Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1666
•21 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1666
File number(s): BRG 993 of 2019 Judgment of: JUDGE EGAN Date of judgment: 21 July 2021 Catchwords: MIGRATION – Allegations of bias against Tribunal member – no basis for allegations – claim that Tribunal member erred in making a factual error in his reasons and that such error constituted jurisdictional error – finding that even if an error was made, such error could not reasonably have resulted in a different decision being made – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth).
Migration Regulations 1994 (Cth) Sch 4, PIC 4020.
Cases cited: Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337.
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 131 FCR 102.
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
NADR v Minister for Immigration and Multicultural Affairs [2002] FCA 361.Number of paragraphs: 29 Date of last submission/s: 15 July 2021 Date of hearing: 15 July 2021 Place: Brisbane Counsel for the Applicant: Ms G. Costello QC Solicitor for the Applicant: Da Gama Pereira and Associates Pty. Ltd Counsel for the First Respondent: Mr G. Johnson Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
BRG 993 of 2019 BETWEEN: WEIJIANG CHEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
21 JULY 2021
IT IS ORDERED THAT:
1.The Further Amended Application for Review filed on 23 March 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $10,000.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
The applicant is a citizen of the People’s Republic of China. He was an applicant for a Skilled (Provisional) (Class VC) Visa under the provisions of the Migration Act 1958 (Cth) (‘the Act’).
On 17 April 2019, a delegate of the Minister refused to grant the application. The applicant sought review of the decision of the delegate by the Administrative Appeals Tribunal (‘the Tribunal’).
At a hearing on 17 October 2019, the Tribunal gave oral reasons for its affirmation of the decision of the delegate. Written reasons were handed down by the Tribunal on 31 October 2019.
On 19 November 2019, the applicant filed an Originating Application for Review of the decision of the Tribunal. At the hearing of the application for review before the Court, the applicant relied upon a Further Amended Application for Review filed on 23 March 2021, the grounds of which were as follows:
“1. A reasonable bystander might apprehend - from the Tribunal's frequent interruptions, apparent closed mind to the evidence, scornfulness, exaggeration, observation that the applicant's evidence was "unusual", refusal to allow the applicant to use an interpreter, and failure to consider evidence favourable to the applicant that was before it - that the Tribunal might not have brought at an open mind to its task.
2. The decision was irrational, unreasonable or intelligible in that no reasonable decision maker could have proceeded on the premise that the applicant had been convicted twice or that he had been convicted of common assault.”
Consideration of Grounds for Review
For the purposes of considering Ground 1 of the Further Amended Application for Review, the Court listened to relevant parts of the Tribunal hearing evidence (as identified by Ms Costello of Queens Counsel) by means of an audio recording of same. [1] Whilst listening to the audio recording during the Court hearing, the Court had contemporaneous access to the transcript of such proceeding. [2] The Court also had access to a table, ordered by the Court to be prepared by the parties, which firstly contained particulars of the applicant’s allegations of conduct said to give rise to apprehended bias, and which secondly contained the first respondent’s responses to such allegations. [3]
[1] Exhibits 3 and 4.
[2] Annexure WC1 to the Affidavit of the Applicant filed on 9 March 2020.
[3] Exhibit 2.
The applicant relied upon the decision of the High Court in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 for the well accepted legal proposition that: [4]
“[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.”
(footnotes omitted)
[4] At [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Further reliance was placed by the applicant upon the judgments of Allsop CJ and Robertson J in the Full Federal Court decision in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 where, at [4] and [91] respectively, it was said by their Honours:
ALLSOP CJ
“[4] A person in the appellant’s position, if the possibility of the truthfulness of his need for protection is to be assumed, as the undergoing of the very process of review dictates, is entitled to an apparently fair and dispassionate hearing, free of the appearance of premature assertions of disbelief, laced with moralising speeches. That does not mean that robust, vigorous questioning is not permitted, indeed perhaps called for. If a body of evidence or history during the process of the hearing lacks credibility or coherence, the Tribunal may feel bound, in fairness, to point that out. That is, however, not what happened here. The Minister argued that the assertions of disbelief and other statements by the Tribunal should be understood as expressions of difficulty with the evidence and requests for further assistance. No fair-minded observer, recognising the position of the applicant for a visa, would have so understood them.”
