He v Minister for Immigration

Case •

[2008] FMCA 1437

•

21 October 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HE v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1437
MIGRATION – VISA – Other Family (Migrant) (Class BO) visa – Migration Review Tribunal – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.359A – whether Tribunal failed to address the applicants’ claims – whether Tribunal failed to undertake its review function under Migration Act 1958 s.348(1) – whether Tribunal failed to comply with Migration Act 1958 s.360 – apprehension of bias – whether Tribunal misconstrued Migration Regulations 1994 (Cth) reg 1.15A – whether Tribunal made finding where there was no evidence – whether Tribunal failed to give genuine consideration to the evidence – jurisdictional error – certiorari – mandamus.
Australian Citizenship Act 2007 (Cth) s.12
Evidence Act 1995 (Cth) s.144
Family Law Act 1975 (Cth) ss.48, 55A, 67Q
Migration Act 1958 (Cth) ss.348, 359, 359A, 360, 363, 365
Migration Regulations 1994 (Cth) reg 1.15A
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Tran v Minister for Immigration and Multicultural Affairs [1998] FCA 290
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration and  Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510
SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609
Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 followed
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Johnson v Johnson (2000) 201 CLR 488
Commonwealth v Sciacca (1990) 96 ALR 455
SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389
SZJYA v Minister for immigration and Citizenship (No 2) [2008] FCA 911
Minister for Immigration and Multicultural and Indigenous affairs v SCAR (2003) 128 FCR 553
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470
SZIIF v Minister for Immigration and Citizenship [2008] FCA 913
SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724
SZLPG v Minister for Immigration and Citizenship [2008] FMCA 820
Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212; [2001] FCA 56 followed.
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152
Smith v Caltex Australia Petroleum Pty Ltd (2004) 80 ALD 106
Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123
SFGB v Minister for Immigration and Multicultural Affairs (2003) 77 ALD 402
Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286
VWFP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231
Applicant: XIU ZHEN HE
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 3618 of 2007
Judgment of: Scarlett FM
Hearing date: 17 July 2008
Date of Last Submission: 17 July 2008
Delivered at: Sydney
Delivered on: 21 October 2008

REPRESENTATION

Applicant’s Counsel: Mr Lloyd
Solicitors for the Applicant: Kah Lawyers
Counsel for the First Respondent Mr Reilly
Solicitors for the Respondents Australian Government Solicitor

ORDERS

  1. That there be an order in the nature of certiorari quashing the decision of the Migration Review Tribunal signed on 17 October 2007 and handed down on 26 October 2007.

  2. That there be an order in the nature of mandamus directed to the Second Respondent Migration Review Tribunal requiring it to determine the application of the visa Applicants for Other Family (Migrant) (Class BO) visas according to law.

  3. The First Respondent is to pay the Applicant’s costs fixed in the sum of $19,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3618 of 2007

XIU ZHEN HE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant, who was the review Applicant before the Migration Review Tribunal, asks the Court to review a decision of the Tribunal signed on 17th October and handed down on 26th October 2007. The Tribunal affirmed the delegate’s decision not to grant the visa Applicants Other Family (Migrant) (Class BO) visas.

  2. The Applicant seeks writs of certiorari and mandamus.

  3. The Applicant relies on the following grounds:

    a)The Second Respondent, the Migration Review Tribunal failed to comply with s.359A of the Migration Act, by not giving the Applicant an opportunity to comment upon adverse evidence that was part of the reason for affirming the decision and was information that undermined the Applicant’s claims. Particulars of that ground are:

    i)The Applicant’s ex-husband was granted a visitor visa on the (false) basis that he claimed on the application that his wife and child would remain in China; and

    ii)The visa Applicant did not declare that she was married or pregnant in her visa application in 1993.

    b)The Tribunal erred by failing to address the claims that were made and, in some respects, addressing claims that were not made or in misunderstanding the claims that were made. This constitutes jurisdictional error.

    c)The Tribunal misunderstood and failed to undertake its proper review function under s.348(1) of the Act in failing to appreciate that part of its job is to consider and review the material that was before the delegate.

    d)The Tribunal failed to comply with s.360 of the Act in failing to give the Applicant an opportunity to give evidence and present arguments in relation to all issues that arose in relation to the decision under review. Particulars of that ground are:

    i)The Tribunal did not raise all the matters that were issues in its ultimate decision, including:

    ·     whether the extended family was in constant communication with the missing children; and

    ·     whether the witnesses were willing to testify to anything in order to assist the visa Applicant.

    ii)The Tribunal was under an implied obligation to consider all of the material before the delegate in advance of the hearing so that it could properly determine what were and raise all of the issues that the review Applicant was entitled to address bit it did not do this.

    iii)The Tribunal made statements that led the Applicant not to pursue the oral evidence that it otherwise wished to present – namely that it had accepted certain matters. After the hearing and in its decision it recanted from the matters that it accepted. This meant that the Applicant lost her opportunity to advance oral evidence in support of her claims. The Tribunal’s processes were unfair and did not comply with s.360 of the Act.

    e)The course taken by the Tribunal was such that it would give rise to a reasonable apprehension of bias.

    f)The Tribunal misconstrued reg1.15A of the Migration Regulations 1994.

    g)There was no evidence to support the finding by the Tribunal that the Applicant’s immediate family, including her ex-husband, were all living together at the time of divorce; and

    h)The Tribunal failed to exercise its jurisdiction by failing to give genuine consideration to the evidence advanced by the Applicant, and on her behalf, in particular each of the statements advanced by the witnesses.

Background

  1. The Applicant in this proceeding is the review Applicant. Her daughter, Shao Qiong Su, a woman who was born on 5th November 1967, is one of the two visa Applicants. The other visa Applicant is the Applicant’s grandson, Michael Naikang Xia, who was born on 8th October 2003. The visa Applicants are nationals of China.

  2. Ms Su and Michael applied for a Remaining Relative Visa Subclass 115 on 26th July 2005. Their application was received by the Minister’s Department on 1st August 2005.[1]They were nominated by the review applicant.[2] To be eligible for a Remaining Relative visa, the visa Applicant, Ms Su, needs to be a “remaining relative” in accordance with reg 1.15 of the Migration Regulations 1994.

    [1] Court Book 3

    [2] Court Book 21

  3. In her application, Ms Su stated that she was divorced[3] and had four children:

    i)Kitty Xia, a girl born on 3rd March 1994;

    ii)Alice Xia, a girl born on 31st May 1999;

    iii)Eda Xia, a girl born on 21st December 2001; and

    iv)Michael Naikang Xia, a boy born on 8th October 2003.[4]

    [3] Court Book 5

    [4] Court Book  7

  4. She disclosed that Kitty was born in Australia and is an Australian citizen. Alice, Eda and Michael were also born in Australia, although they remain citizens of the People’s Republic of China. Ms Su stated that only Michael was seeking to migrate with her.

  5. In answer to question 51 on the form, Ms Su stated that the older three children were not in her care and legal custody. She stated:

    KITTY – WITH GRANDPARENTS

    ALICE – WITH FATHER

    EDA – WITH FATHER[5]

    [5] Court Book 8

  6. Ms Su also set out that her parents and her four siblings were all living in Australia. She stated that Kitty, Alice and Eda were all living in Australia but Michael was living in China.[6]

    [6] Court Book 11

  7. Ms Su provided personal details in order to comply with the criteria in regulation 1.15 of the Migration Regulations. Her solicitor, Mr Michael Kah, prepared a detailed submission on her behalf. She stated that that she had no overseas near relative except Michael, who is under the age of 18 years and wholly in her care. She also stated:

    The applicant has no spouse. She was divorced on 16 December 2004 and has no overseas near relative outside Australia.[7]

    [7] Court Book 33

  8. The submission referred to the situation of Alice Xia and Eda Xia:

    The Applicant’s other two children, Alice Xia (DOB 31/5/1999) and Eda Xia (DOB 21/12/2001) are not included in the application as the Applicant is unaware of their current whereabouts. She believes that the children are currently with their father somewhere in Australia.[8]

    [8] Court Book 41

  9. The Applicant’s submission went on to explain what the Applicant knew about the two girls:

    Alice and Eda are under the care of their father and the Applicant is unaware of their location. They were scheduled to depart Australia with their grandfather on or about 5 October 2004. Airline tickets were issued, which DIMIA has a record of.

