Erasga v Minister for Immigration and Border Protection
[2019] FCCA 228
•18 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ERASGA v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 228 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – Tribunal not satisfied that the visa applicant and his sponsor were in a genuine de facto relationship – Tribunal purporting to re-open the review based upon an asserted jurisdictional error – Tribunal making enquiries of its own motion – new adverse material put to the applicant – whether the actions of the Tribunal in relation to the re-opening of the review establish an apprehension of bias considered. |
| Legislation: Freedom of Information Act 1982 (Cth) Migration Act 1958 (Cth), ss.5CB, 31, 65, 353, 359A, 368 Migration Regulations 1994 (Cth) |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 |
| Applicant: | AUGUSTUS PAUL ERASGA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3715 of 2016 |
| Judgment of: | Judge Driver |
| Hearing dates: | 7 November 2018, 5 February 2019 |
| Date of Last Submission: | 5 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended on 24 November 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3715 of 2016
| AUGUSTUS PAUL ERASGA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant who was born male but who identifies as female (Ms Erasga) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 December 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a temporary partner visa.
The following statement of background facts is derived from the Minister’s submissions filed on 2 November 2018.
Ms Erasga alleges that jurisdictional error occurred because the Tribunal’s conduct gave rise to an apprehension of bias. Owing to the nature of Ms Erasga’s arguments and the detailed factual matters referred to in them, the relevant background at this point can be shortly stated.
On 12 March 2014, Ms Erasga applied for the visa.[1] Ms Erasga is a citizen of the Philippines and claimed to be in a de facto relationship with Mr Gaurav Banga, an Australian citizen.[2] Mr Banga was the sponsor for the visa application.[3]
[1] Court Book (CB) 1-23
[2] CB 1
[3] CB 24-53
In order to be granted the visa, Ms Erasga had to meet a range of criteria.[4] Relevantly, this included clause 820.211(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provided:
[4] sections 31(3) and 65(1)(a)(ii) of the Migration Act
An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident, or eligible New Zealand citizen.
“De facto partner” was defined in s.5CB of the Migration Act 1958 (Cth) (Migration Act). In assessing whether Ms Erasga was the de facto partner of Mr Banga, the Tribunal was required to have regard to the factors set out in regulation 1.09A of the Regulations.
On 15 May 2015, the delegate refused to grant Ms Erasga the visa,[5] because the delegate was not satisfied that Ms Erasga was the de facto partner of Mr Banga.[6]
[5] CB 294-321
[6] CB 301
On 28 May 2015, Ms Erasga sought review of the delegate’s decision by the (then) Migration Review Tribunal.[7] On 3 May 2016, the Tribunal invited Ms Erasga to appear before it to give evidence and present arguments, at a hearing scheduled to occur on 9 June 2016.[8] That hearing was postponed to 12 July 2016.[9]
[7] CB 322-332
[8] CB 392-393
[9] CB 403-404; 598
On 26 August 2016, the Tribunal affirmed the delegate’s decision[10] (the First Decision). The Tribunal was not satisfied that Ms Erasga and Mr Banga were de facto partners, and accordingly was not satisfied that Ms Erasga met clause 820.211(2)(a) (or 820.221) of Schedule 2 to the Regulations.[11]
[10] CB 606-613
[11] CB 612 [32]-[35]
However, shortly after making the First Decision, the Tribunal became aware of information that was before it but which it had not considered. The Tribunal stated that Ms Erasga had provided evidence to it that the parties had formed a cleaning business together, and had also provided a statutory declaration from a witness, Maria Iradiel. The Tribunal stated that this evidence had not been taken into account in the First Decision and that it had accordingly formed the view that it had fallen into jurisdictional error. It decided, on 7 September 2016, to “re-open” Ms Erasga’s review.[12]
[12] CB 654 [6]; 657 [26]
On 14 September 2016, the Tribunal wrote to Ms Erasga and stated that it had “decided to re-open the case”. Ms Erasga was invited to attend a further hearing, to be held on 20 October 2016.[13] That hearing took place as scheduled.[14] On 7 November 2016, the Tribunal invited Ms Erasga to comment, pursuant to s.359A of the Migration Act, on information concerning a Facebook page and the parties’ cleaning business.[15] A response was received on 17 November 2016.[16]
[13] CB 621-622
[14] CB 626-627
[15] CB 641-643
[16] CB 645-658
On 6 December 2016, the Tribunal affirmed the delegate’s decision[17] (the Second Decision). Again, the Tribunal was not satisfied that Ms Erasga and Mr Banga were de facto partners, and accordingly was not satisfied that Ms Erasga met clause 820.211(2)(a) (or 820.221) of Schedule 2 to the Regulations.[18]
[17] CB 653-664
[18] CB 663 [56]-[59]
The present proceedings
These proceedings began with a show cause application filed on 22 December 2016. The applicant now relies upon an amended application filed on 24 November 2017. There are two grounds in that application, of which only the second ground (expressed as particulars) is pressed:
Grounds of application
The second respondent failed to comply with its obligation under s.353(b) of the Migration Act 1958 to review the decision of the first respondent in a manner that was in accordance with substantial justice and the merits of the case.
Particulars of apprehended bias (1)
(a)On 26 August 2016 the second respondent made and published a decision to affirm the refusal of a subclass 820 Partner visa to the applicant (the first decision). In arriving at the decision the second respondent make a critical finding that it was not satisfied that the applicant and her sponsoring de facto partner had a mutual commitment to a shared life to the exclusion of all others, or that their relationship was continuing.
(b)On 7 September 2016 the second respondent withdrew its decision to affirm the refusal of the visa on the grounds that it there had been jurisdictional error because it had failed to consider relevant evidence.
(c)The further consideration of the application was undertaken by the same member of the second respondent which had made the first decision.
(d)On 7 December 2016 the same member made another decision to affirm the refusal of a visa to the applicant (the second decision).
[e] In all the circumstances, the failure of the second respondent, after the first decision, to reconstitute the application before a different member, gave rise to a reasonable apprehension of bias, in that a fair-minded lay observer might reasonably apprehend that when making the second decision the member might not have brought an impartial mind to the resolution of the issues under review.
Particulars of apprehended bias (2)
(a) The reason given by the second respondent to withdraw the first decision was that there had been jurisdictional error because it had failed to consider two items of evidence; namely:
(i)a brochure advertising a cleaning business claimed to be operated by the applicant and her sponsor; and
(ii)a statutory declaration of a witness, Maria Iradiel, who had stated that she had known the applicant for 5 years and the sponsor for 2 years.
(collectively, the two items of evidence)
(b)In fact, there had been no jurisdictional error in the first decision rendering it as of no effect because:
(i)the two items of evidence had, in fact, been considered by the second respondent; and
(ii)the two items of evidence were, in any event, inconsequential and immaterial to the decision.