…
ROBERTSON J
“[91] Dealing with these contentions in turn, no doubt it is correct to say that occasional displays of impatience and irritation or occasional sarcasm or rudeness on the part of the Tribunal, while unfortunate and falling short of the desirable standards of good administration, do not of themselves establish disqualifying bias. But such matters are not irrelevant. Indeed I agree, with respect, with Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 902 where his Honour said at 10-11, in relation to a claim of actual bias:
It is obviously undesirable for decision-makers in the course of the hearing before them to be sarcastic or to make fun or mockery of witnesses or to show high personal indignation. In some cases this may be sufficient to establish actual bias; but generally it would be simply part of the factual matrix that must be taken into account…”
Reliance was also placed by the applicant upon VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 131 FCR 102 at [82] per Kenny J where it was said:
“[82] I am constrained to hold, however, that, while the Tribunal had a duty to give the applicant an opportunity to respond to matters adverse to his claim, in this case, it overstepped the boundary. This case is relevantly different from Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141 (“Applicant VCAT of 2002”): see [38] per Gray ACJ, North and Gyles JJ. The vice was not that the Member had an adverse opinion about the applicant’s claim before the hearing began (or, as noted above, that she put adverse matters to him in the course of the hearing). The Tribunal will, in all likelihood, have an unfavourable view of an applicant’s claim when the hearing commences: see s 425(1)-(2). The vice in this case was that, by the Member’s conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim - that he had fabricated his account. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave. As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the Member’s questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts.”
It was submitted on behalf of the applicant that when the conduct of the Tribunal member, and the language used by the Tribunal member, were considered as a whole, the Court ought to conclude that the decision was effected by bias, “either actual or apprehended”. [5] It was further submitted that:
“The Tribunal engaged in conduct during the hearing that would lead a reasonable and fair minded observer to apprehend that the Tribunal was disinterested [in] hearing the applicant’s evidence as demonstrated by the Tribunal’s frequent interruptions of the applicant including while he attempted to answer critically relevant questions.” [6]
[5] Paragraph 25 of Applicant’s submissions filed on 19 March 2021.
[6] Paragraph 26 of Applicant’s submissions.
It was further submitted that the Tribunal member’s conduct “demonstrated scorn for the applicant and disinterest in his testimony”[7], that the Tribunal commenced the hearing with gratuitous criticism about the applicant’s late retention of a migration agent, and further, that the Tribunal member had prevented the applicant from using an interpreter. [8]
[7] Paragraph 27 of Applicant’s submissions.
[8] Paragraph 28 of Applicant’s submissions.
Exhibit 2 helpfully particularised the parts of the audio recording which were the subject of criticism by the applicant of the Tribunal member’s conduct, tone, manner, voice level and language during the course of the Tribunal hearing. The applicant also identified, in written submissions, those parts of the transcript said to constitute the bases on which the Court ought to find that the Tribunal member was biased.
As to the specific matters raised at [8] – [19] inclusive of the applicant’s written submissions, about which there were also oral submissions forcefully made by Ms Costello of Queens Counsel, the Court finds as follows:
Interruptions
(a)Tribunal members play a vital role in the administrative review of departmental decisions. They annually deal with hundreds of applications for review, and they are busy. They are required to conduct a fair hearing but with reasonable expedition. The review demands placed upon them are significant.
(b)It is trite that review applicants appearing before the Tribunal vary greatly in their respective abilities to give responsive answers to questions put to them during the course of a hearing. Many applicants are, of necessity, required to be “reigned in”, lest the hearing be unduly prolonged. Tribunal members, by reason of their experience in dealing with such applicants, ought to be given some credit for having an ability to identify those applicants whose attention either needs to be directed toward answering relevant questions, or who otherwise need to be required to be economical in the giving of answers to questions. A loquacious applicant who is unresponsive to questions put to them necessarily wastes Tribunal hearing time.
(c)In the present matter, the Tribunal member did interrupt the applicant on a number of occasions during the course of the hearing, but the Court finds that when the transcript and audio recording are respectively considered as a whole, and contextually, the interruptions were not such as to give rise to unfairness. By way of example, and in relation to page 2 of the transcript, which was submitted by senior counsel on behalf of the applicant to evidence interruptions on three (3) occasions, the transcript was relevantly as follows:
“MEMBER: Thank you. Good morning, Mr Chen. Welcome to the tribunal. Mr Chen, how good is your English? No, no, how good is your English?