    Before their departure, their father requested to take the children out to dinner before they departed to China. The children went to dinner with their father and did not return. The Applicant has not been able to contact them nor has the Applicant’s family. The children and their father are unlawful. We however submit that Alice and Eda being minors are innocently unlawful, who are unable to independently regularise their status.[9]

    [9] Court Book 42

  10. The first visa Applicant, Ms Su, provided a number of documents in support of her application, including a statement. In her statement, Ms Su set out that she was the eldest of five children. Her parents and siblings came to Australia on 3rd August 1992. She remained in China and was married on 11th June 1993.

  11. Ms Su arrived in Australia on 13th December 1993. She was pregnant, and her daughter Kitty was born on 3rd March 1994. Her visa expired on 30th June 1994. She obtained a further visa to stay in Australia until 20th February 1995. She applied for permanent residency but was not successful. Her husband arrived in Australia in September 1998.

  12. The visa Applicant gave birth to her second and third daughters, Alice and Eda in 1999 and 2001. She gave birth to Michael in 2003.

  13. Ms Su stated that her relationship with her husband had been deteriorating since 2003 and they separated in October 2003. She stated:

    During 1999 I discovered that my former husband had a girlfriend in China. He denied this at first and then later admitted that it was not serious and it was only the once off. I accepted this and though(t) that he would not continue his relationship with her, as we were now in Australia. However, in July 2002 the same lady called from China and hung up when she realised I had answered. I confronted my husband about this. He once again denied it but later during another argument admitted that the relationship had continued with this woman[10]

    [10] Court Book 69

  14. The visa Applicant went on to state:

    Some time in mid 2003 I overheard my husband having a conversation with this woman again and we had a big argument. It was then when he finally said that he would agree to a divorce if I wanted a divorce...

    Our divorce became final on 16 December 2004…

    On 30 September 2004 I left Australia alone. Alice, Eda and Michael were scheduled to leave with my father on the 5 November 2004 as they were waiting for the decision of the Australian High Court…

    Before the children left for China, their father requested to take Alice and Eda out to dinner a day or two before they were due to depart…

    I understand from my father that Alice and Eda went to dinner with their father and did not return. I am very worried about them and have done every thing within my power to locate them. My family have tried to find my former husband and the children but have been unsuccessful. My father travelled to China with Michael as planned and we are continuing to look for Alice and Eda at the present time…

    I now don’t know where Alice and Eda are. Michael and I are now alone in China and I hope to be soon reunited with my family and children.[11]

    [11] Court Book 70-71

  15. Ms Su supplied a statutory declaration by the review Applicant, her mother, and statements by a number of other people, being friends of the family. She also supplied her certificate of divorce in proceedings PAM 4847/2004 before the Federal Magistrates Court at Parramatta, showing that the decree nisi of dissolution of marriage became absolute on 16th December 2004.

  16. The Australian Consulate General in Guangzhou wrote to the visa Applicant’s solicitors on 18th September 2006, inviting Ms Su to attend an interview on 9th October 2006. Ms Su attended the interview and the record of that interview appears at pages 115 to 117 of the Court Book.

  17. The Australian Consulate General later wrote to the visa Applicant’s solicitors on 24th November 2006 advising that a decision had been taken to refuse the grant of the visa. The Decision Record appears in the Court Book at pages 120 to 126.

  18. The Minister’s delegate referred to the supporting statements and made these comments:

    While I have taken these statements into consideration, I note that none are accompanied by proof of the authors’ identities. I also note that two statements purport to be written by one person but are signed by another. Furthermore, a number of the statements claim that the applicant and XIA Chuang Ying divorced in September 2004 yet her certificate of divorce shows that application for divorce was made on 15 November 2004 and the divorce was finalised on 16 December 2004. Having carefully considered these statements, for the reasons outlined above, I give them only limited weight[12].

    [12] Court Book 124

  19. The delegate went on to find:

    On the basis of the above issues, notwithstanding the termination of their legal marriage, I am not satisfied that the applicant and her ex-husband are permanently separated. I conclude that SU Shao Qiong and her (sic) XIA Chuang Ying share the upbringing of their children and that Ms Su is co-operating with Mr Xia in harbouring the children in Australia.[13]

    [13] Court Book 126

  20. The delegate considered that the visa Applicant and her ex-husband were still in an on-going spousal relationship and, accordingly, considered whether the ex-husband had any overseas near relatives. Because he did have overseas near relatives, the application was not successful.

  21. The review Applicant, Ms He, applied to the Migration Review Tribunal on 18th December 2006 for a review of the delegate’s decision. No additional documentary evidence was supplied to the Tribunal at the time of application for review.

Application to the Migration Review Tribunal  

  1. The Tribunal wrote to the review Applicant on 2nd April 2007 under the provisions of s.360 of the Migration Act, inviting her to attend a hearing of the Tribunal on 22nd May 2007.

  2. The review Applicant’s solicitors wrote to the Tribunal on 17th May 2007, enclosing their submissions, along with a statement from the visa Applicant, a number of statutory declarations from other people, copies of the birth certificates of the children Alice and Eda, and the passports of the review Applicant and other people who had made statutory declarations.

  3. The review Applicant attended the hearing on 22nd May 2007 and gave evidence with the assistance of a Cantonese interpreter. The Tribunal spoke to Ms Su by telephone link to China. The Tribunal also took evidence from Mr Yu Ying, Ms Su’s father, and Ms Pei Ling Cai.

  4. The day after the hearing, 23rd May 2007, the Tribunal faxed to the Applicants’ solicitor movement records for Alice Xia, Eda Xia and Chuang Ying Xia.

  5. The Tribunal wrote to the review Applicant care of her solicitors on 23rd May 2007, inviting her to provide information under the provisions of sub-section 359(2) of the Migration Act. The letter invited the review Applicant to provide:

    Copies of travel documents or passports of Eda Xia, Alice Xia and Kitty Xia.[14]

    [14] Court Book 220

  6. The following day, the Tribunal wrote another letter under s.359(2), this time requesting:

    Copy of custody orders or any documents relating[15] custody orders for the children name Ms Eda Xia and Ms Alice Xia.[16]

    [15] sic

    [16] Court Book 228

  7. The Tribunal also, on 24th May 2007, provided a tape recording of the Tribunal; hearing to the Applicants’ solicitors.

  8. The Applicants’ solicitors replied on 1st June 2007, forwarding certified copies of:

    i)the passport of Kitty Xia;

    ii)the travel document of Shihua Xia (Eda Xia);

    iii)the travel document of Yubing Xia (Alice Xia); and

    iv)signed page 6 of statement by Shao Qiong Su dated 18 May 2007.

  9. The solicitors advised:

    In respect to the custody arrangements of the children at the time of the divorce, all the children were in the sole custody of the visa applicant and it was informally agreed between the parties that those arrangements would continue. Neither party, as far as the visa applicant is aware, has made any application for formal custody orders. We have inquired with the solicitors who were retained by the visa applicant in respect to her divorce who have confirmed that no parenting/custody orders were made.[17]

    [17] Court Book 234-235

  10. The Tribunal wrote to the Applicants’ solicitors on 7th June 2007. This letter was written under the provisions of s.359A of the Migration Act asking the review Applicant to comment on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The letter set out information about the divorce proceedings, the circumstances whereby the children’s father took Alice and Eda out to dinner and did not return them, the “extraordinary determination” and “extraordinary efforts” to ensue that Ms Su, her husband and the children remained in Australia over many years.

