Kaur v Minister for Immigration

[2015] FCCA 3037

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3037

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Temporary) (Class UK) visa – procedural fairness – whether the Tribunal failed to put adverse information to the applicant – whether the Tribunal’s reasons lacked an evident and intelligible justification – bias – whether the dismissal of evidence gave rise to an apprehension of bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A, 476

Migration Regulations 1994, cl.820.211, conditions 3001, 3003 and 3004

Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

First Applicant: SARBJIT KAUR

Second Applicant: AKASHDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2265 of 2015

Judgment of: Judge Street

Hearing date: 12 November 2015

Date of Last Submission: 12 November 2015

Delivered at: Sydney

Delivered on: 2 December 2015

REPRESENTATION

Solicitors for the Applicant: Mr R Turner
Turner Coulson Immigration Lawyers

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The first applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2265 of 2015

SARBJIT KAUR

First Applicant

AKASHDEEP SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 24 July 2015, affirming a decision of the delegate not to grant the applicants partner temporary (class UK) visas. In the decision of the delegate made on 10 February 2015, the delegate found that the criteria for the grant of the Partner Temporary (class UK) subclass A20 and Partner Residence (class BS) subclass 801 visa were not met.

2. The delegate identified that having considered cl.820.211, the primary applicant’s circumstances did not fall within the provisions. The delegate identified that under subcl.2 of cl.820.211 it was required that at the time of the application the applicant was the spouse or de facto partner of the sponsoring spouse, and identified the requirements under s.5F of the Act that had to be satisfied. The delegate referred to the nature of the household and materially, that on 24 December 2014 the sponsor contacted the Department to identify that the relationship had broken down and a desire to withdraw the sponsorship. The delegate further identified that on 14 January 2015 a withdrawal of sponsorship was received by email from the sponsor advising that the applicant and sponsor never lived together since the time of marriage and referring to a telephone call on 15 January 2015 with the sponsor confirming that the sponsorship had been withdrawn and clarifying the claim that the parties had never lived together.

3. In response to the inquiry about whether the parties had ever lived together, the delegate was informed by the sponsor that the parties had always maintained separate addresses.  It was further asserted that the applicant had given a reason for not moving in with the sponsor, and that the sponsor did not feel it was right that the married couple did not live together, and that he stated that the applicant was not genuine in the relationship with the sponsor, and that the sponsorship was done for visa purposes.

4. The delegate identified that steps were taken to contact the applicant’s migration agent to identify the withdrawal of the sponsorship.  On 20 January 2015 the applicant informed the delegate that the reason the sponsor was withdrawing his sponsorship was because he had been violent to the applicant and that the applicant had taken out an intervention order.  The delegate provided the applicant with information about the family violence provisions, and provided an opportunity until 22 January 2015 to provide further information that the applicant lived with the sponsor “and any comment about your sponsor’s allegations”.

5. On 22 January 2015, the delegate recalls receiving a call from the sponsor saying that he wished to reinstate the sponsorship application.  The delegate explored the reason for the change of the decision and was told that the parties had come to an agreement about the relationship.  The delegate records that the sponsor confirmed that he had not previously lived with the applicant but that the applicant agreed that it would be different now and that they would live together as a married couple.  An inquiry was made by the delegate about the intervention order and the sponsor indicated he was not sure what happened to that.

6. An email was then sent on 22 January 2015 by the sponsor suggesting that there was an argument on 23 December 2014 as a result of which the applicant had gone to the police station to get an intervention order, and it was in those circumstances that the sponsor contacted the first respondent.  The email asserted that the parties now loved each other and that the withdrawal of the sponsorship was because the sponsor was angry and that he made other fake statements to the Department.  The delegate, relevantly, said:

   I also note that your sponsor’s first allegation provided to me on 15/01/2015 acknowledged that you had an argument in December, but that it was about why you could not live together and that your relationship at that time was broken down because you stated you couldn’t live together until you got your “papers’.