THE INTERPRETER: Not good enough.
MEMBER: You've been in Australia since 2014. You studied a Master's of Professional Accounting, a Master's of Business Administration. You've applied for a 485 visa which requires you to have conversational English and you say you can't speak English.
THE INTERPRETER: It's not that I can't speak English. It's just my English is not good enough to proceed in this sort of - - -
MEMBER: I see. Then perhaps you're not eligible for a 485 visa. If you can't speak English - English is a requirement for a 485 visa.
MR CHEN: No, actually, I can speak English but my English is not reaching the legal level. That's why I require a - - -
MEMBER: What do you mean "the legal level"? What's your IELTS score - overall band score?
MR CHEN: Seven.
MEMBER: Seven. I wonder if you're playing games with me, Mr Chen. Someone with an overall band score of seven has a good command of English, however, you want us to use the interpreter for everything, do you?
MR CHEN: I- I can talk to you back. If something I'm not sure how to express I ask the interpreter. Is that okay?
MEMBER: No, you won't ask the interpreter any questions. The interpreter is here purely to interpret.
MR CHEN: Yes, as I understand - - -
MEMBER: If you are happy to conduct the hearing in English what we will do is we will conduct the hearing in English. If there is anything you don't understand we'll use the interpreter.
MR CHEN: Yes, that's what I mean.
MEMBER: It 's important you understand everything. So if there is anything you don't understand you must stop me and we'll use the interpreter; do you understand that?
MR CHEN: Yes. Okay.”
(d)The Tribunal member was, at the commencement of the hearing, seeking to limit the use of the applicant’s interpreter to those occasions where the applicant did not understand what was being said or put to him. The Tribunal member, in that regard, had noted that the applicant had studied in Australia since 2014, that he had obtained a Master’s Degree in Professional Accounting, and that he had obtained a Master’s Degree in Business Administration. The Tribunal member had also noted that the applicant’s IELTS band score for English was Level 7, something which was regarded by the Tribunal member as evidencing a good command of English. A reading of the whole of the transcript demonstrated that over a period of approximately 34 minutes, the applicant was only required to call upon the interpreter for translation assistance on eight (8) occasions. Further, that position was successfully adopted after the applicant had agreed to his only using the interpreter if he relevantly didn’t understand anything.[9]
[9] Transcript p. 2.29 – 3.3.
(e)Mostly, the applicant spoke, sometimes at length, [10] uninterrupted by the Tribunal member, throughout the whole of the hearing. Where necessary, the Tribunal member reasonably allowed the applicant to use the interpreter to translate what was being said to him. For example, when comparing what was recorded as having been said at transcript page 7 with the audio recording of such exchange, [11] the whole of the following was encouraged by the Tribunal member to be translated for the applicant’s assistance:
[10] Transcript p. 5.35 – .45; p. 6.8 - .33.
[11] Transcript p. 7.33 - .45.
“MEMBER: No. What we will do - it's - I realise it's a little more complex of a concept so what we will do is I will get the translator to repeat what I have said to you in Chinese. So if it is found that somebody has provided evidence that is false or misleading in a material particular, the requirement to satisfy that criteria can be waived if there are certain circumstances. Those circumstances are that there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. And so my question to you here today is that if the tribunal should find that you have breached public interest criteria 4020 do you believe that circumstances exist that the requirement to satisfy that criteria should be waived?”
(f)The Court finds that the above translation by the interpreter not only evidenced that the Tribunal member allowed the interpreter to be used where appropriate, but also that the Tribunal member recognised that that ought to be done where something that he described as being “a little more complex of a concept” was going to be put by him to the applicant.
(g)As to what was asserted to be a “rude interruption” at transcript page 10, the Court finds that the Tribunal member (faced with an applicant who had admitted that his visa application form dated 26 February 2018 had incorrectly recorded that he had not been convicted of an offence when he had been) was engaging in a robust exchange with the applicant for the purpose of seeking to elicit the true circumstances in which such incorrect answer was given by the applicant. In such circumstances, the Court finds that the Tribunal member was entitled to do so, and that he wasn’t rude.