  1. The Tribunal requested comment on the information that:

    Section 55(A)[18] of the Family Law Act provides that where there are children of the marriage who are not 18, they are to be specified in the order. Otherwise the order does not take effect.[19]

    [18] sic

    [19] Court Book 249

  2. The Tribunal went on to say:

    The Tribunal understands that unless there is a s.55A declaration by the Court, then the divorce would not have become absolute, and if it did without such a declaration, then the divorce may not be valid.[20]

    [20] Court Book 250

  3. The Tribunal requested the review Applicant’s comments in writing by 5th July 2007.

  4. The Applicants’ solicitors replied in a letter dated 13th June 2007, which was not received by the Tribunal until 27th July 2007, enclosing a copy of the application for divorce. They also provided comments about the other issues and provided supplementary declarations by:

    a)Yu Ying Su;

    b)Zhong Guang Su;

    c)Shao Mei Su; and

    d)Zhong Lin Su.

  5. The solicitor’s letter refers to the Tribunal’s comments in the s.359A letter that the fact that two children were taken by the father “further indicates that the divorce between the visa applicant and her ex-husband may not be valid, or that it has been contrived in order to circumvent Australia’s Migration Regulations[21] and said:

    The Family Court[22] was satisfied that the marriage relationship had ended and appropriate arrangements had been made in respect to the children of the marriage as evidenced by the decree being declared absolute. The fact that the children are not with the visa applicant prejudice(s) her migration application rather than assist(s) her and consequently diminish any suggestion of contrivance between the parties.[23]

    [21] Court Book 250

    [22] sic. The divorce proceedings were held in the Federal Magistrates Court.

    [23] Court Book 256

  6. The letter also referred to the Tribunal’s comments in the s.359A letter:

    It may also lead the Tribunal to impugn as untruthful any or all of the oral and written evidence provided to it by you, the visa applicant, Mr Yu Ying Sing and other witnesses and signatories of statutory declarations and hence may form the reason, or part of the reason for affirming the decision under review.

  7. The solicitors’ letter said:

    The Tribunal appears to discredit all deponents in statutory declarations and at hearing. It is unclear from the Tribunal’s letter whom it discredits and the particulars of evidence that the tribunal disputes. We require particulars of what the Tribunal specifically disputes so that we can properly answer and provide further evidence.[24]

    [24] Court Book 260-261

  8. Mr Lloyd, who appeared for the review Applicant, submitted that the particulars requested were not provided.

  9. The Applicants’ solicitors also provided the Tribunal with a statutory declaration by Christopher Dunn, solicitor, whose firm had appeared on behalf of Ms Su at the hearing before the Federal Magistrates Court.

  10. The Applicants’ solicitors sent a fax message to the Tribunal on 3rd July 2007, requesting an extension of time to provide comments, as two of the tapes of the Tribunal hearing had been found to be defective. The Tribunal replied on 4th July, enclosing two replacement tapes. The Tribunal also granted an extension of the time to provide comments until 1st August 2007.

  11. The Tribunal wrote to the review Applicant’s solicitors on 29th August 2007 seeking additional information. The letter was expressed in terms of s.359 and s.359A and sought a reply by 26th September 2007.

  12. The review Applicant’s solicitors provided and made closing submissions in a letter dated 24th September 2007. The letter included a statutory declaration by Shao Lan Su dated 17th September 2007.

The Migration Review Tribunal Decision

  1. The Tribunal handed down its decision on 26th October 2007, affirming the decisions not to grant the visa Applicants Other Family (Migrant) (Class BO) visas.

  2. In its Findings and Reasons, the Tribunal found that the review Applicant is an Australian citizen by grant.

  3. The Tribunal first considered whether the visa Applicant had a spouse, referring to regulation 1.15(1)(c) and 1.15(1)(d). The Tribunal noted the divorce certificate and said:

    However, just as a marriage certificate is necessary but not sufficient evidence of a marriage, a divorce certificate is necessary but not sufficient evidence that the visa applicant and Mr Xia are no longer in a spousal relationship.[25]

    [25] Court Book 337

  4. The Tribunal then considered the credibility of the evidence, referring to the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[26] at [67], saying:

    In the present case, the Tribunal has some serious concerns about the credibility of not only the visa applicant and the review applicant, but also many of the witnesses and has put these concerns to the review applicant in writing…

    If, as the Tribunal contends, the visa applicant has contrived a divorce in order to circumvent the Migration Regulations, there is a weighty imperative on the visa applicant (and the review applicant and the family) to ensure that no evidence suggesting an ongoing spousal relationship with Mr Xia is put before the Tribunal. In these circumstances, the requirement for the Tribunal to establish a spousal relationship in the way envisaged by his honour is a near impossible task.[27]

    [26] (2000) 168 ALR 407; [2000] HCA 1

    [27] Court Book 338-339

  5. The Tribunal then set out its reasons under the heading “Findings and Reasons in Relation to Spousal Relationship”.

  6. The Tribunal referred to regulation 1.15A and then gave its findings under a number of sub-headings. Under the sub-heading “The nature of the household” the Tribunal made these findings:

    ·The marriage between the visa applicant and Mr Xia is not affected by long separations and the couple have been willing to be separated for extended periods to advance the interests of the family.

    ·Although evidence from family and friends stated that the visa Applicant and Mr Xia separated in October 2003 and divorced in September 2004 because he was abusive to her and the children or that he gambled away their money, or he was having an affair with a woman in China, the evidence that he was abusive have been retracted or claimed to be overstated. The evidence that he gambled way the parties’ money is a mere assertion and there has been no supporting evidence provided.

    ·At the time of the claimed divorce, the visa Applicant, her ex-husband and all four children were residing with the review Applicant and the rest of the extended family.

    ·The visa Applicant, friends and family gave evidence that the ex-husband was an abusive husband and father, but when the Tribunal expressed its concern that the family seemed unperturbed that an evidently unstable and violent man had taken the two girls and had not been seen or heard from since, the family’s evidence changed.

    ·“The divorce became absolute on the basis of custody orders which show that all four children are in the sole custody of the visa applicant, with visitation rights for Mr Xia. For the review applicant to now assert that the reason the family has not made serious efforts to locate the children is because she understands from such circumstances described above, that Mr Xia has “lawful parental custody” or that the children were “neither abducted not kidnapped” is a grotesque parody”.[28]

    ·The Tribunal completely rejected the proposition that the two children had been removed from the home by their father without the visa Applicant’s consent and not been heard from for almost three years.

    ·The Tribunal rejected the review Applicant’s explanation that the family was not complicit in the children’s disappearance.[29]

    [28] Court Book 340

    [29] See Court Book 339-341

  7. The Tribunal went on to make this finding:

    In weighing up the available evidence, the Tribunal places greater weight on the evident determination of the family to remain together in Australia over more than two decades than it does on the utterly implausible propositions put above. The Tribunal finds it much more likely that the visa applicant, Mr Xia, the two girls and the rest of the family are in fact in constant contact and further, that the visa applicant and Mr Xia continue to share in the upbringing of their children with the help of their extended family and in keeping with long established practice in the past.

