El BALTAJI v Minister for Immigration
[2014] FCCA 2020
•9 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EL BALTAJI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2020 |
| Catchwords: MIGRATION – Application seeking review of decision of Migration Review Tribunal refusing to grant applicant a Partner (Temporary) (Class UK) visa – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.474(2) Migration Regulations 1994 (Cth), cl.820.211(2) to Sch.2 |
| Migunda v Minister for Immigration and Citizenship & Anor (2009) 108 ALD 561 Singh v Minister for Immigration and Citizenship & Anor (2012) 272 FLR 194 |
| Applicant: | MOHAMAD EL BALTAJI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 162 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 7 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with an Arabic interpreter. |
| Solicitors for the First Respondent: | Ms M Stone of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The application filed on 23 January 2014 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 162 of 2014
| MOHAMAD EL BALTAJI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in this Court, on 23 January 2014 under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (the “Migration Act”) seeking relief in the form of constitutional writs against a decision of the Migration Review Tribunal (the “Tribunal”) dated 23 December 2013 of H. Sanderson, case number 131 5464. The Tribunal affirmed a decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
By orders of the Court made on 18 February 2014 the solicitors for the first respondent, the Minister for Immigration and Border Protection (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing by 4 March 2014. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.
By orders made on 18 February 2014 the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review by 25 March 2014 and any additional affidavits upon which he wished to rely. The applicant was also granted leave to file and serve an outline of written submissions fourteen days prior to the hearing. The applicant elected not to file any amended application, affidavits or written submissions.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s legal representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a male citizen of Lebanon. The applicant applied for a subclass 820 Partner (Temporary) visa on 27 August 2013, on the basis of his relationship with his sponsor, Ms Pauline Elias El-Khouri. At the time of his application, the applicant was not the holder of any Australian visa and was detained in immigration detention.
Pursuant to clause 820.211(2) of schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”), one of the criteria for grant of the visa to be satisfied at the time of application was as follows (emphasis added):
(d) in the case of an applicant who is not the holder of a substantive visa--either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
The applicant entered Australia as the holder of a student visa and therefore did not satisfy subclause (d)(i). Accordingly, he needed to satisfy clause (d)(ii). Relevantly, Criterion 3001 of Schedule 3 of the Regulations requires as follows:
3001
(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa--1 September 1994; or
(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa--the day when the applicant last became an illegal entrant; or
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or
(d) if the last substantive visa held by the applicant was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation--the later of:
(i) the day when that last substantive visa ceased to be in effect; and
(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.
The applicant came within subclause (2)(c) above, and therefore the relevant day was the last day on which he held a substantive visa. The applicant's last substantive visa expired on 15 March 2009. The application for a Partner visa was not lodged within 28 days of that date, and the applicant therefore did not satisfy criterion 3001.
Accordingly, the issue for the Tribunal was whether there were compelling reasons for not applying the Schedule 3 criteria.
The Tribunal’s Decision
The Tribunal found at [49]-[52] (CB 178) that the applicant needed to satisfy clause 820.211(d) and that he did not satisfy schedule 3 criterion 3001. The Tribunal identified the issue before it to be whether there were “compelling reasons” for not applying the schedule 3 criteria (CB 178 at [53]).
The Tribunal considered that “compelling reasons” referred to “strongly compassionate” reasons, such as where there are Australian children from the relationship or where the parties are already in a long standing relationship (see CB 178 at [54]).
The Tribunal had regard to the evidence of the applicant and his sponsor about their relationship and their living arrangements prior to the applicant being detained, and:
a)The Tribunal found that although they claimed to have been boyfriend and girlfriend since December 2008, they only began a spousal or de-facto relationship on 23 July 2013, being one month before the application;
b)The Tribunal was not satisfied that such a short relationship provided compelling reasons for not applying the schedule 3 criteria, and was not satisfied that a boyfriend-girlfriend relationship of 5 years was a compelling reason for not applying the criteria (see CB 179at [55]-[56]); and
c)The Tribunal found, consistent with the applicant's evidence, that there were no children from the relationship and that the applicant had no relationship with the sponsor's children (see CB 179 at [57]).
