Corpuz v Minister for Immigration and Multicultural Affairs

[2000] FCA 561

FEDERAL COURT OF AUSTRALIA

Corpuz v Minister for Immigration & Multicultural Affairs
[2000] FCA 561

LILIA CORPUZ, EDWARD CORPUZ Senior and EDWARD CORPUZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1496/99

GYLES J
SYDNEY
17 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1496 OF 1999

BETWEEN:

LILIA CORPUZ
FIRST APPLICANT

EDWARD CORPUZ Senior
SECOND APPLICANT

EDWARD CORPUZ
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

17 APRIL 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Appeal dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1496 OF 1999

BETWEEN:

LILIA CORPUZ
FIRST APPLICANT

EDWARD CORPUZ Senior
SECOND APPLICANT

EDWARD CORPUZ
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	GYLES J
DATE:	17 APRIL 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an order of review in relation to a decision of the Migration Review Tribunal of 8 December 1999 to affirm a decision not to grant a Family Residence (Class AO) visa or any visa of the same class to the applicants.  The particular question was whether the first applicant had established that she was a special need relative within the meaning of the relevant legislation and regulations.

2. The only ground of review which has been pursued is actual bias.  The actual bias concerned has been argued to be demonstrated from the manner in which the oral hearing was conducted.  The decision itself, standing alone, has not been, and could not be, attacked. Without going through all of the circumstances of the case, the issues which the Tribunal identified were:

   (1)       whether or not the nominator (the father of the first applicant) had a permanent or long term need for assistance because of death, disability or prolonged illness, or other serious circumstances affecting the nominator, and

   (2)       if so, whether or not this assistance could reasonably be obtained from sources other than the first applicant.

3. The first issue was decided favourably in the sense that a need for assistance was established.  Thus, the focus of the decision was upon the question of whether assistance could reasonably be obtained from other sources, and the conduct of the oral hearing, largely at least, focused upon that issue.  The substance of the finding of the Tribunal is set out in pars 21 to 24 of the Tribunal decision and is as follows:

   “21.The Tribunal must determine, therefore, whether the assistance required by the Nominator can reasonably be obtained from:

   (1)any other relative who is an Australian citizen or

   (2)welfare, hospital, nursing or community services in Australia.

   22.What is reasonable in a specific factual situation has both a subjective and an objective element.  It is not in dispute that the Nominator would prefer the Review Applicant to care for him in his old age.

   23.Objectively considered the facts are that the Nominator has four children as well as their respective spouses living in Australia.  Each of these persons is engaged in full-time employment.  In addition the Nominator has several grandchildren resident in Australia including adult grandchildren.  Given the not inconsiderable resources available to this family it would appear reasonable for this family to provide alternative assistance for the Nominator other than that provided by the Review Applicant.  This could include but is not confined to pooling their resources to provide home care for the Nominator or alternatively nursing home care.  The Nominator states that he could not cope with the food in a nursing home.  Be that as it may there are at least eight adult members of this family in residence in Sydney.  It is not unreasonable to expect them to take Filipino food to the Nominator on a regular basis nor is it unreasonable to expect them to converse in Tagalog with the Nominator on a regular basis.

   24.Based on the above evidence and for the above reasons the Tribunal finds that the assistance required by the Nominator could reasonably be provided by sources other than the Review Applicant.”

4. Apart from the manner in which the oral part of the hearing was conducted, the applicant also points to the fact that the Tribunal member indicated a willingness to consider the result of an inquiry to be made to an institution which might have provided care, but went ahead to make a decision before any reply was to hand.  I should set that matter aside on the basis that, although there might be a legitimate complaint about that aspect of the matter, it appears to me to go to natural justice rather than bias.  I agree, of course, that a failure of natural justice might be seen as evidence of bias, but in circumstances where several weeks had elapsed, and no reply had been provided to the Tribunal, and where the Tribunal had indicated a willingness to consider the matter, it seems to me that it is not possible to so find. 

5. The transcript of what occurred during the oral hearing of the matter was in evidence before me and, at my suggestion, the tape was also obtained and tendered.  I listened to the tape last evening and counsel heard the tape together today and put further submissions to me as to the significance of what was heard as well as what can be read.  The applicant submits that what occurred showed that the Tribunal member had a mind set which could not be shifted;  that she had an agenda;  that she was subservient to the Department and that, in hearing the persons interested, she was formally going through the motions rather than attending to it with an open mind.  The respondent submitted that the transcript and the tape simply showed the case of a fact finder who had preliminary views who, nonetheless, remained open to persuasion.

6. The principles governing these matters are set out in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 and, of course, numerous other authorities. Each counsel went through the transcript with some care pointing to aspects of it which supported the submission that they were making. It seems to me that in a case such as the present it is artificial to select out particular parts of the transcript and focus attention only upon them. There is no substitute for reading the transcript as a whole, and certainly no substitute for listening to the tape of events as they occurred. That does not mean, of course, that the applicant, in particular, was not perfectly justified in drawing attention to many statements appearing on the transcript which can only have given the applicant cause for concern.