(h)The Court finds that, as a whole, and contextually, the interruptions did not evince unfairness in the conduct of the hearing on the part of the Tribunal member.
Disinterest in the Evidence
(a)Complaint was made on behalf of the applicant about the Tribunal member having said, at transcript page 8.29 – “MEMBER: What about her? How would it impact her if the decision is made to refuse your application?” – in relation to the applicant having suggested during the course of the hearing, as recorded at transcript page 8.22, that the applicant was the best friend of a woman who might be able to email a reference to the Tribunal.
(b)First, had the applicant wished to put any additional material before the Tribunal prior to the Tribunal hearing, it was the responsibility of the applicant, or the applicant’s migration agent/lawyer, to ensure that that was done in a timely way, rather than asking the Tribunal member to accept such documentation by email, on the run, either during the course of the hearing, or after the conduct of the hearing. Secondly, at transcript page 8.35 - .45, the Tribunal member properly pointed out to the applicant that any innocent mistake in the provision of a false or misleading answer could be accepted as a valid reason for the error, such that the PIC 4020 criteria could be considered to have been met. In doing so, the Tribunal member was, by reference to what the Tribunal member had translated as recorded at transcript page 7.34 - .45, properly directing the applicant’s attention to matters relating to both the provision of false or misleading information, as well as to what constituted compelling or compassionate circumstances justifying waiver of the PIC 4020 criteria. Listening to the applicant’s immediate response to what had been put to him by the Tribunal member, it was apparent that the applicant fully understood and appreciated what the Tribunal member was putting to him when the applicant replied:[12]
[12] Transcript p. 9.1.
“MR CHEN: Yes, because I didn’t make the mistake purposefully.”
(c)The Court finds that, as a whole, and contextually, there was no disinterest in the evidence on the part of the Tribunal member so as to evince unfairness in the conduct of the hearing.
Interpreter Issue
(a)The applicant complained that the Tribunal was “negative and hostile about the applicant’s desire to use an interpreter” (referencing page 2 of the transcript) and that the Tribunal had “later refused to allow translation” (referencing page 7 of the transcript). [13]
[13] Paragraph 13 of Applicant’s submissions.
(b)The Court finds that the exchange between the Tribunal member and the applicant at transcript page 2 was not hostile. The Tribunal member, as earlier held, was reasonably attempting to regularise and expedite the hearing by not unnecessarily taking up time by using an interpreter. As it transpired, the Tribunal member’s approach was correct, measured, and appropriate. In so formalising the hearing before him, the Tribunal member was necessarily, but reasonably, negative.
(c)Further, there is no factual basis for the assertion that the Tribunal member refused to allow translation at transcript page 7, notwithstanding that the Tribunal member at .34 first said “No” immediately after the applicant asked whether he could “double-check” something with the interpreter. As earlier held, the Tribunal member in fact facilitated the translation at transcript page 7.34 - .45 in respect of that which was considered by him to be a complex concept. Having had what the Tribunal member had said to him translated to him by the interpreter, the applicant was, demonstrably, able to be immediately responsive, as recorded at transcript page 8.1 - .3. There is no merit to such assertion.
(d)The Court finds that, as a whole, and contextually, there was no unfairness on the part of the Tribunal member in relation to the way in which the interpreter was used during the course of the hearing.
Irrelevant criticism about appointing an agent
(a)It is not unusual for administrative decision makers at first instance – and sometimes even judicial officers – to express frustration about the late engagement of migration agents/lawyers by applicants when listing dates have been identified to all parties well in advance of a hearing. Once it has been established, at an early stage of any hearing, that there has been the late engagement of a relevant representative, it is understandable that the decision maker would be concerned about the prospect of an adjournment of the hearing. Time wasted in such circumstances is valuable hearing time lost to the detriment of other litigants. Such considerations weigh heavily upon those devoted to fulfilling their statutory duties.
(b)In the present matter, the following timeline is of some relevance for the purpose of understanding why, in frustration, the Tribunal member might have spent some short period of time in asking why the applicant, via his late appointed migration agent, only made the Tribunal aware of such appointment on 15 October 2019 – two (2) days before the scheduled hearing on 17 October 2019:
(i)2 October 2019 – INVITATION TO ATTEND HEARING emailed to applicant. [14]
[14] Court Book (CB) pp. 75 – 77 inclusive.