(c) In circumstances where there had been no jurisdictional error in the first decision, the second respondent was not authorised to undertake any further review of the first respondent’s decision to refuse a subclass 820 Partner visa to the applicant.
(d) The second respondent subsequently undertook further unauthorised inquiries into the circumstances of the applicant’s relationship with her sponsor; namely:
(i)by investigating the Facebook pages of the applicant and her sponsor;
(ii)by investigating the cleaning business claimed to have been operated by the applicant and her sponsor;
(iii)by conducting a further hearing of the application; and
(iv) by making the second decision.
(e) The conduct of the second respondent, in withdrawing the first decision without authority and undertaking further investigations unrelated to the express reason given for the withdrawal of that decision, gave rise to a reasonable apprehension of bias, in that a fair-minded lay observer might reasonably apprehend that the member was intent upon pursuing issues with the aim of strengthening the decision to affirm the refusal of a Partner visa to the applicant.
In addition to the court book filed on 27 October 2017, I have before me as evidence the affidavit of Jodie Ellen Coomber made on 22 November 2017, to which is annexed the transcripts of the two hearings conducted by the Tribunal on 12 July 2016 and 20 October 2016.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial of the matter on 5 February 2019. I have been assisted by those submissions.
Consideration
The factual context
Ms Erasga’s submissions deal in some detail with the factual context bearing upon this matter. It is helpful to address those details.
Among the claims made in the covering letter with the visa application were that the “modest financial requirements” of Ms Erasga and Mr Banga were, in part, satisfied by:[19]
A new business, Eastern Suburbs Cleaning Services, that they have established and are actively developing. This business is new but has shown a very promising start amongst homeowners in the Eastern suburbs of Sydney.
[19] CB 2
Ms Erasga’s representative provided the Minister with a great deal of further documentation evidencing the relationship under emails and covering letters dated 16 March 2014,[20] 23 July 2014,[21] 23 December 2014,[22] 7 January 2015,[23] 21 January 2015,[24] 18 February 2015[25] and 23 April 2015.[26]
[20] CB 125-133
[21] CB 139-149
[22] CB 170-187
[23] CB 188-195
[24] CB 196-225
[25] CB 226-262
[26] CB 286-292
Among the documents provided in support of Ms Erasga were the following:
a)a statutory declaration made by Ms Erasga on 9 March 2014 setting out the history of her relationship with Mr Banga[27] and referring to the cleaning business;[28]
b)a statutory declaration made by Mr Banga on 9 March 2014 setting out the history of his relationship with Ms Erasga;[29]
c)Form 888 statutory declarations made by Ms Erasga’s mother, Maria Salome Tencaten, on 9 March 2014[30] and 15 March 2014[31] attesting to the genuineness of Ms Erasga’s relationship with Mr Banga;
d)a Form 888 statutory declaration made by Ms Erasga’s brother-in-law, William Makoto Eagar, on 28 February 2014 attesting to the genuineness of Ms Erasga’s relationship with Mr Banga;[32] and
e)Form 888 statutory declarations made by a life-long friend of Ms Erasga, Amee Elizabeth Butterworth, on 27 February 2014[33] and 14 March 2014[34] attesting to the genuineness of Ms Erasga’s relationship with Mr Banga.
[27] CB 63-65
[28] CB 65
[29] CB 71-73
[30] CB 76-77
[31] CB 130
[32] CB 78-79
[33] CB 80-81
[34] CB 131-132
For the purposes of the Tribunal review, Ms Erasga’s representative provided further documents evidencing the relationship,[35] including a statutory declaration made on 28 May 2015 by Ms Erasga and Mr Banga[36] confirming that they were still in a de facto relationship, and further statutory declarations.[37]
[35] CB 333-377
[36] CB 335
[37] CB 339, 352
On 8 July 2016, shortly before the hearing, the representative provided further documents evidencing the relationship.[38]
[38] CB 409-597
At the hearing on 12 July 2016 the following relevantly took place:
a)the Tribunal was provided with the following documents:
i)a statutory declaration made on 11 July 2016 by a friend of Ms Erasga, namely Ms Iradiel,[39] who attested that:
·she had known Ms Erasga for five years and they were close friends;
·she had been with Ms Erasga and Mr Banga together on a number of occasions;
·she could see that they are in love with each other and happy; and
·she could attest to the genuineness of their relationship;
(ii) a brochure for the joint cleaning business of Ms Erasga and Mr Banga with the heading, “EASTERN CLEANING SERVICES”;[40]
[39] CB 599-600
[40] CB 601
b)the Tribunal identified the issue as whether Ms Erasga met subclause 820.211(2), which relevantly required her to satisfy the Tribunal that, at the time of application, she was the spouse of Mr Banga;[41]
[41] Hearing 1 transcript (H1), 3:17-19
c)the Tribunal asked detailed questions of Ms Erasga about her family and her relationship with Mr Banga.[42] Ms Erasga said that Mr Banga was bisexual,[43] and that she had never had hormone therapy and had no plans for surgery.[44] She said that she and Mr Banga had commenced a sexual relationship in August 2012 and committed to an exclusive relationship in October 2013.[45] She said that she was living in Hillsdale with her cousin and another person, and Mr Banga was living with his father (who was unaware of the nature of the relationship) and spending time with Ms Erasga.[46] She said that in May 2014 they moved in together in Maroubra Junction.[47] She said that she was currently sharing with Mr Banga and her mother;[48]
[42] H1, 4:36-50:41
[43] H1, 13:19-22
[44] H1, 16:7-13
[45] H1, 21:27-22:28
[46] H1, 25:38-26:39
[47] H1, 26:41-27:18 and 29:5-7
[48] H1, 32:3-9
d)after Ms Erasga had given evidence, the representative raised the issue of the joint cleaning business set up by Ms Erasga and Mr Banga, and the following exchange took place:[49]
[49] H1, 51:30-52:12
REPRESENTATIVE:…Member, one thing I’ve still got to mention, I’ve got that joint business [0:58:42] the little brochure, the cleaning business.
MEMBER: Yeah, I saw that. So, that was – is that just a little business on the side?
APPLICANT: Yeah.
MEMBER: Yeah, okay. Because, that’s – when I asked you what you did for a living I thought you were going to tell me you were a cleaner. So, you just do a bit of this when [0:58:59].
APPLICANT: No, but, we just only have one client, that’s right.
MEMBER: Okay. Yeah.
APPLICANT: Yeah, so - - -
MEMBER: Yeah. But, you want to grow it?
APPLICANT: Yeah.
MEMBER: Yeah. Okay. And, what do you do for the client?
APPLICANT: We clean, everything.
MEMBER: Okay…
e)the Tribunal then asked detailed questions of Mr Banga about the relationship;[50] and
f)at the conclusion of the hearing, the Tribunal member said:[51]
I – yeah, so, I’ll think about it. I – I’m nothing – I’m not particularly concerned about anything, but, I haven’t made a – a findings or a decision yet. But, don’t worry if you haven’t heard from me for a few weeks because I – I’m majorly behind.