    On balance, the Tribunal finds that such arrangements are indicative of a genuine and ongoing spousal relationship to the exclusion of all others between the visa applicant and Mr Xia.[30]

    [30] Court Book 341

  8. The Tribunal then considered “The social aspects of the relationship”. The Tribunal referred to the statutory declarations from friends and family testifying that the divorce between the visa Applicant and Mr Xia was genuine. The Tribunal referred to evidence that “has attempted to portray Mr Xia as a violent and unstable man”, some of which evidence was subsequently retracted. The Tribunal stated:

    The fact that friends and family are prepared to change their evidence to support the application confirms the Tribunal’s view that their evidence is unreliable…The Tribunal accepts that friends and family have a personal interest in supporting the visa applicant and hence would be willing to testify to whatever circumstance would assist her in gaining a visa to reunite with her family. The Tribunal therefore places little weight on these statements.[31]

    [31] Court Book 341

  9. Under the heading “The nature of the persons’ commitment to each other”, the Tribunal began by saying:

    The Tribunal puts significant weight on the adverse credibility of the visa applicant. The Tribunal also acknowledges that the visa applicant’s credibility is not necessarily decisive.[32]

    [32] Ibid

  10. The Tribunal expressed itself to be satisfied that the Ms Su and Mr Xia were still in a genuine and ongoing spousal relationship. The Tribunal stated:

    On the basis of the entirety of the evidence before the Tribunal, the Tribunal is satisfied that the parties at the time of application and at the time of the decision did have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore satisfy the requirements of rr.1.15A(1A)(b)(i) and 1.15A(1A)(b)(ii).

    The Tribunal finds that the visa applicant and review applicant lived in different countries that at the time of application and decision, but is nevertheless satisfied that they did not and do not live separately and apart on a permanent basis. Accordingly, they satisfy the requirements of r.1.15A(1A)(b)(iii).[33]

    [33] Court Book 342-343

  11. The paragraph quoted immediately above appears to be a clerical error, referring as it does to the visa Applicant and review Applicant as satisfying the requirements of regulation 1.15A(1A)(b)(iii). The visa Applicant is the review Applicant’s daughter; they are not spouses. Presumably the Tribunal was referring to the visa Applicant and Mr Xia.

  12. The Tribunal then made “Findings and Reasons Last Remaining Relative”. The Tribunal expressed itself to be satisfied that:

    a)Mr Xia’s parents reside in China.

    b)Mr Xia is usually resident in China, as he arrived in Australia on a visa obtained using fraudulent documents and “has been arguably unlawful for longer periods than he has been lawful”.[34]

    c)As the visa Applicant (or her spouse) usually resides in China and the Tribunal has also found that the visa Applicant (or her spouse) have at least two overseas near relatives who also usually reside in China, the Applicant does not satisfy r.1.15(1)(c)(i).

    [34] Court Book 343

  13. The Tribunal found that the visa Applicant did not meet the requirements of the definition of remaining relative in r.1.15 at the time of application and therefore did not satisfy cl.115.211 or 115.221. The Tribunal affirmed the decisions to grant the visa Applicants Other Family (Migrant)(Class BO) visas.

Application for Judicial Review

  1. The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 22nd November 2007. The Applicant filed an amended application in Court on 17th July 2008, without objection.

  2. The Minister filed a Response on 3rd December 2007 claiming that the Applicant had not raised an arguable case.

The Applicant’s submissions

  1. Counsel for the Applicant prepared a lengthy outline of submissions. In respect of the Tribunal decision, he made these points about the section of the Decision Record entitled “Claims and Evidence”.

  2. First, he referred to the Tribunal’s statement:

    The visa applicant applied to migrate to Australia in 1991 as part of an application lodged by the review applicant (her mother) which also included her two brothers and a sister. In 1992 all the family except the applicant were approved for entry to Australia. On 10 June 1993 the applicant married Mr Chuang Ying Xia. On 2 November 1993 the applicant was granted a class 783 visa to travel to Australia; however she did not declare on her application that she was married or pregnant[35](emphasis added).

    [35] Court Book 323

  3. Mr Lloyd pointed out that the Tribunal did not mention that the visa application was lodged prior to her wedding or becoming pregnant and gives a misleading impression.

  4. He then referred to the Tribunal’s statement:

    The applicant’s husband was granted a visitor visa on the basis that he claimed on his application that his wife and child would remain in China.[36]

    [36] Ibid

  5. This assertion, he submits, was not put to the sponsor in the Tribunal’s s.359A letter.

  6. Further, Mr Lloyd points out two statements by the Tribunal that are inaccurate:

    She departed Australia on 30 September 2004 with her son.[37]

    [37] Ibid

  7. The visa Applicant left Australia without any of her children and made this statement with her original application:

    On 30 September 2004 I left Australia alone. Alice, Eda and Michael were scheduled to leave with my father on the 5 November 2004…[38]

    [38] Court Book 70

  8. Further:

    The applicant claims that she has not been able to locate her two daughters because her ex-husband took them illegally.[39]

    [39] Court Book 324

  9. Mr Lloyd submitted that the visa Applicant did not take the children illegally. In that same statement, the visa Applicant said:

    I understand from my father that Alice and Eda went to dinner with their father and did not return. I am very worried about them and have done every thing within my power to locate them. My family have tried to find my former husband and the children but have been unsuccessful.[40]

    [40] Court Book 71

  10. Mr Lloyd submitted that the Tribunal’s statement of reasons[41] either misrepresents the claims that were made or is mistaken with the result that the Tribunal failed to understand the critical claims that were made.

    [41] e.g. at Court Book 340

  11. Mr Lloyd submitted that the Tribunal Member admitted at the hearing to have a practice of not considering evidence that was before the delegate but was nonetheless inclined to draw adverse inferences from an applicant mentioning something for the first time in her first statement to the Tribunal. He submitted that the failure to consider the evidence before the delegate reveals that the Tribunal fundamentally misunderstood its function as a body required to under take a review, and referred to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural Affairs[42].

    [42] (2006) 228 CLR 152

  12. The Tribunal, he submitted is under an implicit obligation under s.360(1)(a) of the Act to consider the material that was before it in deciding whether or not to invite an applicant to a hearing. It had not done so. Thus the Tribunal was unable to identify properly the issues arising in relation to the decision under review.

  13. Mr Lloyd was critical of the Tribunal’s “aggressive response unjustified by the circumstances”, unfair questioning and misstating of prior evidence, an “inaccurate and unfair response” to the visa Applicant resulting from what the Tribunal described as:

    …clearly a bias of mine because I am a parent…[43]

    [43] Transcript P-23 line 29

  14. Mr Lloyd referred to the Tribunal’s statement that it “understood” the position of the entire family and everyone in the room, being a position:

    a)not advanced by any one of them;

    b)in respect of which there was no evidence; and

    c)in respect of which the Tribunal had not so much as tested the evidence of any witness on the issue.

  15. He further submitted that the Tribunal’s statement that it “understood’ the motivations of every witness before any had given oral evidence (in circumstances where none had given written evidence to the effect that the Tribunal understood to be the position) could but leave a well-informed lay observer with grave doubts about whether the Tribunal was able to reach a decision on the actual evidence.

  16. Mr Lloyd then described what he said was another instance of unfair questioning and misstating evidence in the Tribunal’s questions about child abuse. He submitted that the visa Applicant had not made any claims to that effect herself, her father had described the ex-husband as having a violent temper but did not say that he had ever struck anyone, and another witness reported a conversation with the visa Applicant where she said that the visa Applicant had said that the ex-husband had “beaten” the children. The Tribunal referred to allegations about child abuse and accused the visa applicant of overstating and backing away from those allegations.

  17. It is the submission of counsel for the Applicant that the Tribunal’s approach showed not only a lack of familiarity with the actual claims that were made but a line of questioning designed to provide a basis to reject the evidence rather than an open mind capable of being changed. Mr Lloyd referred to the impression of a Tribunal looking for material to justify a conclusion already reached and not with open mind inquiring into the relevant circumstances.    