7. Having considered the submissions, the transcript and the tape it seems to me that the following conclusions can be drawn about the approach of the member of the Tribunal. Firstly, she felt under considerable time pressure, both generally and on that morning, as there was another matter fixed for a time which made it pretty well impractical to hear all of the evidence which was sought to be tendered before her in this matter, prior to the time fixed for the other matter.  She also, as I have said, made it quite clear that she felt herself to be under significant general pressure, as shown from the following passage of the transcript:

   “Well, you will have to be very rapid because I hope you appreciate we are now under terrific pressure to get through these applications.  We are supposed to do a file, a whole hearing and write up the decision in one morning.”

8. Secondly, it is clear that she regarded the special need relative category of entry permit as very exceptional, only to be used in relatively rare circumstances.  Thirdly, and this is, I think, linked with the previous point, she was troubled by the overall policy implications of approving the application before her because of the impact it would have on other cases which were backed up, which she (and presumably others) had to deal with - this is a kind of flood gates concern.

9. Fourthly, the Tribunal member was of a firm view that the application was virtually hopeless, on the basis of her earlier consideration of the documentary material produced.  Her view was that with four adult children and their spouses and adult grandchildren in Australia, all working, that the application was virtually bound to fail.  Fifthly, it followed from that view that unless something extraordinary occurred during the course of the oral presentation she would not change her mind.  Sixthly, hearing the oral portion of the matter was, to a very large extent, an annoying formality which had to be gone through to avoid an appearance of failure to accord natural justice.

10. I should also add that she made a statement, following her expression of concern about the string of other cases, to the following effect:

    “I think that I will make some further inquiries about policy directions.  This is not the only case of this type and I will have to think about it.”

    A decision of another Tribunal member which had found the necessary facts in favour of the applicant in a somewhat similar, although by no means identical, case had already been drawn to her attention. It seems to me that, having regard to what she actually said about the matter, she is most likely to be referring in the statement quoted to the kind of policy directions which can be, and are, made pursuant to s 499 of the Migration Act 1958, rather than to inquiries from some superior force which might give directions which would bind the Tribunal member in the ad hoc case.  I therefore tend to not take the most sinister view of that statement.

11. The conclusions I have come to as to the state of mind of the Tribunal member undoubtedly give rise to legitimate complaint on the part of the applicant.  The question, however, is whether it exhibits bias of the kind required to be found to affect a decision such as the present.  The respondent puts that it does not, and stresses that the Migration Review Tribunal does not sit as a court administering an adversary system.  It is not only entitled, it is bound, to consider the written materials submitted in support of the application.  The hearing of the applicant is a second phase and the hearing of others is discretionary.  The respondent submits that, in circumstances such as this, a Tribunal member is entitled to arrive at a firm view on the paper, provided that, in the event of the unexpected happening and something occurring during the oral part of the matter which changes the underlying facts and circumstances, the Tribunal member would be open to reconsider the matter in the light of those changed facts and circumstances.

12. I must confess that my mind has wavered as to the correct conclusion in the present case.  The number of occasions upon which the member of the Tribunal expressed her view, the emphasis with which it was expressed, and the fact that it ultimately found its way into the decision in almost precisely the same form as had been stated at the hearing, underlines the strength of the view which she had formed on the paper.

13. At the end of the day, however, I think that the respondent's position is correct in this case, because I cannot see that anything emerged during the course of the oral part of the case which changed in any material respect the underlying facts as they had been presented on the paper.  I say material respect, because, of course, that which was put forward could not help but flesh out the position which was on the paper.  There were declarations by the respective parties setting out the position and it seems to me that the Tribunal's decision itself was, in essence, that given the objective circumstances, the number of children, the number of spouses, the grandchildren and the combined means, the statutory conditions were not met.  It was the view of the Tribunal that the individual circumstances and arrangements between the children, their spouses, grandchildren and so on, did not really matter - the means were at hand to provide support.  Now, if that were a flawed approach to the decision, then the decision itself would fall.  It is not evidence of bias in the sense of having a mind closed to the particular applicant or the particular case.

14. There are many circumstances where even a Court, which does have to approach a matter judicially, might properly form a view, and a strong view on the merits upon, for example, reading pleadings and the affidavits of each party, and could well take the view that unless something happened during the course of cross-examination, or the hearing, to significantly or materially alter the position, then the law simply permitted only one answer to the case.

15. Taking those issues into consideration, I am not satisfied that the mind of the Tribunal was closed to the case for the applicant in a material respect.  There is nothing to indicate, I might make clear, that there was any personal animus or racial animus or any other animus which involved motivation of a collateral kind.  I do not need to, nor should I, indulge in giving gratuitous advice, but I can say that I cannot help but feel considerable sympathy for the position of the applicant, who can only have come away from that day with a feeling that what had actually taken place was somewhat of a waste of time.

16. However, for the reasons I have mentioned, I am not persuaded that it is a case of actual bias sufficient to set aside the decision.  I am therefore obliged to dismiss the application.  I think under all the circumstances, I will make no order as to costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            15 May 2000

Counsel for the Applicant:	Mr J Parnell
Solicitor for the Applicant:	Belen Oag
Counsel for the Respondent:	Mr RT Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 April 2000
Date of Judgment:	17 April 2000