(applicant’s emphasis retained)
[50] H1, 52-12:62:26
[51] H1, 63:42-45
In the First Decision, after setting out the evidence, the Tribunal found:
a)at [27], that as at the time of application in March 2014 the parties were not, and had not ever been, living at the same address. The Tribunal noted, however, that on the authority of SZOXP v Minister for Immigration,[52] there is no requirement that a couple previously live together in the definition of a “de facto relationship”;
b)at [28], with regard to the financial aspects of the relationship, the Tribunal found that while overall there was some evidence indicating some pooling of financial resources, it appeared that Ms Erasga bore the bulk of the financial responsibility, despite Mr Banga having full-time employment;
c)at [29], with regard to the household arrangements, the Tribunal found that Mr Banga had not always lived with Ms Erasga since the relationship commenced because his family did not know about his sexual orientation and hence he had not told them about the nature of the relationship. The Tribunal noted that there were residential tenancy agreements indicating that they had shared accommodation, and that they started using the same address in 2014. The Tribunal found that the evidence regarding the nature of their household arrangements did not suggest they take joint responsibility for housework, shopping and cooking, and that Ms Erasga and her mother appeared to carry most of the responsibility for managing the household;
d)at [30], with regard to the social aspects of the relationship, the Tribunal “…has read the witness statements and accepts that the applicant’s family and friends are aware and supportive of the relationship between the parties” (applicant’s emphasis retained). Along with photographs of the parties together in social situations, it accepted that there was a relationship between the parties and that they socialise together;
e)at [31], with regard to the parties’ commitment to each other, the Tribunal noted that Mr Banga had still not told his family about the relationship and, while the Tribunal accepted that his family may be disapproving of the relationship, particularly given his cultural background, it had concerns that the parties claim to have committed to each other nearly three years ago yet Mr Banga had not indicated to his family that he is in an exclusive relationship with Ms Erasga. The Tribunal also noted that Mr Banga’s Centrelink statement described him as not partnered, and Ms Erasga’s evidence that Mr Banga is bisexual and has some interest in women. The Tribunal took the view that this may raise some concerns as to whether Mr Banga sees the relationship as long-term. The Tribunal accepted that the parties provide each other with companionship and that they, with family and friends, eat together, and that Mr Banga enjoys this social contact. However it noted that that examples of Facebook exchanges between the parties provided by Ms Erasga were minimal and cursory, and did not demonstrate that they represented themselves on Facebook as being a de facto couple. It also accepted that they had travelled together and had saved $2,000 together to buy a unit. The Tribunal went on:
However considered overall the Tribunal is not satisfied the parties see the relationship as long-term. In the Tribunal’s view their only evidence that they have plans for the future, together as a couple, is the claim that they have saved $2000 to buy a unit together. The Tribunal does not find this sufficiently persuasive to demonstrate a long term commitment; and
f)at [32] the Tribunal accepted there was a friendship and a sexual relationship between the parties, but concluded that it was not satisfied that they had a mutual commitment to a shared life to the exclusion of all others and that their relationship is continuing.
[52] [2015] FCAFC 69
On 29 August 2016 the Tribunal sent the First Decision to Ms Erasga’s representative under covering letter.[53] It is common ground that the decision was also notified to the Secretary of the Minister’s Department.
[53] CB 604
On 1 September 2016 Ms Erasga lodged a request for the audio recording of the Tribunal hearing under the Freedom of Information Act 1982 (Cth).[54] On 5 September 2016 the Tribunal provided Ms Erasga with the audio recording as requested.[55].
[54] CB 615-616
[55] CB 617-618
On 12 September 2016, almost two weeks after the Tribunal had delivered the First Decision, the Tribunal member visited online the Facebook accounts of Ms Erasga and Mr Banga and observed that Ms Erasga’s relationship status was recorded as “no relationship info to show”, and Mr Banga was not recorded as being a friend of Ms Erasga, despite her having numerous other friends on Facebook and photographs of Mr Banga in social situations.[56] The Tribunal also accessed Mr Banga’s Facebook account and observed that Ms Erasga was not recorded as Mr Banga’s friend, and that there was a comment on his Facebook account, made in April 2014, next to a photograph of Mr Banga stating “what a gay guy”.[57]
[56] CB 641-642
[57] CB 642-643. Copies of the accessed Facebook pages are at CB 631-633
On 14 September 2016 the Tribunal wrote to Ms Erasga advising that the case had been re-opened, and inviting her to another hearing on 20 October 2016.[58]
[58] CB 621-622
The reason given by the Tribunal for reopening the case, in its Second Decision, at [26], was as follows:
After the Tribunal made a decision on 26 August 2016 it was made aware that there had been evidence before the Tribunal at the time of that decision that had not been taken into account. At the first hearing the applicant had provided evidence that the parties had formed and conducted a cleaning business together. There was also a statement from a witness, Maria Iradiel, provided to the Tribunal, in which she states she has known the applicant for 5 years and the sponsor for 2 years. She socialises with the parties and believes they love each other. As this evidence had not been taken into account at the time of its first decision, the Tribunal formed the view there had been jurisdictional error and decided to reopen the case.
The Tribunal also stated in the Second Decision at [27]:
In its consideration of the evidence about the cleaning business (a flier which included an ABN in the applicant’s name for an individual/sole trader entity active from 10 January 2014), the Tribunal looked at the parties’ Facebook accounts. The applicant had previously presented evidence that they had communicated on Facebook. It looked to see if there were any references to their cleaning business on their Facebook accounts. The Tribunal did not find any evidence relating to the cleaning business, on Facebook, or on any other relevant website. However it also noted that the parties did not identify each other as ‘friends’ on Facebook. It had some concerns about this and decided to hold another hearing to give the applicant an opportunity to present her evidence and arguments as to why the Tribunal should not be concerned by this.
At the second hearing on 20 October 2016 the following relevantly took place:
a)Ms Erasga provided the Tribunal with the following documents:
i)a Centrelink document dated 19 October 2016 showing Mr Banga as being in a de facto relationship with Ms Erasga;[59] and
[59] CB 629
ii)a “My Tax” document for Mr Banga identifying his spouse as Augustus Paul;[60]
[60] CB 630
b)the member[61] explained why the case had been re-opened as follows:
[61] Hearing 2 transcript (H2), 2:19-40 and 3:38-40
Okay. Now, after I made my decision I was informed that you’d made an application to obtain the documents. And, I was then made aware that there were documents that you had provided, and I think you provided them at the first hearing, that hadn’t been put on the Department – on the Tribunal’s file, and I hadn’t taken into regard when I was making my decision.
And, one of them I think I did take into regard, because I think I made a finding about it. But, I definitely didn’t make a finding about the business that you say that you and Mr Banga conduct. So, I was of the view that because there was a document and evidence that I think was relevant to my consideration, that there’d been jurisdictional error, that I needed to reopen the case and take into account that material.