The Tribunal had regard to the applicant's claim that he faced problems in Lebanon from his father, due to marrying a Christian. The Tribunal did not accept this claim due to inconsistencies in the applicant's evidence regarding his religion. The Tribunal:
a)Had regard to a compliance interview conducted on 19 August 2013 when the applicant was taken into detention, during which he claimed he had converted to Christianity and to fear harm from his father for this reason. The Tribunal found that this was not consistent with the Islamic marriage ceremony undertaken between the applicant and the sponsor, and with the fact that the applicant took an oath on the Koran at the Tribunal hearing. The sponsor had given evidence to the Tribunal that she had no religion (see CB 179 at [59]); and
b)Did not accept that the applicant was Christian or that his father had threatened him. The Tribunal did not accept that the claims made by the applicant provided compelling reasons for not applying the schedule 3 criteria.
The Tribunal had regard to claims that the applicant and his sponsor would be caused great stress by the refusal of the visa, and took into account a psychological report provided in support of these claims. The Tribunal considered that this situation was no different to that faced by any couple who formed a relationship where the applicant did not meet the schedule 3 criteria, and noted that there was nothing stopping the sponsor from travelling to Lebanon to spend time with the applicant (see CB 180 at [64]).
The Tribunal concluded that the applicant did not satisfy clause 820.211(2)(d)(ii) and that this was the basis of its decision. The Tribunal went on to express its concerns as to whether the applicant and the sponsor were validly married or in a genuine and continuing relationship (see CB 180-181 at [68]-[77]). However, this did not form the basis of its decision.
Legislative framework
The decision of the Tribunal in the present case is a privative clause decision as defined by s.474(2) of the Act. Section 474 operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error.
Current Proceedings
The applicant is self-represented in these proceedings. The application filed on 23 January 2014 pleads three grounds, namely:
1. The decision was affected by jurisdictional error in that the Tribunal took into account irrelevant considerations.
2. The decision was affected by jurisdictional error in that the Tribunal failed to have regard to relevant material or considerations.
3. The decision was affected by jurisdictional error in that it was unreasonable.
Applicant’s Submissions
At the hearing the applicant was invited to make oral submissions in support of his application. The applicant assumed, however, that the hearing was of an inquisitorial nature in the nature of his Tribunal hearing. It was explained to the applicant that the Court’s role is to review the decision made by the Tribunal, to review the procedures that took place in front of the Tribunal and to determine that they occurred according to law. The applicant was informed he had filed an application which indicated that he thought that there were errors in the Tribunal’s decision. As the orders granting leave to file an amended application, affidavit evidence and submissions were not adhered to by the applicant, it was explained to him that the limited range of factors the Court could look to were the applicant’s original application and any oral submissions that he wished to make.
The applicant stated that he believed the decision of the Tribunal was unreasonable because he was not given enough time before the Tribunal Member at the hearing. He claimed that the hearing itself was approximately 20 minutes and that the Tribunal refused him because he did not hold a substantive visa. The applicant stated that if he was never able to get the Partner visa because he applied for it without a substantive visa, then why was it that the Tribunal accepted his application in the first place. He claimed that then he would not have had to pay for the lawyers and applications. He also claimed that the Tribunal Member had been racist towards the applicant and his wife.
The applicant claimed that at his hearing the Tribunal Member was careless and that he failed to ask the applicant a lot of questions, for example about the medical certificate or witnesses. The applicant explained that the Tribunal Member was very confused about a witness of the applicant’s marriage named “Omran Malas” and the civil celebrant “Iman Malas”. The applicant also explained that the Tribunal Member failed to acknowledge that his wife was very distressed since the applicant had been detained in the detention centre, she had been taking pills and she was seeing a psychiatrist.
The Court made inquiries as to the four people present at the wedding, whom the applicant confirmed them to be Ahmed Elcheikh, Omran Malas and two others identified as Heshan and Mohammed. The applicant explained that two of the witnesses were, at the time of the Tribunal hearing, overseas, with Ahmed Elcheikh located in Queensland. The applicant confirmed that Omran Malas, who was a witness to the marriage, gave evidence at the Tribunal hearing.
Minister’s Submissions
The Minister submits there was nothing in the Act or the Regulations which made any considerations expressly relevant or irrelevant to the Tribunal’s consideration of whether there were 'compelling reasons'. Where, as here, a statute confers a discretion which in its terms is unconfined, the matters which the decision maker may take into account are limited only by the subject matter, scope and purpose of the statute, see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at 39-40 where Mason J stated:
…[W]here a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
Therefore, the Tribunal was entitled to take into account those considerations which were relevant having regard to the subject matter, scope and purpose of the statutory power being exercised.