  18. Mr Lloyd went on to consider the Tribunal’s findings and reasons. The Tribunal considered whether the visa Applicant had a spouse, as required by regulation 1.15(1)(c) and 1.15(1)(d). The Tribunal said that there was a divorce certificate, but said that:

    …a divorce certificate is necessary but not sufficient evidence that the visa applicant and Mr Xia are no longer in a spousal relationship.[44]

    [44] Court Book 337

  19. Mr Lloyd submits that this is an error of law, because it was not legally necessary to the visa Applicant to have a divorce in order not to be in a spousal relationship. It was legally open to her to seek to establish this on the basis that she had been separated from her husband for a long time and no longer had a continuing relationship with him (reg 1.15A(1A)(b)). He submitted that the Tribunal made an error of law that infected its whole approach.

  20. The divorce certificate was evidence that the Federal Magistrates Court had made a decree absolute dissolving the marriage. The only ground is irretrievable breakdown of marriage (Family Law Act 1975, s.48(1)). The Court was satisfied that the ground of irretrievable breakdown of marriage had been established. Mr Lloyd submitted that unless an administrative body can go behind the determination of a Court making a decree, the divorce certificate would be sufficient to establish that the visa Applicant and her former husband were no longer in a spousal relationship. It is not open to an administrative decision-maker to go behind the order by finding or inferring that it was affected by fraud. That, he submits, is also an error of law.

  21. Mr Lloyd referred to the fact that the Tribunal sought to draw an analogy from a passage from the judgment in Tran v Minister for Immigration and Multicultural Affairs.[45] The Tribunal drew from that decision that:

    …in some spouse applications, parties have provided evidence specifically contrived to satisfy the migration regulations. This evidence does not in and of itself necessarily satisfy a decision maker that a spousal relationship exists. Similarly, the absence of evidence does not necessarily satisfy a decision maker that a genuine spousal relationship does not exist.[46]

    [45] [1998] FCA 290

    [46] Court Book 337

  1. However, Mr Lloyd points out that the review Applicant (and, the visa Applicant) was not relying on the absence of evidence, but on actual evidence. That evidence was the divorce certificate, the fact that the visa Applicant had been living thousands of kilometres apart for several years and the evidence of witnesses as to the circumstances that led to the breakdown of the marriage.

  2. Mr Lloyd submitted that the Tribunal fell into error when it said that it had “some serious concerns” about the credibility of many of the Applicants’ witnesses, which it had put to the review Applicant in writing. It did not identify which of the witnesses it had serious concerns about. Further, it is submitted that the Tribunal did not fulfil its obligations under s.360 when it indicated that the evidence of the witnesses was “accepted” and so they did not need to give evidence, and then later rejected their evidence.

  3. Mr Lloyd referred the Court to various findings made by the Tribunal where there was no evidence to support those findings:

    a)That there was “very little evidence of the financial aspects of the relationship”[47] between the visa Applicant and the ex-husband, when there was evidence that the visa Applicant was being supported by her father.

    b)That evidence of abuse by the husband was abusive had been “retracted or claimed to have been overstated”[48] when there was no evidence that any party retracted their claims or suggested that they had been overstated and the visa Applicant expressly stated that the claims had not been overstated.

    c)That “at the time of the claimed divorce, the visa Applicant, her ex-husband and all four children were residing with the review Applicant and the rest of the extended family”[49] when there was no evidence to support this finding.

    d)That the witnesses claimed that the husband was “a violent and unstable man”[50] when no witness ever used that expression.

    [47] Court Book 339

    [48] Ibid

    [49] Court Book 340

    [50] Court Book 341

  4. Mr Lloyd submitted that the Tribunal failed to comply with the requirements of s.359A of the Migration Act when it failed to put to the review Applicant for comment adverse evidence that was part of the reason for affirming the decision, including:

    a)that the visa Applicant’s husband was granted a visitor visa on the  basis that he claimed falsely that his wife and child would remain in China; and

    b)that the visa Applicant did not declare that she was married or pregnant in her visa application in 1993.

  5. He further submitted that the Tribunal failed to address the claims that were made, misunderstood claims that were made, and, in some respects, addressed claims that were not made, which constitutes jurisdictional error (see Htun v Minister for Immigration and Multicultural Affairs[51] and Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs[52]).

    [51] (2001) 194 ALR 244

    [52] (2003) 197 ALR 389

  6. Third, Mr Lloyd submitted that the Tribunal misunderstood and failed to undertake its proper review function under s.348(1) of the Migration Act in failing to appreciate that part of its job is to consider and review the material that was before the delegate. The Tribunal should have read the delegate’s file before the hearing, which is necessary for the Tribunal’s functions under both ss.348 and 360.

  7. Fourth, it was submitted that the Tribunal failed to comply with s.360 of the Migration Act by not giving the review Applicant the opportunity that the section provides. Mr Lloyd submitted that the Tribunal fell into error in that it did not raise all of the matters that were the issues for the Tribunal in its ultimate decision, including:

    a)whether the witnesses were willing to testify to anything in order to assist the visa Applicant, including:

    b)whether the extended family was in constant communication with the missing children.

  8. The Tribunal was under an implied obligation to consider all of the material before the delegate in advance of the hearing so that it could properly determine what the issues were and raise those issues that the review Applicant was entitled to address. Mr Lloyd submitted that the Tribunal did not do so.

  9. Further, he submitted that the Tribunal stated that it accepted certain matters, that led the review Applicant not to pursue the oral evidence that she otherwise wished to present.

  10. As to the Applicant’s fifth ground, the course taken by The Tribunal was such that it would give rise to a reasonable apprehension of bias.

  11. Sixth, the Tribunal misconstrued regulation 1.15A.

  12. Seventh, there was no evidence too support the finding that the visa Applicant’s immediate family, including her ex-husband, were all living together at the time of the divorce.

  13. The Applicant’s counsel submitted that the Tribunal failed to give genuine and proper consideration to the evidence advanced on the Applicants’ behalf.

The Minister’s Submissions

  1. Mr Reilly of counsel, who appeared for the Minister for Immigration and Citizenship, submitted that there is no jurisdictional error in the Tribunal’s decision and the application should be dismissed. He submitted that the delegate and the Tribunal were not persuaded by the visa Applicant’s claims that she was no longer in a spousal relationship with her husband and the Tribunal found that she was still in a continuing relationship with him.

  2. The Tribunal did not believe that the visa Applicant’s husband had taken the two children Alice and Eda without the Applicant’s knowledge on or about 5th November 2004 and that the family had not heard from him or the children since. The Tribunal found it more likely that the visa Applicant and her husband were conspiring to keep the children in Australia unlawfully so that they could eventually obtain Australian citizenship by operation of law under s.12(1)(b) of the Australian Citizenship Act 2007 (Cth), which provides that a person born in Australia is an Australian citizen if and only if that person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.

  3. Mr Reilly submitted that the Tribunal’s findings, rejecting the credit of the visa Applicant and her family, are findings of fact par excellence (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[53] per McHugh J at [67]). The Tribunal’s findings were open to it for the reasons it gives and the Court cannot review the merits of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[54]at 272). There is no error of law if the Tribunal makes a wrong finding of fact (Abebe v Commonwealth[55] at [137]).

    [53] (2000) 168 ALR 407; [2000] HCA 1

    [54] (1996) 185 CLR 259 at 272

    [55] (1999) 197 CLR 510

  4. As to the Applicant’s first ground, a claim of failure to comply with s.359A of the Act, Mr Reilly submitted that the information that the husband was granted a visa on the (false) basis that his wife and child would remain in China could be said to be part of the reason for the Tribunal’s decision, for these reasons:

    a)the husband was not a party to the proceedings;

    b)it was only the visa Applicant whose credit was relevant to the Tribunal’s decision;

    c)the husband did not give evidence and his credibility was not relied upon; and

    d)the fact that the husband made a false statement does not say anything about whether the visa applicant is a remaining relative or go to her credibility and therefore does not fall within s.359A (1) (see SZBYR v Minister for Immigration and Citizenship[56] at [17]).