Because I did that, I then wanted to see what I could find about that business.
…
And, I couldn’t find anything about the business. There was nothing online that I could find. I – I looked for the name of the business…
…
…so, I’m assuming that because I couldn’t find it there probably isn’t an advertisement online about the business.
(applicant’s emphasis retained)
c)the Tribunal confirmed with Ms Erasga that the business was not advertised online, then suggested to her that the brochure provided at the previous hearing had just been put together for the purpose of the hearing.[62] Ms Erasga said that the flyer had been distributed by post since 2013, but that they had only obtained one client from it; a person called Mindy, for whom Ms Erasga and Mr Banga had done cleaning work for three or six months.[63] The Tribunal noted that the brochure indicated that the business had not been registered as a sole trader until 2014,[64] and Ms Erasga said that this had been done by Mr Banga. The Tribunal suggested that the flyer said little about their mutual relationship, and Ms Erasga maintained that it showed the sacrifice they had made as part of their lives;[65]
[62] H2, 3:40-4:6
[63] H2, 4:13-44
[64] A copy of the ABN for the business as at 19 October 2016 is at CB 635-636
[65] H2, 7:40-8:25
d)the Tribunal then referred to its Facebook searches, noting that Mr Banga was not one of Ms Erasga’s friends on Facebook, to which Ms Erasga responded that she used to have him as a friend, but removed him in 2014 due to family reasons and because of gossip about them being gay;[66]
[66] H2, 8:27-10:3
e)the Tribunal noted that, despite claiming that Mr Banga could not be open about his sexuality, an entry on his Facebook page described him as “a gay guy”. Ms Erasga said that they were not keeping it a secret; they were just trying to protect Mr Banga’s father;[67]
[67] H2, 10:9-11:24
f)the Tribunal also noted that Ms Erasga had no photos of Mr Banga on his Facebook page and Ms Erasga said that there were, and showed the Tribunal some photos on a mobile telephone;[68]
[68] H2, 14:13-16:20
g)during a discussion with the representative, the member said:[69]
[69] H2, 18:9-24
I mean, the difficulty is that I have – I have looked at everything I had before me and formed the view, and you know what the view is [0:27:57].
…
And – and, as I indicated, I had concerns that Mr Banga doesn’t identify to – to his family as being in a permanent relationship with you. That was one of my significant concerns. I hadn’t seen the Facebook material at that stage. I hadn’t looked at Facebook. I don’t ordinarily do that. And, in fact, I don’t think I’ve done it before. It was just that I was looking – I was looking to see if I could find – because, often cleaning services are in Gumtree, or…in Facebook.
h)the member also said to Ms Erasga:[70]
I mean, given that – given that I’ve made findings, and now I’ve reopened it wanting – I didn’t read my decision after I reopened it, because I didn’t want to – I – I wanted to come to this, as much as possible, with a fresh mind.
…
But, it – when I started looking for that cleaning service – because, I thought I’d find it, and what I found instead I thought may be adverse, so, I had to have another hearing to let you know that I was concerned that there’s – you don’t have any information on your Facebook site identifying as Mr Banga’s partner, that he’s not even a friend – is that right, that he’s not a friend on your Facebook site?
[70] H2, 19:14-26
i)when Mr Banga was called to give evidence the Tribunal said:[71]
[71] H2, 31:11-19
Mr Banga, when I was told – after there was a request for documents I was told that there were a couple of documents that weren’t actually attached to the Tribunal’s file, and I had a look and I hadn’t made findings about one in particular that I thought it was important that I consider.
…
And, that was about the Eastern Cleaning Services.
(emphasis added)
j)the Tribunal then asked Mr Banga about their cleaning business, during which time Mr Banga said that they had been cleaning one or two different houses a day, or roughly ten per week, for a period of around one year;[72]
k)Mr Banga was also asked about the Facebook pages, and he said that he had stopped being friends with Ms Erasga to protect his father;[73] and
l)the Tribunal put to Ms Erasga the differences between her account of their cleaning company and Mr Banga’s account, and Ms Erasga maintained that they only ever had one customer.[74]
[72] H2, 31:23-32:42
[73] H2, 35:9-36:38. 12
[74] H2, 42:21-45:6
On 7 November 2016 the Tribunal wrote to Ms Erasga inviting her to respond to the information about their Facebook pages and the cleaning business which had been raised in the hearing.[75]
[75] CB 641-643
On 17 November 2016 Ms Erasga’s representative provided a response.[76] In relation to the Facebook pages the representative confirmed that Ms Erasga and Mr Banga had stopped being Facebook friends because Mr Banga’s father had been upset about their relationship and they wanted to protect the father. In relation to the cleaning business the representative said that they had one regular client and a few other non-regular clients. A Facebook page dated January 2014 was provided as evidence that the business was operating before it was registered.
[76] CB 645-648
On 6 December 2016 the Tribunal made the Second Decision to affirm the refusal of the visa.[77] Relevantly, and in addition to what is set out above at [28]-[29], the Tribunal made the following comments and findings:
[77] CB 653-664
a)in relation to the reopening of the case the Tribunal stated at [6]:
The Tribunal had made a decision on 26 August 2016. However shortly after making the decision it was made aware that there was information available to the Tribunal which had not been considered. Accordingly the Tribunal formed the view that it had made a jurisdictional error and reopened the case on 7 September 2016.
b)at [47], with regard to the financial aspects of the relationship, the Tribunal made the same finding as in the First Decision; namely, that while overall there was some evidence indicating some pooling of financial resources, it appeared that Ms Erasga bore the bulk of the financial responsibility, despite Mr Banga having full-time employment;
c)the Tribunal at [48] noted the inconsistent evidence with regard to the cleaning business, suggesting that the brochure “may have been manufactured to bolster the claims that the parties are in a de facto relationship”;
d)with regard to the household arrangements, the Tribunal at [49] referred to inconsistent evidence about the parties’ cohabitation, which it considered “cast doubt on the applicant’s assertions that the parties have been or are living together”. At [50] it repeated its finding from the First Decision, that the evidence regarding the nature of their household arrangements did not suggest they take joint responsibility for housework, shopping and cooking, and that Ms Erasga and her mother appeared to carry most of the responsibility for managing the household;
e)at [51] the Tribunal referred to the evidence about the Facebook pages, finding that inconsistencies “cast doubt on the reliability of the evidence” and that it suggested that “the applicant is willing to amend her evidence to overcome concerns arising from it”;
f)at [52], with regard to the social aspects of the relationship, the Tribunal repeated its observations and findings from the First Decision at [30]. No reference was made to the statutory declaration of Ms Iradiel, claimed at [26] to have been a reason for re-opening the case;
g)at [53], with regard to the parties’ commitment to each other, the Tribunal repeated much of what it had said in the First Decision at [31], but added additional evidence from the second hearing, taking the view that “all of this evidence may raise some concerns as to whether the sponsor sees the relationship as exclusive and long-term”;
h)at [55] the Tribunal repeated its observations and findings previously made in the latter part of [31] in the First Decision, adding only the observation that the parties do not identify as a de facto couple on Facebook; and
i)at [56] the Tribunal concluded by repeating what it had previously said at [32] of the First Decision.
