Hua and Minister for Immigration and Citizenship

[2008] AATA 1173

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1173

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/2567

GENERAL ADMINISTRATIVE DIVISION		)
Re		YONG HUA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal   Mr Julian Block, Deputy President

Date  11 December 2008

Date of written reasons               14 January 2009

Place  Sydney

Decision   For the reasons given orally, the application for my   recusal is granted.

....................[sgd]..........................

Mr Julian Block
  Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – application for recusal of member – apprehended bias test – application granted

REASONS FOR DECISION

11 December 2008 Mr Julian Block, Deputy President           

1.      At the directions hearing in this matter the terms of the decision intended to be made and the Deputy President’s reasons were stated orally. The Respondent has requested the Tribunal to furnish to him a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Although those oral reasons may reflect the inelegance of an ex-tempore decision, they are in fact the reasons for the decision.

3.      The transcript is annexed as the reasons for the Tribunal’s decision.

I certify that the 3 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President

Signed:         ..............[sgd]..................................................................
  Associate

Date of Directions Hearing       11 December 2008
Date of Decision  11 December 2008
Date of Written Reasons          14 January 2009
Counsel for the Applicant         Mr P Reynolds
Solicitor for the Applicant          Mr Li, Parish Patience 
Solicitor for the Respondent     Ms Linacre, Clayton Utz

ADMINISTRATIVE APPEALS TRIBUNAL
DEPUTY PRESIDENT J. BLOCK
No. 2006/2567

HUA
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP and ANOTHER

SYDNEY

9.36 AM, THURSDAY, 11 DECEMBER 2008

THE D.PRESIDENT:   Ms Linacre, you were kind enough on a previous occasion to say that the question of the recusal application on the grounds of apprehended bias was something you would leave to me.  Is that still the position?

MS LINACRE:   That is the position. 

THE D.PRESIDENT:   Thank you.  Very well.  This is what I intend to do.  The applicant has applied for my recusal from this matter on the basis of apprehended bias.  It is important that I make it clear that the applicant’s application does not allege actual bias.  Before dealing with the application proper, I think it desirable for me to refer, albeit briefly, to the quite extraordinarily slow progress which is being made in this matter.

This application was originally listed for hearing on 30 and 31 August 2007 at a time when Chancellor & Rados were representing the applicant.  Those hearings were vacated at the request of the applicant because he was not then available.  At the time when he made it known that he would not be available, he sought an adjournment until the end of October 2007. 

In November 2007 the applicant appointed Parish Patience as his new representatives, in place of Chancellor & Rados, and the matter was listed for hearing on 11 and 12 December 2007.  It did not, in fact, commence on 11 December 2007, because Mr Ray Turner of Parish Patience, who was then fulfilling the advocacy role, was not available on that date.  He was, however, available on 12 December 2007 and on that date the hearing commenced.  On that day evidence was taken from the applicant’s father and in part, but in part only, from the applicant.  The hearing was adjourned at about the end of the morning of that day because of difficulties with the interpreter, and more particularly because neither the representatives of the parties, nor I could understand what she was saying in English.

A directions hearing was then scheduled for 21 February 2008, but that directions hearing was adjourned to allow the parties to obtain the transcript, although it was not clear at the time why they had not done so previously, and to enable them to come to a decision as to what part of the evidence taken in December 2007 could be accepted.  I note in this context that the matter be listed for 4, 5 and 6 March 2008, but those hearing dates were vacated because, so I understand, the respondent’s solicitor was unavailable on those dates, and in any event there was no conclusion, at that time, as to what part of the evidence taken on 12 December 2007 could be accepted.

A telephone directions hearing on 17 March 2008 was also vacated by consent but relisted for hearing on 3 April 2008.  On that latter date the parties agreed that the evidence of the applicant’s father could be accepted, but that the evidence of the applicant would commence anew.  It was noted also that proper witness statements in respect of the applicant and the visa applicant had not been furnished and the applicant was directed to ensure that proper witness statements be furnished.  When the matter first commenced the witness statements by the applicant and visa applicant consisted of a few lines only.

The application was then heard on 21, 22 and 23 April 2008.  Mr Turner had left the employ of Parish Patience and Mr Robert Balzola of Parish Patience took on the advocacy role in place of Mr Turner.  I note in this context that Mr Li, who is present today, was present in company with Mr Turner and he was also present in company with Mr Balzola, and so that he has been in this matter from the time when Parish Patience was first instructed.  During that period of three days evidence was taken from the applicant and in part, but in part only, from the visa applicant.  It may be noted that proper statements in respect of the applicant and the visa applicant had still not been provided.  Mr Balzola thought it sufficient to furnish what were described as outlines. 

The matter was then listed for hearing on 23 and 24 June 2008.  Mr Balzola had left the employ of Parish Patience but he nevertheless, and at that time, wrote to the tribunal to the effect that he would be continuing as the representative of the applicant and that, in other words, the mandate of Parish Patience would be discharged.  That note by Mr Balzola resulted in certain correspondence, with which I need not deal; suffice it to say that in fact the mandate of Parish Patience had not been terminated.  On 23 June 2008 Mr Reynolds of counsel appeared for the applicant, instructed by Mr Li of Parish Patience.  As I have previously noted, Mr Li has been involved in this matter from the time when Parish Patience were first instructed. 