    [56] (2007) 325 ALR 609

  5. In any event, he submitted, the Tribunal had referred to this fact in its s.359A letter of 7th June 2007.[57]

    [57] Court Book 252

  6. Mr Reilly submitted that visa Applicant’s failure to declare that she was married or pregnant on her 1993 visitor visa application was expressly put in the Tribunal’s s.359A letter[58]. It is irrelevant to the Tribunal’s compliance with s.359A whether the “information” is reliable (Win v Minister for Immigration and Multicultural Affairs[59] at 19, 20). The letter made it clear that the information was that the visa Applicant had deceived the Department and that this might go to her credit.[60] It was open to the visa Applicant to rebut that suggestion.

    [58] Court Book 252

    [59] (2001) 105 FCR 212; [2001] FCA 56

    [60] Court Book 252

  7. Hence, it was submitted that there was no breach of s.359A.

  8. Turning to the Applicant’s second ground, that the Tribunal failed to address or misunderstood the claims made, or addressed claims that were not made, Mr Reilly submitted that:

    a)the Tribunal’s comment that the husband had taken the children Alice and Eda “illegally” is a reasonable description of the visa Applicant’s original claims.

    b)The Tribunal’s characterisation of the visa application subsequent claim of no illegality as a “grotesque parody” of the original claim is not evidence of the failure by the Tribunal to have regard to it.

    c)The Tribunal’s comment that some of the evidence of abuse by the husband was retracted[61] is based on the Tribunal’s reference to the evidence provided in response to the Tribunal’s s.359 letter and is “understandable scepticism” rather than a failure to have regard to a the claim.

    d)It was open to the Tribunal to reason that it was unlikely that the visa Applicant would have three more children in Australia with someone she believed to have had an affair in China and any inaccuracy as regards the first child is no more than a minor factual error;

    e)The claim that the visa Applicant always said that the husband took the children with permission flies in the face of the visa applicant’s original claims.[62]

    f)It was open to the Tribunal to characterise the efforts of the visa Applicant and her family to find the children as not being serious.[63]

    [61] Court Book 340

    [62] Court Book 340

    [63] Ibid

  9. Counsel for the Minister submitted that the Applicant’s claim in Ground 3 that the Tribunal failed to comply with s.348(1) of the Act is based on nothing more than exchange where the Tribunal said “I generally don’t look at department files”[64]. The Tribunal in its decision did have regard to the original application and noted in the decision that the Department’s file was before it[65]. He submitted that the suggestion that the Tribunal had a practice of not considering the evidence that was before the delegate was unwarranted and contradicted by the Tribunal’s decision.

    [64] Transcript P- 22 line 14

    [65] Court Book 323

  10. As to the Applicant’s fourth ground, that the Tribunal failed to comply with s.360 of the Act, it was submitted that:

    (a)Section 360 does not require the Tribunal to give its preliminary conclusions during the hearing (SZBEL v Minister for Immigration and Multicultural Affairs[66] at [48]). The transcript shows that the Tribunal raised the issues that concerned it at the hearing.

    (b)Where it was suggested that the Tribunal failed to comply with s.360 because it had not considered the evidence before the delegate, it is clear that there was a temporary misunderstanding[67]. There is no requirement in s.360 that at the time of the hearing, as opposed to its decision, the Tribunal must have considered all the evidence before the delegate.

    (c)As to the claim that the Tribunal said that certain matters were accepted, the Tribunal did not reject the evidence of the evidence who claimed to have spoken about the children[68] and the Applicant’s representative did not make that suggestion at the hearing. The Tribunal is not bound to take evidence from witnesses (s.363(1); Minister for Immigration and Multicultural and Indigenous Affairs v Katisat[69]). There is no breach of s.360 on the basis that a procedure adopted by the Tribunal was unfair, because common law procedural fairness does not apply (Minister for Immigration and Multicultural and Indigenous affairs v Lay Lat[70] at [66]; SZCIJ v Minister for Immigration and Multicultural Affairs[71] at [7]-[8]; NBKT v Minister for Immigration and Multicultural Affairs[72] at [85]).

    [66] (20060 228 CLR 152

    [67] Transcript P-22 35, 36

    [68] Transcript P-45

    [69] [2005] FCA 1908

    [70] (2006) 151 FCR 214; [2006] FCAFC 61

    [71] [2006] FCAFC 62

    [72] (2006) 156 FCR 419; [2006] FCAFC 195

  11. Thus, Mr Reilly submitted, no breach of s.360 had been made out.

  12. As to the Applicant’s fifth ground, apprehended bias, Mr Reilly submitted that:

    a)It is a serious allegation that must be firmly established (Re JRL; Ex parte CJL[73]);

    b)The Court would need to be satisfied that a fair minded observer might apprehend that the Tribunal was not impartial (Re Refugee Review Tribunal; Ex parte H[74]);

    c)The Tribunal is necessarily required to test an Applicant’s evidence, often vigorously;

    d)The fact that the Tribunal may have formed a preliminary view of the Applicant’s credit during the hearing is no evidence of bias (Minister for Immigration and Multicultural Affairs v Jia Legeng[75]); and

    e)The hypothetical observer is not entitled to make “snap judgments” (Johnson v Johnson[76]).  

    [73] (1986) 161 CLR 342

    [74] (2001) 179 ALR 425

    [75] (2001) 205 CLR 507

    [76] (2000) 201 CLR 488

  13. It was further submitted that the transcript of the hearing must be read as a whole and, when that is done, there is no basis for the submission of apprehended bias. The Member was testing the evidence in an appropriate way given the inquisitorial nature of the Tribunal’s task.

  14. As to the sixth ground, that the Tribunal misconstrued reg 1.15A, Mr Reilly submitted that the Tribunal was simply addressing the fact situation before it, where the visa Applicant was relying on a divorce certificate. Mr Reilly denied that the divorce bound the Tribunal to find that the marriage had broken down on the basis that to do otherwise would be to go behind a court order. He submitted that the Applicant’s proposition denied the Tribunal’s fact-finding role. The Tribunal is not bound by factual findings which may have been in civil court proceedings in the absence of some sort of estoppel (see Commonwealth v Sciacca[77] at 460; Smith v Caltex Petroleum Pty Ltd[78] at [10]-[14]). The Tribunal was bound to arrive at its own findings of fact (Sande v Registrar, Supreme Court of Queensland[79] at 127C-D, 145D).

    [77] (1990) 96 ALR 455

    [78] [2004] FCA 480

    [79] (1996) 64 FCR 123

  15. Turning to the Applicant’s seventh ground, that there was no evidence to support the Tribunal’s finding that the visa Applicant, the husband and all the four children were living with the review Applicant at the time of the divorce, Mr Reilly submitted that the evidence was equivocal as to when the husband ceased residing with the visa Applicant. The Tribunal’s statement is at most a wrong finding of fact. If there was no evidence to support it, that would only result in jurisdictional error if the conclusion for which there was no evidence was a factual conclusion critical to the Tribunal’s decision (eg SFGB v Minister for Immigration and Multicultural Affairs[80] at [19], [27] and [30]). The location of the husband was not such a finding and was not relied upon in the Tribunal’s subsequent reasoning.

    [80] (2003) 77 ALD 402

  16. As to the Applicant’s eighth ground, that the Tribunal did not give “genuine and proper” consideration, Mr Reilly submitted that it was similar to the formulation of “proper, genuine and realistic” consideration that was held not to engage any of the grounds in the then s 476 of the Act (Minister for Immigration v Anthonypillai[81]).