Ms Erasga’s contentions
Ms Erasga submits that there was no jurisdictional error in the First Decision, at least up to the point of making it, but that both Tribunal decisions are vitiated by an apprehension of bias by reason of the Tribunal’s conduct following the First Decision.
Did the Tribunal have authority to reopen the case?
Ms Erasga makes the following propositions:
a)the Tribunal has authority to revoke a decision where that decision is affected by jurisdictional error;[78]
b)however, the Tribunal is under no duty to revoke the decision or to treat it as a nullity. The duty of the Tribunal in such circumstances is to consider whether it would be “wise” for that power to be exercised;[79]
c)the Tribunal “should consider treating an earlier decision as a nullity only if the existence of jurisdictional error in its earlier decision is so obvious as to leave no real doubt about that conclusion, and there are no plausible countervailing considerations weighing against doing so, including but not limited to fairness to the parties”.[80] It is necessary, for the proper operation of the Tribunal, that “[i]n all but the rarest of cases, tribunal decisions must be treated as final…”;[81] and
d)it follows, in Ms Erasga’s case, that the Tribunal has no authority to revoke a decision which is not affected by jurisdictional error.
[78] Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at [55] (Gaudron and Gummow JJ)
[79] Mora (Migration) [2016] AATA 4198 at [11]-[13] (Kerr P, Redfern DP, Holmes SM); see also Lokuwithana & Ors v Minister for Immigration (2017) 318 FLR 351 at [103] (Judge Jones)
[80] Mora at [17] (emphasis in original)
[81] Mora at [18]
Ms Erasga’s case is that the present Tribunal had no authority to revoke the First Decision and reopen the case[82] because, at that time, the First Decision was not affected by jurisdictional error.
[82] see Second Decision at [6]
The reason subsequently given by the Tribunal for revoking the First Decision[83] was that it had failed to take into account two items of evidence; namely:
a)evidence that the parties had formed and conducted a cleaning business together; and
b)the statutory declaration of Ms Iradiel which had been provided at the first Tribunal hearing on 12 July 2016.
[83] see Second Decision of 6 December 2016 at [26]
The evidence about the cleaning business was plainly before the Tribunal at the time of the First Decision. It was referred to prominently in the covering letter with the original application[84] and in Ms Erasga’s accompanying statutory declaration of 9 March 2014.[85] It was also the subject of specific discussion during the first hearing, when the representative provided the brochure to the Tribunal.[86] It is said to be “inconceivable” that the Tribunal had overlooked this evidence at the time that it wrote the First Decision.
[84] CB 2
[85] CB 65
[86] H1, 51:30-52:12
In any event, as the Tribunal itself pointed out at the second hearing,[87] the brochure evidencing the parties’ involvement in the cleaning business was barely significant as evidence of their relationship. Ms Erasga submits that any failure by the Tribunal to have taken the evidence the parties’ involvement in the cleaning business into account did not, in the words of Mora at [17], point to the existence of jurisdictional error which was “so obvious as to leave no real doubt about that conclusion”.
[87] H2, 6:24-7:42
The statutory declaration of Ms Iradiel was also plainly before the Tribunal at the time of its First Decision. In that decision at [30] the Tribunal stated that it had “read the witness statements” and it had accepted that the applicant’s family and friends were aware and supportive of the relationship between the parties. Crucially, in the second hearing the Tribunal also said on two occasions that one of the two documents that had not been put on the file, said to be the statutory declaration of Ms Iradiel, since the other document was the brochure, had been taken into account by the Tribunal.[88]
[88] see H2, 26-27 and 31:11-19
Moreover, as with the evidence about the cleaning business, the statutory declaration of Ms Iradiel is also said to be insignificant in the overall evidence of Ms Erasga, such that any failure by the Tribunal to take it into account would have been immaterial. The statutory declaration was not referred to in the Second Decision and it said to go to nothing more than the numerous other statutory declarations provided with the evidence; namely, that the parties were in a genuine relationship. The Tribunal’s statement in the First Decision at [30] that it had read “the witness statements” is said to have plainly covered this document.
In short, Ms Erasga contends that the Tribunal did not have the authority to revoke its First Decision or treat it as a nullity.
Where, then, does this leave Ms Erasga? If the First Decision was not a nullity because it was not affected by jurisdictional error, does that not mean Ms Erasga has no remedy in the present application?
Ms Erasga’s case is that, while the First Decision was not affected by jurisdictional error as at the time that it was made, the subsequent conduct of the Tribunal might have given rise to a reasonable apprehension in a fair-minded person that the Tribunal had not brought a fair and impartial mind to the making of the First Decision.[89]
[89] see Minister for Immigration v SZQHH (2012) 200 FCR 223 at [37] (Rares and Jagot JJ); SZRUI v Minister for Immigration [2013] FCAFC 80 at [2]-[3] (Allsop CJ)
In the present case, at the end of the first hearing, the Tribunal gave a clear indication to Ms Erasga’s representative that, while it had not yet made any findings, it was “not particularly concerned about anything” in the application.[90]
[90] H1, 63:42-45
Yet, after the hearing, the Tribunal visited the Facebook accounts of the Ms Erasga and Mr Banga and became concerned about the lack of references to their relationship status, and a reference to Mr Banga being “a gay guy”, which appeared to be inconsistent with his claim to have kept his sexuality secret, especially from his father. The Tribunal also conducted searches relating to the cleaning business claimed to have been operated by Ms Erasga and Mr Banga.
The Tribunal is said to have had no authority to undertake these searches, since there was no error in the First Decision. Its statutory task was complete when it communicated the First Decision to Ms Erasga and the Secretary on 29 August 2016.[91]
[91] see Minister for Immigration v SZQOY (2012) 206 FCR 25 at [40] (Logan J) and [57] (Barker J)
Moreover, Ms Erasga contends that none of the Tribunal’s subsequent internet searches had anything to do with the claimed reason of the Tribunal for re-opening the case. The purported reason for re-opening the case was simply that the Tribunal had claimed to have overlooked information that Ms Erasga and Mr Banga had a cleaning business, as well as Ms Iradiel’s statutory declaration. If this was really the reason why the Tribunal re-opened the case it would simply have re-written the First Decision but taken that previously overlooked evidence into account. On its own account, there was no reason for the Tribunal to go online and search out the Facebook pages of Ms Erasga and Mr Banga or the internet coverage of their cleaning business.