   I consider that it is likely that after you were advised that an intervention order may not have bene sufficient to enable your partner visa to be granted you then initiated contact with your sponsor and advised him that you should reconcile the relationship and that you and your sponsor then reached an “agreement” that you would live together. 

   I also note that your sponsor’s original conversation with me regarding the withdrawal of his sponsorship indicated that he had no concern with the outcome of the application process, only that he did not want to be part of it. Therefore I find that your sponsor did not have reason to make false claims about your prior co-habitation as his sponsorship could be withdrawn regardless.

7. In relation to the topic of the nature of the person’s commitment to each other, relevantly, the delegate found:

   Whilst you claim you began living together since May 2013, there is limited evidence of this until the end of 2013 and around the time you began preparing to lodge a partner visa application in April 2014. In light of your relationship breakdown and both you and your sponsor's discussions with me after your sponsor  withdrew his sponsorship and again after it was re-instated, and that fact you both came to an “agreement” to reconcile after I had advised you of your sponsors sponsorship withdrawal and its possible ramifications for your application, I consider that your relationship is not a committed one, but rather one designed to obtain a migration pathway for you and your son to remain in Australia. ·

   While I am satisfied that you and your sponsor are married, there is no evidence that you see the relationship as a long-term one, that you draw emotional support and companionship from your sponsor or that you have a commitment to a shared life with your sponsor.

   I consider that your relationship has been contrived by you for the purposes of obtaining a positive migration outcome. Accordingly, I find that you are not the spouse of the sponsor, as defined under section 5F of the Migration Act.

   As you do not meet the definition of spouse under section SF of the Migration Act I am therefore not satisfied that you meet subclause 820.211(2)(a) of the Migration Regulations.

8. It was in those circumstances that the delegate turned to consider whether there were compelling reasons for not applying the criteria under subcl.820.211(2)(ii) in relation to the conditions 3001, 3003 and 3004.  The delegate found the relationship not to be genuine, and found the relationship to be contrived and did not accept that there were compelling reasons for waiver of the Schedule 3 requirements.

9. The applicant lodged an application for review on 27 February 2015 and, at the time of lodging that application, completed a mandatory document upload field that attached the decision of the delegate.  It is clear from the form that there is a mandatory field to be completed, and I accept as matter of fact not in dispute between the parties that unless that field is completed the application for review cannot be lodged.  The electronic lodgement of applications for review is of recent origin, and it is clear that what was intended was the mandatory field would correctly attach the delegate’s decision albeit that the application for review will be successfully lodged even if some other document and not the delegate’s decision is uploaded.

10. The grounds of the application are as follows:

    1. The Tribunal failed to comply with its statutory duty.

    Particulars

    a. The Tribunal failed to comply with the Migration Act 1958 s.359 in that it had information, a statement from the Applicant's sponsor, which was the reason or part of the reason for affirming the decision and failed to give particulars of that information to the Applicant, explain why it was relevant and give her an opportunity to respond.

    …

    3. The Tribunal failed to accord the Applicant Procedural Fairness.

    Particulars

    a. The Tribunal's decision was based on speculation and guesswork and failed to base its decision on reasonably probative evidence.

    4. The Tribunal's decision is irrational and illogical.

    5. The Tribunal's decision is affected by Apprehended Bias.

    Particulars

    a. The Tribunal improperly dismissed the Applicant's evidence.

    b. The Tribunal dismissed medical and psychological evidence on its lay view of what the circumstances were.

    c. The Tribunal dismissed the Second Applicants evidence because “he was in the hearing room while his mother gave evidence, and his evidence mirrored that given by his mother” in circumstances where, having been told that he would give evidence, he was not asked to leave the room while his mother gave her evidence.