(ii)9 October 2019 – applicant emailed visa office and attached Response to Hearing Invitation Form. [15]
[15] CB pp. 80 – 83 inclusive.
(iii)14 October 2019 – applicant emailed visa office at 2.32 pm and advised that one Mr Zhao would be appearing as his representative at the hearing on 17 October 2019. Attached to the email was an “Appointment of Representative” form.
(iv)14 October 2019 – applicant emailed visa office at 4.15 pm and advised that the email address of his representative was incorrectly recorded on the Appointment of Representative form. The correct email address was provided. [16]
[16] CB pp. 84 – 86 inclusive.
(v)15 October 2019 – migration agent emailed visa office at 4:33 pm to request access to documentation held by Tribunal. A request was made for the documentation to be emailed to the representative prior to the close of business on 16 October 2019. [17]
[17] CB pp. 87 – 89 inclusive.
(c)The applicant seems not to have engaged a representative to assist him until at least 14 October 2019 – some twelve (12) days after receiving notice by email that the hearing was scheduled for 17 October 2019. Having noted the delay in a short exchange, the Tribunal member progressed the hearing by moving onto a different topic.
(d)Having listened to the audio recording, the Court accepts the correctness of the responses of the first respondent as set out in Exhibit 2 at 4.40 – 6.10 thereof, save that the Court does not accept that the Tribunal member necessarily spoke loudly. The Court’s impression was that the applicant was recorded as having merely spoken less loudly than the Tribunal member. Again, it is trite that some people naturally speak louder than others in circumstances where no anger or aggression ought to be implied. People who find themselves in an unfamiliar environment, such as at a Tribunal hearing, or in a court, when called upon to speak, often speak in a soft voice. Further, there was no evidence as to whether or not the Tribunal member was sitting closer to the recording microphone than the applicant, such that that might have been the explanation for the Tribunal member’s voice level having come across as being louder than that of the applicant. In any event, the Court does not find that the Tribunal member’s voice level was intimidating, overbearing or rude.
(e)The Court finds that, as a whole, and contextually, there was no unfairness on the part of the Tribunal member in the way in which the Tribunal member spoke, or the fact of, the exchange relating to the late engagement by the applicant of his representative.
Tribunal member claimed to have been scornful/unduly negative
(a)The Court accepts the first respondent’s response to the assertion at 5.11 of Exhibit 2 that the Tribunal member’s tone was not angry. The Court finds that the Tribunal member’s reference to his wanting the applicant to be truthful was neither scornful, nor unduly negative, but rather an attempt by the Tribunal member to get the applicant to focus upon the need for him to be relevantly truthful throughout the Tribunal hearing.
(b)The reference may have been unnecessary, but in the Court’s view it did not constitute, contextually, evidence of bias.
Claims relating to the use of the word “unusual” at [16] of the Tribunal’s reasons and Claimed Armed Robbery Exaggeration
(a)At [16] of the Tribunal’s reasons, it was open for the Tribunal member to categorise the applicant’s claims as being unusual. At the least, the Tribunal member was seeking to elicit from the applicant why, in the light of his having been convicted of an offence in Australia, the applicant would have raised the issue of such matter only resulting, in his home country, in the conduct of some kind of culturally acceptable mediation.
(b)The Tribunal member, at transcript page 9.45 – 11.11, was exploring the possible motivation for the applicant providing an incorrect answer to a question relating to past convictions in his visa application form. In assessing whether the applicant had made an honest or innocent mistake or not, the Tribunal member was entitled to test him on that issue, however uncomfortable that testing might have made him, or his legal advisers, feel. The transcript relevantly provided as follows: [18]
[18] Transcript p. 9.45 – 11.11
“MEMBER: I see. All right. But the application on 26 February 2018, you completed it and you answered, in answer to the question:
Has the applicant ever been convicted of an offence in any country including any conviction which is now removed from the official record?
You answered "No".
MR CHEN: Yes, because I didn't know that was - - -
MEMBER: I see. If you did know and you think you had declared it, what do you think they might have done?
