hong Phong at their flat. She remained in these premises but stated that she did not know that the visa applicant’s brother was the landlord until she met him in Vietnam in March 2007. Pham Hong Phong claimed in a letter sent to the Tribunal dated 4 March 2009 that he and his girlfriend rented the premises; that the review applicant asked if she could use their address for correspondence purposes upon the birth of her son, and that the review applicant subsequently moved in to live with them. However, no rent statements or electricity accounts were produced by him to show that he had any lease from the review applicant’s brother. Nor did the review applicant produce any sublease from the couple themselves, or provide any documents to support her claim. The Tribunal found that there was no independent evidence to support the review applicant’s assertion that she leased the premises as a co-tenant or sub-tenant. Whilst it might have been understandable that a sub-tenant would not have records of rent payments or payments towards the upkeep of the flat, the fact that no lease or other records of any kind including bank or rent statements were produced from the couple who claimed to be tenants, justified the giving of no weight to Mr Phong’s letter.
Based upon that evidence the Tribunal concluded that it was satisfied that the review applicant lived in the premises owned by the visa applicant’s brother since at least 26 November 2003. As was found by Smith FM, such finding was not irrational. This is a finding of fact, with which this Court cannot interfere: see NAHI at [10].
The Court now refers to the third factual issue relied upon, namely the review applicant’s knowledge that the visa applicant’s brother travelled on the same aircraft from Vietnam.
Before the Tribunal the review applicant claimed that the visa applicant’s brother began to visit her after her engagement in approximately 2007. However, the facts showed that she had travelled to Australia from Vietnam in 2005 on the same flight as the review applicant’s brother. The review applicant denied travelling with the brother, claiming that she did not sit with him and did not see him at the airport. However, on 4 April 2005 they were both timed at Australian customs together. The review applicant disputed such fact. In response to such matter put to her by letter issued under s 359A of the Act, she responded, ‘I officially met Tah Ngoc Oanh, elder brother of my fiancé and Oanh’s wife in Vietnam in March, 2007’. Based upon such evidence, the Tribunal made its factual finding that the witness was not a witness of truth.
Matters of fact relied upon by the review applicant are essentially matters for the Tribunal and this Court cannot interfere with factual findings: see NAHI at [10]. It is the function of the Tribunal to assess the credit of the witnesses: see Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 at [67], and the issues now raised, at their highest, amount to challenges of the factual findings of the Tribunal. Even if the findings of the Tribunal were factually erroneous, that does not constitute a ground of apprehended bias.
The Tribunal’s findings have been made as a result of the Tribunal’s assessment of the evidence. No evidence has been adduced which suggests that the Tribunal did not bring an open mind to the decision making process such as to give rise to an apprehension of bias. The Court accordingly finds no merit in this proposed ground of appeal.
Ground 2: Best interests of the child
The second ground of appeal challenges the Federal Magistrate’s finding in relation to the review applicant’s claim that the Tribunal failed to take into account, as a primary consideration, the best interests of the review applicant’s child or to provide procedural fairness in relation to such consideration.
As to the allegation of denial of procedural fairness in relation to this claim, such allegation was abandoned by the review applicant’s legal representatives before the Federal Magistrate Court. Accordingly leave to raise this issue is required if it is sought to be pressed, in addition to the leave that is the subject of this application. No reasons have been advanced in support of such an application for leave and Mr Turner did not seek to pursue such claim.
The review applicant submitted that the Tribunal had effectively made the welfare of the child an issue in the proceedings. During the hearing the Tribunal had inquired of the review applicant’s son. In response the review applicant informed the Tribunal that the visa applicant was very good to him and that her son referred to the visa applicant as ‘uncle’. She said that the visa applicant had bought her son various toys including an aircraft and a train. Accordingly the review applicant submits that a relationship existed between the visa applicant and the boy, which was shown by such evidence to be a genuine relationship.
The review applicant relies upon the United Nations Convention on the Rights of the Child which was ratified by the Commonwealth Executive in 1990 and entered into force for Australia on 16 January 1991 (‘the Convention’). The review applicant specifically refers to article 3(1) thereof which provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
The review applicant submits that the Convention applies, and the Minister must treat the best interests of the child as a primary consideration.
The Federal Magistrate understood this submission to be an attempt by the visa applicant to argue that the best interests of the child, as part of the family unit, is a matter for consideration in determining the issue referred to in Schedule 2 cl.300.216 of the Regulations, namely that;
The Minster is satisfied that the parties genuinely intend to live together as spouses.
The Federal Magistrate found the ‘child’s best interests’ is not one of the primary or secondary considerations prescribed by cl.300 of Schedule 2 to the Regulations. Further, given the Tribunal found against the claims of the review applicant on grounds of credibility, the Federal Magistrate held that all other issues were of no consequence: see ApplicantWAEE at [47].
Finding
The only inquiry to be made turns on the visa and review applicant’s genuine intention to live together as spouses. The best interest of the review applicant’s son was not a relevant consideration in the making of that inquiry.
On proper construction, the Minister’s decision is not an ‘action’ that concerns children as contemplated by the Convention. The Court finds that the Convention has no application in the present proceeding.
Further, since the Tribunal found that the applicants are not witnesses of truth, the issue raised by the second ground of appeal, which is dependant upon factual findings being made in favour of the review applicant, has no prospect of success.