11. I note Mr Turner, the solicitor for the applicant, abandoned ground 2. The applicants appeared before the Tribunal on 15 July 2015 to give evidence and present arguments, and the Tribunal also received evidence from the first applicant’s brother, and the applicants were represented by their registered migration agent. The Tribunal identified that the applicants had to meet the criteria in Schedule 3 unless the Minister was satisfied there were compelling reasons for not applying the criteria under cl.820.211(d).

12. It was common ground that the applicants did not have a substantive visa at the time of the application and therefore the real issue in the present case was whether there were compelling reasons for not applying the criteria in Schedule 3.  In dealing with the issue of compelling reasons, the Tribunal set out the applicant’s background and also the reasons for the applicant’s not holding a substantive visa, and turned to an issue under a heading, “Sponsor dependent upon the applicant”.

13. In this regard, in support of the visa application, the first applicant claimed that the sponsor had medical problems and is dependent upon the first applicant for his regular day-to-day care.  The first applicant said that she supported the sponsor morally, emotionally and at all levels, and that the sponsor would lose his job which would impose financial hardship if he had to return to India with the applicants.  The Tribunal noted that there were significant credibility issues that were detailed below arising out of inconsistent information and lack of probative evidence supporting claims made by the first applicant.  It was in the context of identifying those credibility issues that the Tribunal relevant said:

    28. The Tribunal notes that the record of the delegate’s decision states that, when he withdrew his sponsorship in January 2014, Mr Sanchez told the Department that he had not lived with Ms Kaur since their marriage. Ms Kaur submits that this is untrue, and Mr Sanchez’s credibility must be questioned on the basis of his long criminal record, which she submitted to the Tribunal. However the Tribunal finds that Ms Kaur’s credibility is also questionable given that she signed a false statement to the Department regarding their reconciliation in January 2015. The Tribunal also finds it concerning that Ms Kaur chose to have contact with Mr Sanchez after an Interim Intervention Order was issued which prohibited contact between the parties.

    29. The Tribunal is mindful that it is required to consider the circumstances of the parties at the time of application, and that the parties’ separation and Mr Sanchez’s sponsorship withdrawal occurred after the visa application was lodged. However, the Tribunal finds that Mr Sanchez’s claim that he had not lived with Ms Kaur since his marriage goes directly to the issue of whether he relied upon her emotionally and practically at the time of application. The Tribunal has had regard to the judgements of Bretag v MILGEA1 and Jayasinghe v MIMA2 in regard to its consideration of evidence subsequent to the visa application. In ‘Bretag’ the court held that, in determining the nature of a relationship at a particular time, evidence of subsequent events may be taken into account if it tends to logically show the existence or non-existence of the relationship at that particular time. However the Tribunal must be careful not to attribute too much weight to the evidence of subsequent events.

    …

    33. The Tribunal has considered a range of written material submitted in support of Ms Kaur’s claim that she was in a genuine spousal relationship with Mr Sanchez at time of application. This evidence includes supporting statements from friends, documentary evidence of cohabitation and photographs of the parties in social settings. The Tribunal has also had regard to reports from Dr John Green, which refer to the parties’ medical conditions and states that Ms Kaur often has to stay at home to care for Mr Sanchez when he gets migraines. However the Tribunal finds that the weight of this evidence in the Tribunal’s deliberations is unfortunately compromised by evidence about significant aspects of Ms Kaur’s claims which the Tribunal has found not credible and which has given rise to serious doubt that they she and Mr Sanchez were ever in a spousal relationship. Accordingly, the Tribunal does not accept that she was Mr Sanchez’s primary carer, or that Mr Sanchez relied upon her for his emotional and physical wellbeing. For these reasons, the Tribunal is not satisfied that Mr Sanchez’s emotional and physical dependence at time of application is a compelling reason to not apply the criteria.

14. The solicitor for the applicant contended that the email provided to the Department on 14 January 2015 referring to the fact that the applicants had never lived together at the same address as husband and wife since they were married on 21 January 2014 was information falling within s.359A of the Act. The solicitor for the applicant also submitted that the oral information referred to in the delegate’s decision of the telephone call on 15 January 2015 to the delegate by the sponsor confirming that they had not lived together was information falling within s.359A of the Act.