Ms Erasga submits that the Court ought to infer that the Tribunal, having undertaken unauthorised searches of private information about Ms Erasga and Mr Banga in their Facebook accounts, decided on unjustified grounds to re-open the case on the “spurious” basis that it had failed to consider material which it had in fact considered, and which was in any event of peripheral relevance to the application. Having re-opened the case on a “spurious” basis, the Tribunal then embarked on an unauthorised inquiry into matters which had not come to light before the First Decision but which the Tribunal believed to be prejudicial to Ms Erasga’s case. The Tribunal’s unauthorised conduct continued through the second hearing, the letter sent to Ms Erasga on 7 November 2016, and to the Second Decision made on 6 December 2016.
Ms Erasga contends that a fair-minded observer would be very concerned about the Tribunal’s conduct, which strongly suggested that the Tribunal had formed a very adverse view of her, such that warranted further inquiry even though the Tribunal had already made a decision to affirm the refusal of the visa. This is said to readily meet the threshold for apprehended bias; namely that a fair-minded lay person might (not would) think that the decision-maker might not bring a fair and impartial mind to the making of the decision.[92]
[92] SZQHH at [37] (Rares and Jagot JJ)
There is authority that events occurring after a decision are capable of evidencing that a biased state of mind existed at the time of the decision. Thus, in MZWCL v Minister for Immigration[93] Finn J considered the publication of a law journal article jointly written by the Tribunal member well after the decision of that same member to affirm the refusal of an application for a protection visa. The article was entitled, “Not Enough Official Torture in the World? The Circumstances in which Torture is Morally Justifiable”, and argued that, in certain circumstances, State-sanctioned torture was morally justifiable. The appellant had claimed that the article gave rise to a reasonable apprehension that the Tribunal member was or may have been biased. His Honour at [46], accepted that the article was “doubtless apt to engender a hostile response”, but it was not capable of firmly establishing reasonable apprehension of bias, since the expressed views were “nonetheless related to the more general subject of torture which arises regularly in Tribunal proceedings”. His Honour went on, at [47]:
For the bias rule to avail the appellant there must be such a connection between the views expressed in the article and the issues determined by the Tribunal member in the appellant’s case as to firmly establish the possibility of an operative preformed judgment in the determination of those issues. I do not consider there to be such a connection.
[93] [2006] FCA 635
In the present case Ms Erasga contends that there was a strong and direct connection between the Tribunal’s conduct after the First Decision and the issue which it had determined in that decision; namely, that the parties did not have a mutual commitment to a shared life to the exclusion of all others and that their relationship was continuing. Accordingly, Ms Erasga contends that the requirement for apprehension of bias in made out.
The Minister’s contentions
Ground 2 is premised on the proposition that the First Decision was not affected by jurisdictional error (at the time it was made) and, because it was not affected by jurisdictional error, the Tribunal did not have the authority to revoke (or “re-open”) the First Decision or to treat it as a nullity. However, the Minister contends that the Tribunal was correct to consider that the First Decision was affected by jurisdictional error. Having correctly formed that view, it was open to the Tribunal to “re-open” its review. The premise underlying Ground 2 is said not to be made out and the ground is said to fail. The Minister submits that if the Court is satisfied that the First Decision was (when made) affected by jurisdictional error, the Second Decision remains extant and operates as an affirmation of Ms Erasga’s visa application.
Jurisdictional error in the First Decision?
In the Second Decision, the Tribunal stated[94] that there was evidence before it that it had not taken into account, and stated that this failure was the reason why it formed the view that it had, in the First Decision, fallen into jurisdictional error. In this respect, the Tribunal identified the evidence not considered as:
a)evidence that Ms Erasga and Mr Banga had formed and conducted a cleaning business together; and
b)a statement from Ms Iradiel.
[94] at CB 657 [26]
This evidence is said to have been significant to the claims made by Ms Erasga (as explained below), and the Tribunal was correct to conclude that jurisdictional error resulted from not considering it.
The Cleaning Business
From the outset, one claim that Ms Erasga relied on to establish that she was in a de facto relationship was that she had established, and was developing, a cleaning business, Eastern Suburbs Cleaning Services (the Cleaning Business), with Mr Banga. The Cleaning Business was specifically identified by Ms Erasga, in the covering letter to her visa application,[95] as being relevant to the parties’ financial circumstances. Her statutory declaration provided with, and in support of, the visa application[96] also expressly refers to the Cleaning Business as being an important aspect of the financial circumstances of the parties’ relationship. Furthermore, in response to the Tribunal’s hearing invitation (prior to the First Decision), Ms Erasga provided a bundle of supporting documents to the Tribunal.[97] The first document provided was a record that the Cleaning Business had been registered on the Australian Business Register and had been granted an ABN.[98] Ms Erasga also provided to the Tribunal at the first hearing a brochure for the Cleaning Business,[99] and the Cleaning Business was raised by Ms Erasga and her migration agent at the hearing.[100]
[95] CB 2
[96] at CB 63-65
[97] see CB 409 onwards
[98] CB 412
[99] CB 601
[100] H1, 51.30
Ms Erasga asserts, in her submissions, that it is “inconceivable” that the Tribunal overlooked this evidence (see [38] above). However, it is said to be plain that it did do so. The Tribunal, at [6] and [26] of the Second Decision, squarely states that it did not consider the evidence about the Cleaning Business in reaching the First Decision.[101] Ms Erasga identifies no basis on which that statement should not be accepted, and no suggestion of bad faith by the Tribunal is made (ie. That the Tribunal did consider the matter, but wrote that it did not). Moreover, at the beginning of the second hearing, the Tribunal stated that documents provided at the first hearing (which included the brochure for the Cleaning Business[102]) had not been placed on the Tribunal’s file “and I hadn’t taken into regard when I was making my decision”. The Tribunal member also repeats that she did not make a finding about the Cleaning Business.
[101] CB 654, 657
[102] see CB 601
Moreover, there is simply no reference to the Cleaning Business at all in the First Decision. That absence is said to strongly support, in this case, the inference that the Tribunal did fail to consider Ms Erasga’s claim about the Cleaning Business and the evidence given about it.[103] Ms Erasga identifies no proper basis to find that the Tribunal did, contrary to its statement, consider Ms Erasga’s claim about the Cleaning Business or the evidence advanced in support.