MR CHEN: Sorry, can you repeat?
MEMBER: If you did know - yes, I've got a conviction, I should tick yes - what do you think they might have done?
MR CHEN: You mean if know and I do tick the - - -
MEMBER: If you put on the application, "Yes, yes, yes, I've been charged with domestic violence and been convicted, found guilty, and stalking", yes; what do you think they might have done? They might have considered whether or not we'll give this man a visa, whether he's suitable for a visa.
MR CHEN: To be honest, I think ifl did know and I declare they will still give me the visa because that case is not - it is not - it's not that serious because - - -
MEMBER: I beg your pardon? It's not that serious?
MR CHEN: No, no. I- I - I mean because- I don’t know how to say, because there was some - because some - some legal case may - may impact the visa but some may not. So I did know the conviction, I will declare. Because I - - -
MEMBER: And you think common assault is not something you should be concerned about.
MR CHEN: No, no. Of course, I think the visa ... .. will consider. Yes, of course. But like, you know, some - some case may- may affect and I get refused because of that. But some may not so if you really ask me I think that case will not impact. No, no, no. I mean - sorry for my English. It's not my first language. I mean, if they really ask me ..... visa and I - I saw this case and I will reject or not; if you ask me that case I think I will give the visa.
MEMBER: No worries. What about if it was armed robbery?
MR CHEN: It was?
MEMBER: What about if it was armed robbery; someone goes into a shop with a gun?
MR CHEN: That one he will reject.
MEMBER: Sorry?
MR CHEN: That one will be rejected - - -
MEMBER: Why? Why? What's the difference?
MR CHEN: Because that one is serious.
MEMBER: So is common assault.”
(c)The Tribunal member’s reference to armed robbery by way of comparison to a conviction for common assault was a legitimate means of testing the applicant’s appreciation of the relative seriousness between the two offences. The use of such comparison elicited from the applicant an answer that he did understand that the failure to make reference to an armed robbery conviction would have resulted in a visa rejection. The Tribunal member did so in the context of the applicant’s earlier evidence to the effect that a conviction for common assault was “not that serious”. [19]
[19] Transcript p. 10.24.
(d)At [14] – [21] inclusive of its reasons, the Tribunal dealt with such issue, and gave reasons for finding that the PIC 4020 criteria should not be waived, as follows:
“[14] So in considering your case, in support of your application for the visa that was granted in April 2018, which was current until 31 January 2019, and therefore held in the period of 12 months before your current application, in response to the question: Has any applicant ever been convicted of an offence in any country, including any conviction which is now removed from the official record? You responded “No”.
[15] Evidence became available to the Department that you had been charged and convicted in 2015 of two charges. The first being common assault (Domestic Violence) for which you were convicted and fined $880, and a charge of stalking intimidate intended fear physical harm for which you were convicted and placed on a 12 month good behaviour bond.
[16] When asked to comment on this potential adverse information you said “I did not realise that the penalty that I got was a conviction and I had no intention of misleading the Department”. You today have made some unusual claims. You say “One of the reasons for the outcome is cultural differences between Australia and China". And when asked what you meant by that you say "Well, in China I don't believe that you would get the same penalty that I got here but you would have to go to mediation".
[17] It concerns me that you seem to downplay the importance of what has happened here. What you have also said was "I am embarrassed about it and it is not something that I wanted to raise" and I can understand that, and I believe that embarrassment is one of the reasons you did not mention it in the application.
[18] Having considered the evidence available, the tribunal shares the view of the delegate, that firstly, the question in the application was clear and concise. Secondly, someone who has recently completed two Masters degrees in Australia both courses delivered in English and has provided evidence of successfully meeting the English language requirements for the grant of a subclass 485 visa, even though your English may have improved since the date of that application, which was back in February last year, I believe that somebody in your position would clearly understand the meaning of the question.
[19] And I believe there are reasons why you would not divulge that information. I put it to you that it may well have led somebody considering your application to give it greater review had you answered the question "Yes". You say "No, I think they would have granted it anyway". Well, that is a point of conjecture but the tribunal finds the answer that you provided was provided intentionally and that it was false or misleading. I therefore believe that there was purposeful falsity in your answer.