Ground 3: Did the Federal Magistrate err in regard to the Tribunal’s discussion of reg.1.15A?
It is submitted by the review applicant that Smith FM erred by concluding that the Tribunal’s consideration of the conditions to reg.1.15A did not form part of the reasons for the Tribunal’s conclusion.
In assessing the requirements of the visa, the Tribunal considered the criteria set out in cl.300 of Schedule 2 of the Regulations. As a condition to the grant of the relevant visa, the decision-maker, pursuant to cl.300.216, must be ‘satisfied that the parties genuinely intend to live together as spouses’. The Tribunal analysed this criterion in light of the considerations relevant to establishing a current spousal relationship as set out in reg.1.15A(3). The Tribunal referred to the Procedures Advice Manual 3 (‘PAM 3’) policy and found that while the mandatory aspects of reg.1.15A(3) did not apply to Subclass 300 visa applications, reg.1.15A should have application so far as practicable.
Smith FM considered that where no claim was made of a current spousal relationship, it could be ‘potentially misleading for a decision-maker to examine their current or past circumstances against the matters listed in regulation 1.15A’. His Honour commented that the Tribunal’s discussion and findings ‘have some obscurity’ in relation to the application of cl.300.216 of Schedule 2 of the Regulations but was not persuaded that their discussion resulted in jurisdictional error. His Honour observed that the Tribunal was correct in stating that it was not bound to address the matters referred to in reg.1.15A unless they were ‘applicable’. His Honour referred to the Tribunal’s reasons and said that he did not read the Tribunal’s ‘inconclusive findings referring to reg.1.15A(3) as providing, or forming part of, its reasons for its conclusion that Mr Ta did not meet cl.300.216’.
The review applicant submits that reg.1.15A has no role to play in the inquiry being made by the Tribunal and that such test is only relevant where persons are already married or in a defacto relationship. Accordingly, the review applicant submits that by applying such criteria the Tribunal fell into jurisdictional error. The review applicant also challenges the finding of the Federal Magistrate that the Tribunal’s findings in regard to reg.1.15A did not form part of its reasons.
The first respondent further submits that when the Tribunal referred to several of the criteria in reg.1.15A, it merely referred to the evidence and the claims which were put before the Tribunal; that no conclusive decision was made with regard to them, and that it is quite clear that the Tribunal’s decision concerning the proposed marriage of the review applicant and the visa applicant was made upon the issue of credibility and not its consideration of reg.1.15A. The first respondent submits that the issues in reg.1.15A were unnecessary for the Tribunal’s deliberation in view of its finding on the credibility of the applicants and that any such findings were ‘subsumed in findings of greater generality’: see Applicant WAEE at [47].
Finding
The Tribunal’s application of the ‘applicable’ aspects of reg.1.15A to the review applicant’s application was based upon the implementation of the PAM3 policy which directs the decision-maker to make an assessment of the application for a ‘Prospective Marriage’ (Temporary) visa (Class TO, Subclass 300), as far as practicable, against reg.1.15A .
The Tribunal considered the claims made by the review applicant against each of the criteria referred to in reg.1.15A, but the concluding paragraphs of the Tribunal’s finding make clear that the basis for the rejection of the review applicant’s claims was not based upon any non-compliance with such requirement but rather were based on findings of credit. The Tribunal said:
71.In light of my finding that the review applicant and the visa applicant are not witnesses of truth, I am satisfied that the engagement and the intended wedding have been contrived in order to obtain the visa sought.
Smith FM observed that in some instances, for example those referred to in Pham v Minister for Immigration [2009] FMCA 287 at [12]-[14], a discussion of the indicia in reg.1.15A would assist in the discovery of the current intentions concerning future cohabitation of spouses. However, as his Honour observed, in this instance the Tribunal had found that the proposed marriage was a sham and that such conclusion was based on issues of credit as opposed to an inconclusive finding based upon the criteria of reg.1.15A.
FM Smith did not err in ‘not read[ing] the Tribunal’s inconclusive findings referring to reg.1.15A(3) as providing, or forming part of, its reasons of its conclusion that Mr Ta did not meet cl.300.216’. The Court finds that in light of the Tribunal’s finding that the applicants were not witnesses of truth, any findings relating to reg.1.15A did not form part of the Tribunal’s reasons for rejecting the visa application. That is, the discussion by the Tribunal of reg.1.15A included under the heading ‘Findings and Reasons’, does not detract from the Tribunal’s reasons for dismissing the application, namely the review applicant’s lack of credit.
Lastly, even if the considerations for dismissing the claim were erroneous, the Court would not, as a matter of discretion, declare that the Tribunal’s decision should be set aside even if it erred by its inclusion of the discussion of reg.1.15A. Not all errors of law necessarily justify the Court’s intervention: see BTR PLC and Another v Westinghouse Brake and Signal Company (Australia) Ltd and Others (1992) 34 FCR 246, which held at 254 that ‘An immaterial error of law will not vitiate the decision of the Tribunal’.
As such the Court finds that there is no reviewable error in the Tribunal’s discussion of reg.1.15A.
CONCLUSION
The Court finds that the grounds of appeal that the applicant would seek to rely on could not succeed. Accordingly, special reasons are not shown to exist. It follows that leave to appeal is refused.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 17 March 2010
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