15. Whilst the particulars to ground 1 refer to a statement from the applicant’s sponsor, it is clear that the critical information which the applicant alleges enlivens the obligation under s.359A(1) was that the sponsor and the applicant had not lived together since their marriage. That information was provided both by email and by telephone to the delegate. The applicant’s solicitor submitted that the information provided by the sponsor that the applicant and sponsor had not lived together since their marriage was information that constituted a rejection, denial or undermining of the applicant’s claims within SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17]. Section 359A(1)(a) refers to:

    …any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review.

16. I do not accept that the communication from the sponsor that the applicant and the sponsor had not lived together since their marriage was information falling within s.359A(1)(a). The information from the sponsor to the effect that the applicant and sponsor had never lived together since their marriage was information relevant to the assessment of the credibility of the applicant and the sponsor in relation to their subsequent assertions as to the genuineness of the their relationship. I find that the information provided by the sponsor to the Department, both in the email and by the telephone call, that the applicant and sponsor had not lived together since their marriage was not information that the Tribunal should have considered would be the reason or a part of the reason for affirming the decision that is under review.

17. The applicant tendered the transcript which relevantly included the following: 

    Ms Catherine Wall: Now Ms Kaur I would like you to tell me your understanding of why the Department refused you this visa, refused you and your son?

    Ms S. Kaur: ... San Francisco ... he withdrew my sponsorship at the time the visa was refused . It was an intervention order ....

18. The incident was explored as follows:

    Ms Catherine Wall: Right. And when did you meet the sponsor of this visa, your third husband?

    Ms S Kaur: March 2012.

    Ms Catherine Wall: And when did you start living with him?

    Ms S Kaur” ... 2013.

    Ms Catherine Wall: Did you know him?

    Ms S Kaur: Yes.

    Ms Catherine Wall: What was the date of the marriage?

    Ms S Kaur: 21 January 2014.

    Ms Catherine Wall: 21 January?

    Ms S Kaur: 2014.

    Ms Catherine Wall: 21 January 2014. Now are you still with your third husband?

    Ms S Kaur: After we married ... sponsor me, he also started arguing and fighting with me.

    He was asking for money from me. He promised me that he would pay my son's fees. And he will help me.

    Ms Catherine Wall: So when did you separate?

    Ms S Kaur: Last time we ... 2014. In the ... one last time he had a big fight with me on public transport when I was coming back from my work. He was asking me for money. I gave him money many times but I did have a responsibility to look after my son also.

    Ms Catherine Wall: So did you say you separated after that incident in December?

    Ms S Kaur: In the public transport where this incident happened people advised me that I do have rights why don't you go to the Police and complain about this.

    Ms Catherine Wall: And what happened then?

    Ms S Kaur: Then he had argument, a fight with me and he snatched my wallet out ...

    Only ... phone hidden in my pocket and only that one left with me.

    Ms Catherine Wall: So when you went to the police station what did the police do?

    Ms S Kaur: A passenger advised me not to get off at the same stop where he got off and because he was hitting me also, so I got off at the next stop. I rang my brother from there. My brother advised me to go to the police station to lodge a complaint. My brother rang ... also. He said I am not scared of the police. If you go there I will also come there.

    Ms Catherine Wall: So you have given me a copy of an interim intervention order dated 24 December 2014.

    Ms S Kaur: Yes, December 2014.

    Ms Catherine Wall: And your husband was ordered to stay away from you.

    Ms S Kaur: And there was conditions on the form ... that he cannot ... conditions he can't come close to me.

    Ms Catherine Wall: So did you have contact with him after that date?

    Ms S Kaur: Before, when this incident happened, before that many times he was threatening me that if you complain about the money I am asking from you or my behaviour towards you I will get your visa cancelled. And I will send you back to ... the country. That is why I didn't inform anyone before that, my brother or anyone else.