[103] cf. eg. Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at [46]-[47]; Minister for Immigration v MZYTS (2013) 230 FCR 431 at [52]; Minister for Immigration v SZSRS (2014) 309 ALR 67 at [32]-[34]
The Tribunal’s failure to consider Ms Erasga’s claims about the Cleaning Business is said to have been a clear case of jurisdictional error.[104] Ms Erasga’s claim as to the existence and operation of the Cleaning Business, and the evidence in relation to it, went directly to the integers that the Tribunal was required to consider under regulation 1.09A(3). In particular, regulation 1.09A(3)(a) obliged the Tribunal to consider the financial aspects of the relationship. Plainly, the existence of a joint business owned, started and operated by Ms Erasga and Mr Banga together is relevant to the financial aspects of their relationship (and was presented by them as being so), including to matters such as the pooling of financial resources and the existence of joint assets and liabilities. Indeed, as referred to above, Ms Erasga herself attached importance to the idea that the parties were conducting the Cleaning Business together, and the evidence provided by her about it, as being relevant to the financial aspect of their relationship.[105]
Statutory declaration of Ms Iradiel
[104] see eg. Htun v Minister for Immigration (2001) 233 FCR 136 at [42]; NABE v Minister for Immigration (2003) 144 FCR 1 at [55]-[63]
[105] CB 2; 65
The statutory declaration of Ms Iradiel was provided to the Tribunal at the first hearing,[106] and explained that Ms Iradiel had known Ms Erasga for five years, Mr Banga for two years, and considered that they were in love and that their relationship was genuine and ongoing. Again, the Tribunal expressly stated, in the Second Decision, that it had not considered this statutory declaration, and had not taken it into account.[107] There is no reference to Ms Iradiel’s statutory declaration in the First Decision. Again, there is no basis to conclude other than the Tribunal did not, as it said, consider that document. Ms Erasga refers to the Tribunal’s statement that it had “read the witness statements” before it, and alleges that this must have included Ms Iradiel’s statement. However, the Tribunal’s statement was plainly made at the time of writing the First Decision, ie. before the Tribunal realised there were further documents (including Ms Iradiel’s statement) that had been overlooked (because, it seems, that they had been provided at the Tribunal’s hearing but not placed on the Tribunal’s file.[108]
[106] CB 599-600
[107] CB 654 [6]; 657 [26]
[108] see H2, 2.22
Also, contrary to the applicant’s submissions, Ms Iradiel’s witness statement was not “immaterial” (see [41] above]. The statement went directly to the integers that the Tribunal was required to consider under regulation 1.09A(3), such as the social aspects of the relationship and the nature of the parties’ commitment to each other. It cannot be concluded that the Tribunal’s failure to consider it could not have made a difference to the decision.
Accordingly, the Minister contends that the Tribunal was correct to consider that the First Decision was affected by jurisdictional error, and either of the above is sufficient, by itself, to amount to jurisdictional error in the First Decision (ie. even if the Tribunal were wrong about one of its two failures amounting to jurisdictional error, the other failure nonetheless resulted in jurisdictional error). Ms Erasga refers to Mora, and submits that the Tribunal is under no duty to revoke a decision affected by jurisdictional error or to treat it as a nullity. Rather, Ms Erasga submits that the duty of the Tribunal is “to consider whether it would be wise for that power to be exercised”. The Minister submits that this should be rejected. Mora is a Tribunal decision and is not binding on this Court (or the Tribunal in this case).
Moreover, Mora is said not to be consistent with the recent decision in Minister for Immigration v CLV16.[109] In that case, the Authority had made two decisions on its review. After the first decision, the Authority concluded that it had failed to consider a submission advanced by the review applicant, and thus “re-opened” its decision because that failure amounted to jurisdictional error. The Full Federal Court found that, in circumstances where the Authority had fallen into jurisdictional error, it was entitled to re-visit its decision, as it had done.[110] Their Honours followed Gaudron and Gummow JJ in Minister for Immigration v Bhardwaj[111] in emphasising that “where a purported decision involves jurisdictional error there is ‘no legal impediment’ in the path of a decision-maker making a fresh decision as ‘the duty to make a decision remains unperformed’”.[112] It follows that, the Tribunal having correctly identified that it fell into jurisdictional error, it was open to it to re-visit or “re-open” its decision, so as to complete its obligation to review. Moreover, in CLV16, their Honours do not identify or suggest any requirement, as Ms Erasga here suggests, that the Tribunal consider whether it is “wise” to do so. Even if that were a requirement (which the Minister does not concede), it is difficult to see why it would not have been “wise” for the Tribunal to do so in this case. Its jurisdictional error was readily apparent, and by re-opening the matter, all of Ms Erasga’s claims and evidence would be considered, which had not been done in the First Decision.
[109] [2018] FCAFC 80
[110] see especially at [59]-[90]
[111] (2002) 209 CLR 597
[112] at [88]
The Minister contends that, as the Tribunal had fallen into jurisdictional error in making the First Decision, the course taken by the Tribunal was open to it. Accordingly, the ground must be dismissed.
Apprehended bias?
Ms Erasga further alleges that, while the First Decision was not (when made) affected by jurisdictional error, the Tribunal’s subsequent conduct gave rise to a reasonable apprehension that the Tribunal did not bring a fair and impartial mind to the making of the First Decision. However, even if Ms Erasga were correct that the First Decision was not (when made) affected by jurisdictional error, no apprehension of bias arose in relation to that decision by reason of conduct engaged in after it was made.
The test of apprehended bias was set out in Ebner v Official Trustee in Bankruptcy[113]at [6]: whether “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”. It has been emphasised that three steps that must be considered before an apprehension of bias can be established. First, there must be an identification of the matter which might lead the Tribunal to decide the case otherwise than on its merits. Secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. Thirdly, consideration must be given to the reasonableness of the apprehension of the feared deviation being caused by the matter identified in the first step.[114]
[113] (2000) 205 CLR 337
[114] Ebner at [8]; Isbester v Knox City Council (2015) 255 CLR 135 at [59]
It is difficult to see how, in this case, conduct engaged in after the First Decision[115] could give rise to a reasonable apprehension that the Tribunal member might not decide the case otherwise than on its merits. If, as Ms Erasga alleges, no jurisdictional error occurred in that decision, then nothing the Tribunal did after the First Decision could have affected it in any way.[116] Ms Erasga suggests, in her submissions, that the fair minded observer would be “very concerned” about the Tribunal’s conduct, because it suggests that the Tribunal had “formed a very adverse view of the [applicant], such that warranted further inquiry even though the Tribunal had already made a decision to affirm the refusal of the visa”.[117] However, the fair-minded observer would not hold that view because he or she would be aware that there would simply be no point in those “further inquiries”, given that the Tribunal’s decision could not legally be changed. To the contrary, the fact that the Tribunal member was prepared to re-open and re-consider material she had overlooked would lead the fair-minded observer to the opposite conclusion, that the Tribunal member was prepared to make her decision afresh and to consider whether the additional material might lead to a different (more favourable) decision. Also, nothing in the First Decision is suggestive of the Tribunal holding a “very adverse view” of Ms Erasga, as she now suggests. Indeed, the suggestion in Ms Erasga’s submissions, that the Tribunal “had formed a very adverse view of the Applicant…” is suggestive of actual bias by pre-judgement[118], but no such claim of bias is made. Further, care must be taken in focusing on what the Tribunal did after the First Decision, as it may lead to an inversion of the proper order of inquiry.[119]
[115] in particular, the Tribunal visiting Ms Erasga’s Facebook account and conducting searches about the Cleaning Business: see applicant’s submissions at [46] and [49] above
[116] see s.368(2A) of the Migration Act
[117] see [50] above
[118] see also [49]-[50] above
[119] by first assuming the existence of a reasonable apprehension: cf. Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 at [33] and [67]
In any event, the Minister contends that nothing the Tribunal did after the First Decision would give rise to a reasonable apprehension of bias. As noted above, the Tribunal explained[120] that it became aware, after the First Decision, that it had not taken into account evidence that Ms Erasga had provided. The Tribunal indicated, at [27] of the Second Decision, that it began to consider Ms Erasga’s evidence about the Cleaning Business and, in doing so, looked at Ms Erasga’s and Mr Banga’s Facebook pages to see if there were any references to the business. There is nothing unusual in doing so, the parties had previously given evidence about their use of Facebook, and their Facebook pages could reasonably be expected to contain some reference to or details about the business. The Tribunal further explained, still at [27], that it could not find any information about the Cleaning Business anywhere (on Facebook, or any other website), but it did note that Ms Erasga and Mr Banga were not “friends” on Facebook. Given these matters, the Tribunal decided to hold a further hearing, in order to allow Ms Erasga to give evidence about these matters and to address the Tribunal’s concerns.