    [81] (2001) 106 FCR 426

  17. An allegation of lack of logic is not a recognised basis to establish jurisdictional error (NACB v Minister for Immigration and Multicultural and Indigenous Affairs[82] at [29]-[30]; NATC v Minister for Immigration and Multicultural and Indigenous Affairs[83] at [25]; VWST v Minister for Immigration and Multicultural and Indigenous Affairs[84] at [18]; VWFP v Minister for Immigration and Multicultural and Indigenous Affairs[85] at [76]-[81]).

    [82] [2003] FCAFC 235

    [83] [2004] FCAFC 52

    [84] [2004] FCAFC 286

    [85] [2006] FCA 231

  18. Thus, it was submitted that the ground “travels perilously close to merits review” and did not establish jurisdictional error.

Conclusions

  1. The Applicant relies on eight grounds of review. The grounds need to be seen in the context of the Tribunal decision. The Tribunal was not persuaded that the visa Applicant was no longer in a spousal relationship with her husband, or former husband. The Tribunal did not believe that the visa Applicant’s children Alice and Eda had been taken away by their father without the visa applicant’s knowledge or consent and she had not heard from them since. As counsel for the Minister submitted, the Tribunal found it much more likely that that the visa Applicant and her husband were conspiring to keep the children in Australia unlawfully so that they could obtain Australian citizenship after ten years.

Ground 1 – Failure to comply with s 359A of the Migration Act

  1. There are two claims that the Tribunal did not give the Applicant the opportunity to comment on adverse evidence that was part of the reason for affirming the decision:

    i)That the visa Applicant’s husband was granted a visitor visa on a false basis, that his wife and child would remain in China, when in fact they were already in Australia; and

    ii)That the visa Applicant did not declare that she was married or pregnant in her visa application.

  2. I am unpersuaded by the Minister’s argument that the husband was not a party to the proceedings and that his evidence was not being relied upon. His conduct was hardly irrelevant; the Tribunal found that the visa Applicant and her family were conspiring to keep the children Alice and Eda in Australia so that they would acquire Australian citizenship, and that the spousal relationship was still on foot.

  3. I am satisfied that the husband’s deception was “information” for the purpose of s.359A. However, the Tribunal did provide this information to the review applicant in its s.359A letter of 7th June 2007:

    Mr Chuang Ying Xia was detained pending deportation after his visa was cancelled because the Department of Immigration discovered that he had applied for his visitor visa in Guangzhou using fraudulent documents.[86]

    [86] Court Book 252

  4. Similarly, the Tribunal put to the review Applicant in that same letter the alleged deception by the visa Applicant about her marriage or her pregnancy:

    The visa applicant deceived the department in relation to her obtaining her first visitor visa to travel to Australia by not disclosing her pregnancy or marriage.[87]

    [87] Court Book 251

  5. Strictly speaking, that statement misrepresents the situation. The Tribunal itself stated that:

    The visa applicant applied to migrate to Australia in 1991 as part of an application lodged by the review applicant (her mother) which also included her two brothers and sister.[88]

    [88] Court Book 323

  6. The visa Applicant was neither married nor pregnant then, as the evidence shows that she was married on 10th June 1993 and her first child Kitty was not born until 3rd March 1994. It is a matter of common knowledge that pregnancy takes approximately 9 months in a human female (Evidence Act 1995, s.144).

  7. The delegate noted that the visa Applicant had been interviewed in Beijing in May 1993 “and when asked if she was married or engaged she responded ‘no’”.[89]

    [89] Court Book 122

  8. Strictly speaking, the visa Applicant was not married in May 1993 and it is unlikely that she was pregnant, although both of those events occurred shortly afterwards. It is not surprising that the delegate looked at this circumstance with some suspicion.

  9. Whilst the statement by the Tribunal in its s.359A letter may not have been correct, it was open to the review Applicant to have made a comment and denied it. The term “information” is not confined to material that is reliable or has a sound factual basis (Win v Minister for Immigration and Multicultural Affairs[90], per Whitlam, Tamberlin and Sackville JJ at [19] and [22]).

    [90] (2001) 105 FCR 212; [2001] FCA 56

  1. The Applicant’s Ground 1 has not been made out.

Ground 2 – failing to address or misunderstanding claims or addressing claims not made

  1. The Applicant claims that the Tribunal misunderstood the visa Applicant’s claims or addressed claims that were not made. It is perhaps more accurate to say that claims were misstated.

  2. First, the Tribunal stated that:

    The applicant claims that she has not been able to locate her two daughters because her ex-husband took them illegally.[91]

    [91] Court Book 324

  3. The visa Applicant claim in her statement was:

    I understand from my father that Alice and Eda went to dinner with their father and did not return.[92]

    [92] Court Book 71

  4. The Tribunal described the legal situation in this way:

    The divorce became absolute on the basis of custody orders which show that all four children are in the sole custody of the visa applicant, with visitation rights for Mr Xia.[93]

    [93] Court Book 340

  5. That is not correct. The evidence is that there were no parenting orders in place. The parties had agreed informally that the children would live with the mother. In the absence of orders to the contrary, the parties to the marriage would each retain parental responsibility for the children. As there were no orders specifying with which parent the children would reside, there was nothing illegal about the father not returning the two girls.

  6. The Tribunal went on to say:

    For the review applicant to now assert that the reason the family has not made serious efforts to locate the children is because she understands from such circumstances described above, that Mr Xia has “lawful parental custody” or that the children were “neither abducted nor kidnapped” is a grotesque parody.[94]

    [94] Ibid

  7. Leaving aside the Tribunal’s intemperate language, the Tribunal has clearly misunderstood the evidence. There was no claim that the father had abducted or kidnapped the children. In the absence of any Court orders to the contrary, the father had as much right to claim that the children should live with him as the mother had. That is not to say that a court exercising jurisdiction under the Family Law Act would not have been critical of his actions in not returning the children after taking them to dinner as arranged and then not informing the other family members; quite the reverse, in fact.

  8. However, the Tribunal’s criticism of the family for not making “very serious attempts to locate the girls including involving the police”[95] shows a fundamental misunderstanding of the evidence and the factual circumstances. On the basis of the claim made by the visa Applicant, as opposed to what the Tribunal appeared to believe was the claim, there would have been no basis for the police to have been involved at all. There was no breach of the criminal law alleged. Unless a court of competent jurisdiction had issued a recovery order under s.67Q of the Family Law Act, the police would have no power to act.

    [95] Court Book 341

  9. Counsel for the Applicant has described the Tribunal as misstating the evidence in relation to the Tribunals’ questions about child abuse. The visa Applicant did not make such a claim. The evidence was that the father had a violent temper and had slapped the children on occasion. There was no evidence that the witnesses considered that the children were in danger from a “violent and unstable man”.[96] Again, this description came from the Tribunal and when the Applicant and other witnesses denied this characterisation the Tribunal was very critical of them for retracting or changing their evidence.

    [96] Ibid

  10. The Tribunal said:

    Evidence presented to the Tribunal has attempted to portray Mr Xia as a violent and unstable man in an attempt, presumably, to persuade the Tribunal that the divorce is genuine. Some of that evidence was subsequently retracted when it was put to the review applicant for comment.[97]

    [97] Ibid

  11. My reading of the evidence is that:

    a)the claim was never made in the first place;

    b)it was only portrayed that way by the Tribunal; and

    c)when the review applicant disagreed, the Tribunal then made the above criticism.

  12. Again, the Tribunal has seriously misunderstood or misrepresented the Applicant’s claims so that it failed to address the claims that were made and attempted to address claims that were not made. I am satisfied that jurisdictional error has been made out.

  13. The Applicant’s Ground 2 has been made out

  14. The extent of the misrepresentation of the Applicant’s claims is so great that it leads to a consideration of an apprehension of bias on the part of the Tribunal.