    Ms Catherine Wall: But after the intervention order did you have further contact with him?

    Ms S Kaur: He rang me. He had a holiday and then he came to me, at my house. He said ... intervention order and I'll withdraw my complaint and we will start living together. He had also ... a paper and asked me to sign :"He said that I will send this letter to Immigration and your visa will not be cancelled. Everything what I did, I was angry at the time, and I want to withdraw and I apologise for that.

    Ms Catherine Wall: So did you start living together again?

    Ms S Kaur: My brother advised me that because only ... ... he knew because he is intervention order consequences. The way he had acted to me he could be sent to jail also.

    Ms Catherine Wall: So I just want to make sure that I am clear. After the interim intervention order in December you did not live together again?

    Ms S Kaur: No.

    Ms Catherine Wall: And yet you signed a statement to the Department which said you had reunited, all was forgiven and you were living together.

    Ms S Kaur: He ......... also. Then I talked to my brother and he said, he advised me not to change the intervention order.

    Ms Catherine Wall: But you had signed a statement to the Department which is untrue.

    Ms S Kaur: ... came to me and he said that he whatever he did it was in anger. He said ...sign it, we will live together ..... at the time my brother didn't know ...... He said my brother said that the only reason he is going - that he will sign this letter because he is scared of the intervention order and he wants me to withdraw it. I did sign it. I wanted to save my married life but he is not that type of person.

    Ms Catherine Wall: But it appears to me you know it is quite serious you - firstly you did not report to the Department that your relationship had ended and secondly, you have signed a statement saying you have reunited when you haven't. You are giving false information to the Department on very serious issues.

    (emphasis added)

1. Further, I accept the first respondent’s submission that in any event the information falls within the exception under s.359A(4)(b), given that the information was clearly in the decision of the delegate and that the decision of the delegate was attached to the application for review in the present case. In these circumstances the information, can be said to have been given by the applicant for the purpose of the application for review within s.(4)(b). The solicitor for the applicant sought to argue that the lodging of the delegate’s decision under the mandatory field was simply to initiate the application for review and as such a jurisdictional step. The applicant’s solicitor submitted could not be described as giving of information for the purpose of the application for review.

2. In my opinion, the clear intention underlying s.359A(4)(b) is to ensure that the Tribunal does not have to put to the applicant clear particulars under s.359A(1), information provided by the applicant for the purpose of the application for review. I can see no warrant for a narrow construction of the words “for the purpose of the application for review” so as to exclude the document attached to the application for review, being the delegate’s decision in the present case.

3. It was further submitted by the first respondent that this approach to s.359A(4)(a) was supported by the reasoning in the Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 at [74] and that this Court were bound by that decision. The solicitor for the applicant identified that that decision was made prior to the electronic filing process that now exists. I do not regard that as a ground for distinguishing the decision in the present case. Accordingly, no jurisdictional error is made out by ground 1.

4. The solicitor for the applicant referred to the finding of the Tribunal in para.40:

   40. On the evidence, the Tribunal has significant doubts that Ms Kaur or her family have been threatened by Nirmal Singh, or that Ms Kaur faces harm from him if she returns to India. Even if the Tribunal was willing to accept that Nirmal Singh was violent towards Ms Kaur during their marriage, it finds that their relationship ended over 10 years ago, and Ms Kaur states that she has not seen Nirmal Singh for over 6 years. It is to be expected that Nirmal Singh’s circumstances have changed considerably over that time. Further, the Tribunal considers that it is open to Ms Kaur to live elsewhere in India if she does not wish to reside in Wring Suba Singh where she may encounter Nirmal Singh. Ms Kaur’s evidence is that she is a trained nurse and that she will be able to obtain employment in India. She also told the Tribunal that she has 2 solicitors living in her home town and one solicitor living several hours away in a different region. On this basis the Tribunal noted that it is open to Ms Kaur to relocate and have family support. Ms Kaur said that none of her solicitors in India are willing to assist her as they have been threatened by Nirmal Singh. While Gurpreet Singh also told the Tribunal that his solicitors in India will not support Ms Kaur, the Tribunal gives his evidence little weight as he could not recall how many of his solicitors currently live in India or where in India they live. In a post-hearing submission Mr Singh said that he has had no contact with his solicitors since Ms Kaur moved in Australia in 2009. On this basis the Tribunal does not accept that Mr Singh is in a position to know if his solicitors are willing to support Ms Kaur in India.