[120] in the Second Decision, at [6] and [26]
Ms Erasga alleges that these “searches” were “unauthorised”. That is not so, because the First Decision was affected by jurisdictional error and the Tribunal’s review function remained unperformed. However, even if they were “unauthorised” (because the First Decision was valid), no apprehension of bias arose from them. Plainly, the Tribunal was of the view that it did make a jurisdictional error, and thus needed to complete its review. Even if that view were legally wrong, it was one actually held by the Tribunal, and there is no basis to consider it was not held bona fide (and no allegation of bad faith or the like is made by Ms Erasga). The “searches” undertaken by the Tribunal were simply the Tribunal taking steps that it thought were necessary in order for it to properly consider Ms Erasga’s claims about the Cleaning Business (which it had failed to do in the First Decision). Those steps gave light to other information the Tribunal was concerned about (ie. what was on the Facebook pages). No apprehension of bias arises from the Tribunal attempting to perform the legal obligation that it considered it was under (ie. to consider all of Ms Erasga’s claims). Moreover, the Tribunal invited Ms Erasga to a further hearing in order to give evidence in relation to the matters the Tribunal had identified and was concerned by. It also later sent Ms Erasga a letter pursuant to s.359A about certain information. The Minister submits that the taking of these steps is suggestive of a mind open to persuasion, ie. the Tribunal is identifying its concerns to Ms Erasga and inviting comment about them. No reasonable apprehension of bias is said to arise from the Tribunal’s conduct undertaken after the First Decision was made.
Resolution
The circumstances in which the Tribunal re-opened the review in this case are somewhat surprising. Those circumstances elicit interest but do not in my view give rise to an apprehension, in the mind of a fair-minded observer, aware of the relevant facts and circumstances, that the Tribunal might not have brought an unprejudiced mind to bear upon the review. Indeed, as a general proposition, the re-opening of a review that has already been determined adversely to an applicant, ordinarily works to the advantage of an applicant, in that the applicant is given a further opportunity to seek to persuade the Tribunal to make a more favourable decision.
The essence of Ms Erasga’s case is that the Tribunal used the re-opened review to bolster its decision adversely to the applicant, and engaged in enquiries which were unnecessary or inappropriate. My view of the circumstances, and I would suggest those of a well informed and fair-minded observer, are more benign.
It is likely that the Tribunal was stimulated to re-open the review by the Freedom of Information request made on behalf of Ms Erasga. That request only sought the sound recording of the first Tribunal hearing but it appears from the transcript of the second Tribunal hearing that the Tribunal member may have thought that the request was for the Tribunal file. The Tribunal was informed or came to the view that at least two documents were not on that file (the brochure for the cleaning business and the statutory declaration by Ms Iradiel, both of which had been handed up at the first Tribunal hearing). The brochure or “flyer” was not in my view of particular importance if the claim that the applicant and sponsor operated a cleaning business together had been accepted. The Minister invites the Court to accept that not just the brochure but the entire claim of the operation of a cleaning business was overlooked. That would be surprising, as that claim was made consistently both in writing and orally at the First Tribunal hearing. However, the silence of the Tribunal in its First Decision leaves open that possibility. The Tribunal’s reference at [6][121] of it having overlooked “information” and its reference at [26] to it not having taken into account “evidence” covers both the possibility that the document or the entire claim had been overlooked.
[121] CB 654
The statement by Ms Iradiel was in my view more important because it was the only corroborative evidence from a friend or family member of the genuineness of the relationship that was proximate to the Tribunal decision. While the earlier supportive statements bore on the existence of a relationship at the time of the visa application, they were stale by the time of the Tribunal decision and the statement of Ms Iradiel was therefore important in the consideration as at the time of decision. Although the statement is referred to at [26][122] of the Second Decision it was not discussed in the Tribunal’s reasoning. That is surprising as the statement was one of the reasons for re-opening the review. The Tribunal’s silence, however, on that statement in its Second Decision does not support an apprehension of bias. The statement by Ms Iradiel is probably included in the reference to “all the witness statements” at [52].[123]
[122] CB 657
[123] CB 662
I see nothing sinister in the Tribunal accessing the Facebook accounts of Ms Erasga and Mr Banga. It is tolerably clear that the Tribunal was stimulated to do so once it had realised that either the cleaning business brochure, or the entire claim of operation of a cleaning business, had been overlooked. The Tribunal’s action followed hard on the heels of its decision to re-open the review. The fact that that examination of the Facebook accounts gave rise to other concerns by the Tribunal is entirely coincidental. As is clear from the First Decision at [31][124] Ms Erasga and Mr Banga had themselves provided evidence of their Facebook accounts and communications between them on Facebook. Having re-opened the review, it was perfectly reasonable for the Tribunal to check that the accounts actually existed and to see what was publicly available in them.
[124] CB 611-612
I reject Ms Erasga’s contention that the reviews are vitiated by an apprehension of bias. It was necessary for the Tribunal to re-open the review, having overlooked the statement by Ms Iradriel and, arguably, having overlooked the entire claim of the operation of the Cleaning Business. In those circumstances it was both open to the Tribunal to re-open the review and appropriate that it should do so. The cautionary guidance provided to Tribunal members in Mora did not provide any legal obstacle in this case. In that regard, I do not accept that the Tribunal decision in Mora is inconsistent with judicial authority. The Tribunal in Mora was simply providing practical guidance in order to ensure that Tribunal reviews are not re-opened excessively.
Conclusion
The applicant has failed to establish that the Second Decision of the Tribunal is affected by any jurisdictional error. That decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 March 2019
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