Mr Reynolds then submitted an application for my recusal on the grounds of apprehended bias and in support of that application referred to extracts from the transcript.  I propose to refer to one example only, and being the statement made by me at the commencement of the hearing and set out at pages 30 and 40 of the transcript.  I had, of course, read the documentation which had been provided and including the respondent’s statement of facts and contentions.  It was clear to me that the visa applicant had committed a number of serious breaches of Australian Migration Law; in particular she entered Australia using a false passport and visa, and in her false identity and after arriving in Australia, obtained a number of facilities.

She also, after coming to Australia, applied for refugee status.  It is relevant, in this context, to note that at a very early state of these proceedings (and see page 6 of the transcript for the first day) the applicant conceded that the visa applicant did not pass the character test.  It was thus plain to me that this case would turn squarely on the situation of the child of the marriage and whose interests would, of course, be primary and in particular the question of whether those interests would outweigh the visa applicant’s migration misconduct.  I, therefore, commenced with a statement that in this case truthful evidence would be of particular importance; however, I then went on to say that I had no reason to think that the evidence would not be truthful. 

The statements by me were arguably undesirable and moreover, and as events revealed, altogether futile.  The visa applicant, when eventually she came to give evidence, was asked how she came to be in possession of a false passport and visa for Australia.  Her answer was that a man in Hong Kong gave them to her and the fact that Australia was the relevant country of destination was purely a matter of chance and that any other destination country would have been just as acceptable. 

The evidence of the applicant is arguably not as crucial as that of the visa applicant.  Nevertheless, his evidence was presented over a very long and indeed unnecessarily long period of time.  Certain financial questions were eventually, but only after a very long period, resolved by his admission that he had derived untaxed income by letting rooms in his home to persons from China illegally in Australia at rentals of $80 per week each. 

Another important, and perhaps vital aspect, emerged during the course of the hearing. That aspect relates to China’s “one child” policy and the extent to which it might prejudice the future of the child of the parties were he to remain in China (the visa applicant having had another child by a prior marriage).  I do not think it necessary to deal in detail with the “one child” policy aspect.  I do note though that some of the statements by me, as to which complaint is made, resulted in very large additional quantities of evidence, much, if not all, of which might have been made available from the outset.

A large volume of additional evidence was filed by the applicant in June 2008; as I have noted, that evidence was furnished in large part in response to comments made by me at the hearings. 

At the hearing in June 2008 the applicant also sought leave to tender yet further evidence and was given a generous period of time within which to do so.  The applicant did not, in fact, file any further evidence within that time, but has furnished an explanation, which is acceptable, as to why he did not do so.  At a directions hearing on 18 September 2008 the applicant was given another generous period of time within which to serve and file additional evidence and that additional evidence was eventually filed early in November 2008.

In respect of apprehended bias the test, according to the cases, is whether an independent third party might reasonably apprehend bias.  The word “might” is important; the test is not whether the third party would apprehend bias, but rather whether he might.  It might be said that the bar, in these circumstances, is not all that high.

I have come to the conclusion that some of the statements made by me, in respect of which complaint is made, might perhaps give rise to such an apprehension.  I emphasise that I was not, and am not biased, and indeed and as I have said there is no suggestion by the applicant that I am.  I do not think that the notional third party, to whom I have referred, would necessarily form such an apprehension.  It is ironic that statements made by me, which in fact have proved of assistance to the applicant in the sense that they have given rise to additional and presumably necessary evidence, should have resulted in this application.  That said I am constrained to consider that there is a possibility that there might be such an apprehension.

It will be apparent, having regard to what I have said, that very little progress has been made in this matter.  After all this time, amounting in all to nearly 18 months, and after no less than four hearing days, we have taken evidence from two witnesses and have not, as yet, reached the cross‑examination stage in respect of the third witness.  Her evidence will clearly be of substantial importance in this matter.  As to why progress has been so slow is not totally clear to me, although changes in the advocacy representation have presumably contributed, to some extent, to the delays which have occurred.  I think it fair to note that Mr Balzola, in particular, took a quite extraordinarily lengthy period of time over the evidence of the applicant, which could and should have been dealt with much more expeditiously.  I hasten to say that I do not think that any blame attaches to Mr Li, who is here in the tribunal today.  He was present throughout as the instructing solicitor and the fact that at times the advocacy role was less than perfectly performed is not attributable to him.

I do not, for one moment, believe that I cannot deal with this matter fairly.  At the same time I think that it is best, and in the interests of procedural fairness for me to grant the applicant’s recusal application on the grounds of apprehended bias, and so as to allow this matter to proceed (hopefully rather more expeditiously) without this particular shadow hanging over it.  Were I to refuse this apprehended bias application, and I repeat that I do not for one moment accept that there is bias and I even doubt whether there is apprehended bias, the further resolution of this matter would undoubtedly be complicated by the fact that there would be this shadow over the matter and which would undoubtedly be referred to in any further proceedings which might eventuate. 

I, therefore, grant the application for my recusal.  I do not issue any directions as to the evidence which has already been taken on the basis that this is an aspect which will be dealt with by whoever presides at this hearing.  Put in other words, I express no view as to whether that evidence should be evidence in any further hearing and leave it to the parties in consultation with the new presiding member to resolve this issue.  This does not mean, of course, that it will not be possible to cross‑examine witnesses in respect of evidence at the new hearing which differs from evidence given before me.

In conclusion, therefore, and as I have indicated, the application for my recusal is granted.