Ground 3 – misunderstanding and failing to undertake the review function under s.348(1) of the Migration Act

  1. Counsel for the Minister submitted that the claim that the Tribunal failed to comply with s.348(1) of the Act is based on nothing more than an exchange during the hearing and it is clear that the Tribunal in its decision did have regard to the visa Applicant’s original application for a visa.

  2. In the transcript of the hearing, the Tribunal was referred by the Applicant’s migration adviser to the visa applicant’s statement made as part of her application:

    TRIBUNAL:   The Department’s decision?

    MR KAH:No, no, no. In her statement as part of the application.

    TRIBUNAL:   To the Department?

    MR KAH:to the Department.

    TRIBUNAL:I generally don’t look at Department files. I look at what is on the application, on this file. Evidence to me.

    MR KAH:Sure. I just want to rebut the suggestion that this is the first time that this issue has been raised. That’s all.

    TRIBUNAL:It is the first time this issue has been raised in the review application?

    MR KAH:Yes. But there hasn’t been any previous review application.

    TRIBUNAL:Not but in this entire evidence file, this is the first time that the issue of an affair has been raised?

    MR KAH:  Yes, in her statement, that’s right.[98]

    [98] Transcript P-22 14-28

  3. In my view, s.348(1) and s.360 of the Act need to be read together. Under s.348(1), if an application is properly made under s.347 for review of an MRT-reviewable decision, the Tribunal must review the decision.

  4. As Mr Reilly pointed out, the Tribunal noted in its decision that it had before it the Department’s file relating to the visa Applicants.[99] Presumably, the Tribunal had by that stage read that file and was able to comply with its function of reviewing the decision.

    [99] Court Book 323

  5. Strictly speaking, it cannot be said that the Tribunal failed to comply with s.348(1) and so Ground 3 has not been made out.

  6. However, the Tribunal’s admission that the Member had not read the Department’s file before the hearing raises an issue about compliance with s.360 of the Act. Section 360 of the Migration Act provides:

    (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    (2) Subsection (1) does not apply if:

    (a)  the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

    (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c) sub-section 359C(1) or (2) applies to the applicant.

    (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

  7. The Tribunal wrote to the review Applicant on 2nd April 2007, inviting her to attend a hearing, saying:

    The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone[100].

    [100] Court book 149

  8. It is clear that the Tribunal Member had not read the Departmental file at that time and, from the passage quoted, did not make it a practice to do so. That being the case, the Tribunal could not carry out its statutory function under s.360(2)(a) of considering whether it should decide the review in the Applicant’s favour on the basis of the material before it and thereby fell into jurisdictional error.

  9. I am satisfied that the Applicant’s Ground 4 has been made out on that basis.

  10. In my view, the other matters raised by the Applicant in Ground 4 can more conveniently be considered with Ground 5.

Ground 5 – reasonable apprehension of bias

  1. When considering apprehended bias, the Court must be mindful that it is a serious allegation that must be “firmly established” (Re JRL; Ex parte CJL[101]). The test is set out in Re Refugee Review Tribunal; Ex parte H[102]:

    [27]The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question to be decided.[103] That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of a “fair-minded lay observer” when, as is the case with the tribunal, proceedings are held in private.

    [28]Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceeding, the matters in issue and the conduct which is said to give rise to an apprehension of bias.  Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.[104]

    [101] supra

    [102] (2001) 179 ALR 425

    [103] footnotes omitted

    [104] (2001) 179 ALR 425 at [27]-[28]

  2. In this case, of course, hearings of the Migration Review Tribunal are held in public (Migration Act, s.365). However, the principles in the decision still hold good and should be followed by the Court.

  3. There are several passages from the transcript upon which the Applicant relies to show that a fair-minded lay observer properly informed might reasonably apprehend that the Tribunal might not bring an open mind to the resolution of the question.

  4. First, Counsel for the Applicant referred to “an aggressive response unjustified by the circumstances”[105] in this passage:

    TRIBUNAL:where were you living before that? You had been in Australia or living in Australia since 1993. Where had you been living, on the street?

    VISA APPLICANT: Are you asking me from ’93 first?

    TRIBUNAL:Well, yes, if it is going to be that complicated a question. I want to know where you have been living while you were in Australia?[106]

    [105] Applicant’s submissions [51](a)

    [106] Transcript P-9 Lines 29-36

  5. The Tribunal’s manner of questioning the Applicant was certainly impolite and unnecessarily so, but that discourtesy would not be sufficient, of itself, to establish an apprehension of bias.

  6. Counsel for the Applicant then referred to the Tribunal’s “inaccurate and unfair response” when questioning the visa Applicant about the family’s efforts to find the two children who had not been returned by their father:

    TRIBUNAL:So you would rather just not know where they were or of they were alive or if they were safe? You would rather not know anything about your children rather[107] than report it to the police?

    VISA APPLICANT: Not really.

    TRIBUNAL:To refrain from reporting to the police is just to avoid the scenario of immigration coming to catch us, to happen again.

    TRIBUNAL:So instead of reporting it to the police and not having knock at the door, you decided that you are perfectly happy not knowing anything about your children, whether even they are alive?[108]

    [107] sic

    [108] Transcript P-16 lines 10-21

  7. Counsel for the Applicant submits that this arose from what the Tribunal describes as the Tribunal Member’s bias:

    I am sorry, it is clearly a bias of mine because I am a parent but I can’t think of anything that would prevent me from trying to find my children.[109]

    [109] Transcript P-23 lines 29-31

  8. The word “bias” appears to be well-chosen. True it is that the Tribunal, in its inquisitorial role, may well subject an applicant to some robust questioning, but the Tribunal must still retain its objectivity. It must not have a bias. It is immaterial whether the Tribunal Member is a parent or not. In my view, the Tribunal’s apology or attempted explanation came too late to undo the damage that had been done.

  9. I am satisfied that a fair-minded lay observer properly informed as to the nature of the proceedings and the matters in issue might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided.

  10. If doubt remains, in my view the following passage from the transcript would be sufficient to raise most serious concerns in the mind of the fair-minded lay observer about the impartiality of the Tribunal:

    I don’t care about immigration. I understand that your entire family and everybody in this room is trying to make sure that your children stay in Australia for at least 10 years so that they get citizenship by act of law. I understand that.[110]

    [110] Transcript P-16 lines 26-29

  11. This statement was made during the evidence of the visa Applicant, when no other witness had given evidence. In my view, a fair-minded lay observer would reasonably form the view that the Tribunal had prejudged the entire matter and nothing that any witness said was going to change that perception.

  12. Any perception of impartiality by the Tribunal had gone and the Tribunal hearing had serious and irreparably miscarried. 

  13. I am satisfied that the test of apprehension of bias set out in Re Refugee Review Tribunal; Ex parte H has clearly been met and the Tribunal committee jurisdictional error. The apprehension of bias on the part of the Tribunal is such that, irrespective of any other jurisdictional error, the relief sought by the review Applicant must be granted.

  14. I am also of the view that the Tribunal fell into jurisdictional error in making the finding that it did that at the time of the “claimed” divorce, which I am satisfied was a valid divorce made by the Federal Magistrates Court, the visa Applicant, her ex-husband and all four children were residing with the review Applicant and the rest of the extended family.[111] There was no evidence to support this fundamental finding. Again, it raises in the mind of the fair minded lay observer an apprehension of bias on the part of the Tribunal.

    [111] Court Book 340

  15. Ground 7 is made out.

  16. There will be orders in the nature of certiorari and mandamus and the applicant should be entitled to an order for costs.

I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  16 October 2008


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Cases Citing This Decision

1

He v Minister for Immigration [2009] FMCA 1142
Cases Cited

23

Statutory Material Cited

5

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Kioa v West [1985] HCA 81