In this case, the Tribunal was considering whether there were compelling reasons to waive a requirement to allow the applicant to be granted a partner visa. The applicant has not pointed to those considerations which he says were not relevant to the Tribunal's consideration. The first respondent submits that there were no matters taken into account by the Tribunal which were, on their face, irrelevant to the Tribunal’s consideration.
Similarly, the applicant has not pointed to those considerations which he alleges were relevant and which were not considered by the Tribunal. In the circumstances of this case, the Tribunal was required to consider those matters pointed to by the applicant as being compelling reasons for waiving the schedule 3 criteria. The Minister submits that the Tribunal did consider all matters which were raised by the applicant:
a)It is noted that this is not a case in which the Tribunal failed to consider the applicant's claims to fear harm in his home country, by referring to any previous decisions on this issue (MZYPZ v Minister for Immigration and Citizenship & Anor (2012) 127 ALD 510). The Tribunal considered for itself whether it accepted those claims, and found that it did not; and
b)Although the Tribunal referred to applicable policy in its interpretation of “compelling reasons” it did not limit its consideration to those matters set out in the policy. It correctly had regard to all matters pointed to by the applicant as being a compelling reason for waiving the schedule 3 criteria (Migunda v Minister for Immigration and Citizenship & Anor (2009) 108 ALD 561).
The applicant also alleges that the Tribunal decision was unreasonable. No particulars are provided. The Minister submits that the Tribunal's findings were reasonably open on the material before it, and no irrationality or illogicality is apparent in its reasoning.
For the reasons above, the Minister submits that the applicant's grounds cannot be made out.
At the hearing Ms Stone, appearing for the Minister, addressed each of the applicant’s claims raised during his oral submissions. Initially, the applicant suggested that he was refused the Partner visa solely on the ground that he did not hold a substantive visa at the time of the Partner visa application and that he should have been told that the application was invalid. Ms Stone argues that this is not the situation in which the applicant’s Partner visa application was refused because he did not hold a substantive visa at the time, instead, it was refused because a criterion for the grant of the visa that either the applicant satisfies certain criteria, including Schedule 3, criterion 3001, or that the Minister is satisfied that there are compelling reasons for not applying that criteria. Ms Stone contends the Tribunal undertook the correct approach in this respect.
Ms Stone argued that the Tribunal found that the applicant did not satisfy criterion 3001 because his last substantive visa expired in 2009 and his Partner visa application was not lodged within 28 days of that date. The Tribunal then went on to consider the reasons put forward by the applicant and his wife were “compelling reasons”, but was ultimately not satisfied they were. Consequently, the Tribunal found the applicant did not satisfy the criteria for the grant of the visa.
Ms Stone then drew the Court’s attention to the manner in which the applicant claimed the Tribunal hearing was conducted. Ms Stone noted that there was no transcript filed as to what was said and what occurred at the Tribunal hearing. The only evidence before the Court as to what was said at the Tribunal hearing is what is summarised in the Tribunal’s Decision Record. Ms Stone argues that the first allegation made by the applicant is that he did not have enough time before the Tribunal, because the hearing took approximately 20 minutes. Ms Stone noted that there is a documentary record of the Tribunal hearing at CB 163-165. At CB 164 it is recorded that the hearing opened at 8.40am and that the hearing was closed at 10.25am. As such, this record indicates that the Tribunal hearing went for nearly two hours. Ms Stone submits that there is no suggestion in the Decision Record that the applicant or the witnesses had anything further to say and that they were prevented from doing do. Ms Stone also noted that the applicant had filed submissions to both the department and the Tribunal. Ms Stone submits that any allegation that the applicant was prevented from putting the entirety of his case to the Tribunal cannot be made out.
Ms Stone took the Court to the next allegation made by the applicant that the Tribunal member was racist, with the example that was given being that the Tribunal Member had said that the relationship between the applicant and his wife could not last because of their differing religions. Ms Stone took the Court to CB 176-177 [34]-[40], where the circumstances of the marriage ceremony were discussed. She argued that there is no record of the comment attributed to the Tribunal Member by the applicant. Otherwise, on the face of the Tribunal’s decision, there is nothing before the Court to make out the allegation that the Tribunal Member was racist.