[20] The tribunal is therefore satisfied that in support of your application you have provided evidence that is false or misleading in a material particular in breach of Public Interest Criteria 4020.
[21] In considering whether 4020 should be waived there is not evidence before the tribunal that would satisfy the circumstances that would lead to a waiver and so in the circumstances as you do not meet clause 485.216 it is the decision of the tribunal to affirm the decision under review, which means the primary decision to refuse your visa stands.”
(e)The Court finds that, as a whole, and contextually, there was no unfairness on the part of the Tribunal member in the way in which the Tribunal member used language or made comparisons for the purpose of testing the applicant on an important issue before the Tribunal.
Claim that Tribunal member ignored evidence/engaged in a “playing games” exercise
(a)The Tribunal member was entitled to test the applicant on the questions as to whether, firstly, the applicant was proficient enough in the English language so as to understand the question being asked of him, and secondly, as to whether he had or had not innocently provided a false answer in his visa application form, by asking the applicant how it could have been an innocent mistake. That was the crux of one of the issues before the Tribunal. The way in which the Tribunal approached that task was unexceptional.
(b)The Tribunal did relevantly consider all of the material put before it. At [8] – [9] of its reasons, the Tribunal referred to the three (3) character references provided to it by the applicant. The Tribunal was also aware of the evidence that the applicant gave to the delegate, and the adverse findings of the delegate, in that regard. At [11] of its reasons, the Tribunal recorded that the role of the Tribunal was to “take a fresh look at your application and make a new decision as to whether you are entitled to a 485 visa.” The Tribunal then correctly identified that it first must consider whether the applicant had provided information that was false or misleading in a material particular in relation to a visa, and then, whether the requirement for satisfaction of the PIC criteria ought to be waived.
(c)The Tribunal member did not ignore evidence before him, or otherwise practically trivialise the carrying out by him of his statutory duties.
(d)The Court finds that, as a whole, and contextually, there was no unfairness on the part of the Tribunal member in the way in which the Tribunal member dealt with evidence before him, or otherwise in the way that the Tribunal member sought to elicit responses from the applicant about important issues relating to waiver of the PIC criteria.
It was also submitted on behalf of the applicant that the Court ought to accept the un-contradicted evidence of the applicant that at the point of the hearing when the Tribunal member first raised the comparison between a conviction for common assault, and a conviction for armed robbery (audio recording at 27m 54s), the Tribunal member had “made a shooting gesture by pointing two fingers at me.” [20] As to that allegation, uncontested as it was, the Court is unable to give any weight to such allegation because:
(i)The applicant failed to discharge its evidentiary onus, in that no acceptable evidence of any weight was elicited as to which two fingers were alleged to have been pointed at the applicant, the way in which such fingers were alleged to have been pointed, nor as to how the pointing of two fingers could reasonably, and in any event, have thereby constituted a shooting gesture. For example, if there had been evidence adduced on behalf of the applicant that the Tribunal member has been engaged in anything approaching such activity, and if it had been deposed that the Tribunal member’s thumb was, as part of the alleged shooting gesture, pointed to the ceiling, whilst at the same time it was alleged that the Tribunal member’s index finger on the same hand was pointed toward the applicant, the Court could readily have accepted that such evidence was indicative of a pointing gun gesture, albeit that only one (1) finger would have been pointed at the applicant. Conversely, if the index finger and the third finger of a hand were together to have been pointed at the applicant, then such configuration, without more explanation, would not, in the Court’s view, have constituted a shooting gesture. The evidence before the Tribunal on point was of no assistance for the purposes of this Court’s deliberations.
(ii)Further, there was no independent and objective evidence led by the applicant by way of corroboration of the applicant’s claim when such corroboration, available as the Court infers it was, could have come from the applicant’s representative, Mr Zhao.
(iii)Of further significance is that the audio recording does not record any protest having been made by either the applicant, or the applicant’s representative, at a time immediately after the alleged pointing gesture.
(iv)The lack of particularity in the allegation does not permit of any adverse finding of bias being made against the Tribunal member.
[20] Paragraph 3 of Affidavit of Applicant filed on 14 May 2021.
The Court accepts the submissions of the first respondent in relation to each of the complaints raised in submissions made on behalf of the applicant.