Ms Stone contends that the applicant’s allegation is essentially one of actual bias on the part of the Tribunal. She argues that this is a serious allegation and that it needs to be proven by evidence. Ms Stone submits that there is no evidence before the Court to support that allegation. The applicant also submitted that when the Tribunal Member was asking his wife questions about the wedding ceremony, the Tribunal Member made an error and when the applicant tried to correct him, he was not allowed to do so. Ms Stone submitted that this was an appropriate course of action on behalf of the Tribunal and according to the Decision Record at CB 177-178 ([43]-[45]), the applicant was afforded the opportunity to speak again, after his wife had given evidence.
Ms Stone contends that the Tribunal’s decision came down to whether or not there were “compelling reasons” for waving the Schedule 3 criteria.
Finally, Ms Stone noted that the applicant had asserted that there was evidence that his wife was seeing a psychologist and that the Tribunal did not consider this. Ms Stone took the Court to CB 180 at [64] (and also at CB 174 at [17]) where the Tribunal expressly considered the applicant’s wife’s mental health. The Tribunal was not satisfied that the report provided any information that the sponsor was anymore adversely affected than any other couple would be. Consequently, this allegation cannot be made out.
Applicant’s Submissions in Reply
The applicant responded to Ms Stone’s arguments by stating that the Tribunal did not believe that his wife was stressed because she did not have an episode or emotional breakdown at the Tribunal hearing. The applicant again argued that if the Court were to go back and check the recording of the Tribunal hearing it would be seen that the hearing did not take two hours and that it was more likely less than an hour. The applicant contends that the Tribunal Member said, on record, that he was going to refuse the application and that all this was done with the intention of causing his wife more stress. The applicant claimed that he did not apply for the Partner visa within 28 days because his wife was getting out of a divorce and needed time for issues to settle down before applying for the visa.
Consideration
At the hearing before this Court, the applicant was assisted by an interpreter in the Arabic language. The applicant had previously been afforded the opportunity to provide oral submissions and to respond to the written submissions of the Minister. The applicant’s submissions primarily went to the conduct of the Tribunal hearing.
The applicant arrived in Australia on a Student (Subclass 572) visa on 13 December 2007. On 19 March 2009 the applicant applied for a second Student visa Subclass 572, with this application being refused on 5 February 2010. The applicant applied for review of this refusal decision with the Tribunal but withdrew the review request on 22 August 2010. The bridging visa associated with the Student visa application expired on 2 September 2010. The applicant remained in Australia and became an unlawful non-citizen after 2 September 2010 (CB 106).
The applicant was subsequently detained by Immigration Department compliance officers pursuant to s.189 of the Migration Act and held at Villawood Detention Centre (CB 106). The applicant applied for a Partner visa (Temporary) (Class UK) and Partner (Residence) (Class BS) based on his marriage to the sponsor. The application for an associated Bridging Visa E was refused on 30 August 2013 with the refusal decision affirmed by the Tribunal on 12 September 2013 (CB 106). At the time of the hearing, the applicant had been released from detention and had notified the Court that his address for service was now at an address in Prospect, NSW.
The applicant was represented by Kayhan Oncu a solicitor from Legal Edge Australia Pty Ltd, from the time the Partner visa application was lodged on 27 August 2013. The Tribunal hearing records show that Mr Oncu was listed as the applicant’s representative and that he was present at the hearing (CB 163). I note this to highlight that the applicant, at all times prior to seeking judicial review in this Court, was represented by a solicitor.
The applicant is a self-represented litigant and the grounds in the application are vague and have not been particularised. Ground 1 states that the Tribunal’s decision was affected by jurisdictional error in that the Tribunal took into account irrelevant considerations and ground 2 states that the Tribunal failed to have regard to relevant material or considerations. At the hearing, the applicant argued that the Tribunal stated that his visa application was never going to be granted because he applied for it without holding a substantive visa. It is to be noted that the applicant entered Australia as the holder of a Student visa and therefore did not satisfy clause 820.211(2)(d)(i) of the Regulations. The applicant, therefore, needed to satisfy clause 820.211(2)(d)(ii) which states:
(2) An applicant meets the requirement of this subclause if:
…
(d) in the case of an applicant who is not the holder of a substantive visa—either:
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
(emphasis added)
The applicant came with within schedule 3 criteria 3001(2)(c), which states:
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or
Therefore the relevant day was the last day on which he held a substantive visa, which was on 15 March 2009. The application for the Partner visa was not lodged within 28 days of that date which resulted in the applicant not satisfying criterion 3001. Consequently, the issue for the Tribunal was whether there were “compelling reasons” for not applying the Schedule 3 criteria.
The Tribunal noted at [53] of the Decision Record (CB 178) that the applicant does not meet the relevant Schedule 3 criteria and as such was required to consider whether there were “compelling reasons” for not applying the criteria. The Tribunal noted that the expression “compelling reasons” is not defined for these purposes, however it is made clear from the Explanatory Statement that it was intended to apply where there were ‘strongly compassionate’ reasons (CB 178 at [53]-[54]).
The Tribunal went on to consider the applicant’s claims being that the applicant and the sponsor, his wife, only started living together in a spousal or de facto type relationship after the religious ceremony on 23 July 2013, being just over a month before the application was lodged (CB 179 at [55]). The Tribunal considered that there were no children of the relationship, noting that the sponsor has children from her former relationship and that these children are unaware of the relationship (CB 179 at [57]-[59]). The Tribunal also considered the claim that the applicant will face problems in Lebanon if he were to return due to his Christian faith. The Tribunal did not accept that the applicant is Christian and noted that the civil marriage certificate stated that the parties were married at Lakemba mosque under Islamic rites. The Tribunal also did not accept that the applicant’s father has made threats against him that would prevent him from returning to live safely in Lebanon.
The Tribunal took into account the claims made by the applicant and the sponsor that the refusal of the visa would cause great stress. The Tribunal observed that if the parties were in a genuine and continuing spousal relationship that having one spouse depart the country to file a further Partner visa application would be distressing (CB 180 at [64]). However, the Tribunal found that it was not satisfied that the report the psychologist provided any information that the sponsor is more adversely affected than any other genuine couple in a similar situation. The Tribunal observed that as the sponsor’s children are primarily cared for by their father, there would be nothing stopping the sponsor from travelling to Lebanon (CB 180 at [64]). Ultimately the Tribunal was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria and found that the applicant did not meet cl.820.211 (2)(d)(ii).
Without particulars it is difficult for the Court to understand what the applicant was specifying in Ground 1 of the application, which stated that the Tribunal took into account irrelevant considerations. The Tribunal was entitled to take into account the considerations which were relevant having regard to the subject matter, scope and purpose of the statutory power being exercised. I believe that the applicant’s complaint that his Partner visa application had no hope of succeeding from the point at which he filed it is misdirected and needs no further consideration as it was the applicant’s choice to lodge his visa application in the manner he did. The Tribunal correctly had regard to all matters identified by the applicant as being “compelling reasons” for waiving the Schedule 3 criteria.
Similarly, in Ground 2 the applicant has not identified the relevant matters in which he believes the Tribunal failed to regard. In his oral submissions the applicant mentioned that there was confusion by the Tribunal Member between a witness at his wedding, being Omran Malas and the celebrant identified as Iman Malas (CB 167). Specifically, he referred to when his wife was giving evidence at the Tribunal hearing.
After thoroughly reading the Decision Record, I am not convinced that the Tribunal was confused as to the identity of the two men. At [18] of its Decision Record the Tribunal stated:
18. … The Tribunal also received oral evidence from the sponsor and a friend of the applicant, Oyran Malas…
(CB 174)
I note the incorrect spelling. Then at [41], the Tribunal continued:
The evidence of Omran Malas
41. Mr Malas said he was a friend of the applicant and had been living with him for many years. He said he attended the wedding…
(CB 177)
The Tribunal stated at [23] of the Decision Record:
23. …The civil document stated that the celebrant was Iman Malas…
(CB 175)
Despite the initial incorrect spelling of the witness’ name, I am satisfied that the Tribunal Member was not confused as to who each of the parties identified were. Further, in reference to the sponsor’s evidence at [38] of the Decision Record, the Tribunal stated:
38. The sponsor said that the people who attended to wedding and whether witnesses were the people who are stated to be in the religious document, Omran Malas and Ahmed Elcheikh. She said that somebody else was there but she could not remember their name. The Tribunal asked who Kaled Elmir and Ibrahim Kadir are. The sponsor thought that they were friends, but was not sure and said that they were not at the wedding.