The Court finds that the applicant’s claims in Ground 1 of the Further Amended Application for Review were so made with an eye too keenly attuned to error, and without sufficient appreciation being had as to the multiplicity of ways in which different decision makers go about the task of eliciting relevant information from applicants, and other witnesses, during the course of a hearing, in the fulfilment of their statutory duty. Such was recognised by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] – [47] per French, Sackville and Healy JJ, where it was said as follows:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
The Court further finds that a fair-minded lay observer would not reasonably have apprehended that the Tribunal member had not brought an impartial mind to the resolution of the questions for determination by him. There is no merit to Ground 1 of the Further Amended Application for Review.
As to Ground 2 of the Further Amended Application for Review, the Court has had regard to the National Police Certificate dated 20 December 2018 [21] which disclosed the following court outcomes relevant to the applicant:
[21] CB p. 40.
“Court Court Date Offence Court Result
Downing Centre 11 Mar 2015 Common Assault (Domestic Violence) Fined $880.
Local CourtDowning Centre 11 Mar 2015 Stalk/Intimidate Intend Convicted. Bond to be of
Local Court Fear Physical Harm (Domestic) good behaviour for 12 months”Irrespective of whether the Tribunal had, or had not, erroneously found that the applicant had been convicted of common assault, the Court finds that the applicant had been convicted of stalking as set out above. In such circumstances, even if such considerations had been based upon only one conviction as opposed to two, the same considerations would have been applied by the Tribunal in its deliberations as to whether or not the applicant had innocently and/or mistakenly included false or misleading information in his visa application form.
The Court accepts the first respondent’s submission that it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal member. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
The Court further finds that it was not irrational, unreasonable or unintelligible for the Tribunal to have made the findings it did on the premise that the applicant had been convicted twice. Such finding was open upon a reading of the National Police Certificate in respect of the charge of common assault, where, on such Notice, it was recorded that the applicant had been fined the sum of $880.00. As submitted on behalf of the first respondent, it is usual for an offender to be fined consequent upon the entry of a conviction. The Court further relies upon what was said in the joint judgment of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
Further, even if the Tribunal was in error in finding that the applicant had been twice convicted, as opposed to only having been convicted once, such error could not realistically have resulted in a different decision being arrived at. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
There is no merit to Ground 2.
The Court finds that there was no basis for the claim that the Tribunal member engaged in conduct which gave rise to a reasonable apprehension of bias on his part, or that he conducted himself in such a way so as to evidence actual bias on his part. In NADR v Minister for Immigration and Multicultural Affairs [2002] FCA 361, Emmett J at [16] said as follows:
“[16] A finding of actual bias is a grave and exceptional matter. The accusation of such bias must be firmly established. It cannot be sufficient to establish actual bias to invite a court to find that it would have come to a different decision from the decision-maker. Even factual error or faulty reasoning, notwithstanding that the factual error might be serious or the reasoning might be totally illogical, is not of itself sufficient to lead to a finding of actual bias (see Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at paragraph [32]).”
A subjective determination as to whether a decision-maker has been biased or not is necessarily impressionistic based upon a consideration of the whole of the factual matrix the subject of consideration. Reasonable minds might, after a consideration of all of the facts before them, legitimately differ in their conclusions as to whether bias has or has not been demonstrated.
It has also been held that the test for establishing actual bias is stringent, and that the onus cast on a party seeking to prove same is a heavy one. [22]
[22] Hocking v Medical Board of Australia (2014) 287 FLR 54 at [174].
During the course of the hearing, reference was made to a Notice to Admit filed on behalf of the applicant on 23 March 2021. That Notice to Admit sought an admission from the first respondent that the presiding Tribunal member was the same decision maker who was the subject of findings made by another Judge of this Court in an entirely different, and unrelated, matter. Without any sound basis having been laid by Ms Costello QC for the reading on behalf of the applicant of the Notice To Admit, either at the commencement of the hearing, or during the course of the hearing before the Court, the Court was left to ponder why such a subversive approach to the issues at hand had been adopted by those who represented the applicant. This Court finds that the filing of such Notice was entirely unmeritorious, not the least because it illegitimately led to this Court being asked to have regard to entirely irrelevant matters which, respectfully, was something those advising the applicant ought to have well appreciated.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 21 July 2021
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