(CB 177)
As with ground 1 of the application, the absence of any detail in respect of the relevant material that is alleged to have been disregarded or not considered makes it extremely difficult for the Court to understand that the precise nature of the applicant’s complaint or complaints is or are. The only material available to consider is the contents of the Court Book and, particularly, the Decision Record and on a fair reading of the material contained therein it is not apparent that any material was overlooked or not considered by the Court.
Ground 3 of the application states that the decision was affected by jurisdictional error in that it was unreasonable. In his oral submissions the applicant claimed that the Tribunal hearing was approximately 20 minutes in length. The applicant also claimed that the Tribunal Member did not ask a lot of questions. In this respect I agree with the submissions made by Ms Stone at [30] above, noting that without any evidence to the contrary I must look at the evidence I have before me. As detailed above, the Court Book contains the hearing record (CB 164) that states that the hearing opened at 8.40am and closed at 10.25am, and not for approximately 20 minutes as argued by the applicant. Had the applicant wished to substantiate this claim, he could have tendered the audio recordings of the Tribunal hearing (or a transcript thereof), but this did not occur. Accordingly, this claim cannot be sustained.
In reference to the applicant’s claim that the Tribunal Member did not ask a lot of questions I turn to a decision of this Court in Singh v Minister for Immigration and Citizenship & Anor (2012) 272 FLR 194. This decision looks at the Tribunal’s general power to obtain information. Specifically, at [122]-[125] therein, I stated:
122. Sections 359 and 363 of the Migration Act confer power on the Tribunal to obtain information, but do not impose an obligation or duty to exercise such power. This issue was addressed in respect to the equivalent provision of the Migration Act relating to the Refugee Review Tribunal being s.427:Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [43]:
...whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty on obligations to do so. Rather s 426 provides that, even of an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is under no duty to inquire.
(footnotes omitted)
123. The Tribunal has no general duty to make its own enquires in order to make the applicant’s case: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1 per Gummow and Hayne JJ at [187]:
... The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention... The Tribunal must then decide whether that claim is made out.
124. However, in Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 Wilcox J suggests that where it was obvious that material was readily available which was centrally relevant to the decision to be made it would be unreasonable not to make the enquiry. At 169-170 his Honour stated:
The circumstances under which a decision will invalid for failure to inquire are, I think, strictly limited. It is not part of the duty of the decision maker to make the applicant’s case for him. It is not enough that the Court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to attain that information may properly be described as an exercise of the decision making power in the manner so unreasonable that no reasonable person would have so exercised it. It would follow that the Court, on judicial review should receive evidence as to the existence and nature of that information.
(emphasis added)
125. This authority was followed in Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369; (2002) 127 FCR 24 per Gray, North and Mansfield JJ at [28] where theirs Honours stated:
...After referring to the limited circumstances in which a decision maker is required to make inquiries: see Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169-170 per Wilcox J, his Honour noted that any duty on the decision maker to inquire is generally restricted to material that is readily available...
I am satisfied that, on the evidence before me, the Tribunal was not unreasonable in respect of the length of the hearing. I acknowledge that the Migration Act confers power on the Tribunal to obtain information, but does not impose an obligation or duty to exercise such power.
Finally, at the hearing the applicant alleged actual bias on behalf of the Tribunal Member, stating that he was racist towards himself and his wife. No specific example was identified and no particulars or evidence were provided by the applicant. An allegation of bias must by “distinctly made and clearly proven.”: SZHPD v Minister for Immigration and Citizenship[2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairsv Jia Legeng(2001) 205 CLR 507. The Court also notes that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 668 at [38]. To establish bias the applicant has to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56]-[59]. In Re Refugee Review Tribunal & Anor; Ex parte H & Anor(2001) 179 ALR 425 at [27] Gleeson CJ, Gaudron and Gummow JJ stated:
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.
There is no evidence before me to show that a fair minded lay observer might assume that the Tribunal Member maker has not brought an impartial mind for the resolution of the matter. The allegation of bias in the form of the Tribunal Member being racist towards the applicant and his wife has not been established.
Conclusion
On the material before the Court, which is essentially limited to the contents of the Court Book, and in the absence of an adequately pleaded application giving complete particulars of review, affidavit evidence or written submissions, I am of the view that none of the grounds of review pleaded by the applicant or submissions made can be sustained. Consequently, the application should be dismissed with the costs of the Minister to be paid by the applicant.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 9 September 2014
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