   …

   45. The Tribunal acknowledges that Ms Kaur’s parents no longer live in India, however her evidence is that she lived in India for 33 years, during which time she completed nurse training and was employed. She has 3 solicitors residing in India. For the reasons given previously, the Tribunal is not persuaded by Ms Kaur’s evidence that her solicitors in India will not support her if she returns. On the basis of the available evidence, the Tribunal is satisfied that if she returns to India Ms Kaur will be able to access established social networks and family support.

5. It was suggested that the finding “On this basis, the Tribunal noted that it is open to Ms Kaur to relocate and have family support” lacked a rational and logical basis.  I reject that submission.  I reject the submission that the last sentence of para.45 lacked a logical and intelligible basis.  The family in Indonesia provides an evidentiary basis for the findings the inference drawn was open on the material.  I reject the submission that the Tribunal engaged in guesswork; see Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 [83]-[88]. In my opinion, the adverse findings in paras.40 and 45 cannot be said to be lacking an evident and intelligible justification and were open on the material before the Tribunal. I find that no jurisdictional error is made out by ground 3.

6. In relation to ground 4, it was suggested that the finding in para.28 was illogical and irrational as the applicant was not prevented by the interim intervention order from contact with the sponsor but, rather, the other way around :

   28. …However the Tribunal finds that Ms Kaur’s credibility is also questionable given that she signed a false statement to the Department regarding their reconciliation in January 2015. The Tribunal also finds it concerning that Ms Kaur chose to have contact with Mr Sanchez after an Interim Intervention Order was issued which prohibited contact between the parties.

7. The Tribunal’s decision has to be read as a whole without keen eye for error.  I do not accept that there is any irrationality or illogicality in the findings made by the Tribunal including the concern expressed about contact between the parties.  Those findings cannot be said to lack an evident and intelligible justification.

8. In relation to ground 5 the applicant’s solicitor referred to the reference by the Tribunal to an expert’s report in relation to the applicant suffering from an adjustment disorder, relevantly:

   31. …

    The Tribunal noted that Mr Kleynhans recommended that the parties have ongoing counselling, and asked Ms Kaur if they had acted on this recommendation. She said that they did not because it was very hard to get an appointment with Mr Kleynhans, but that they saw Dr Green (their GP); …

   32. The Tribunal gives Mr Kleynhans’ report limited weight on the basis that Ms Kaur consulted Mr Kleynhans specifically for the purpose of securing evidence of psychological hardship, she did not seek ongoing counselling as recommended, and a number of Mr Kleynhans’ statements are inconsistent with Ms Kaur’s oral evidence.

9. It was submitted that the concerns expressed by the Tribunal as to the failure to seek ongoing counselling were an impermissible descent into the medical expert arena by the Tribunal.  I reject that submission.  In my opinion, the finding referred to in para.32 was open on the material before the Tribunal.  It cannot be said to lack an evident and intelligible justification.  In my opinion, the proposition that the Tribunal’s reasoning was irrational and illogical is of no substance.  To the extent that the Tribunal referred to the purpose of the report was to secure evidence that does not give rise to any error.  Nor is the reference to purpose conduct that gives rise to any issue of apprehended bias.  I find that ground 4 is not made out. 

10. It was a matter for the Tribunal to determine whether or not to accept the applicant’s evidence and the rejection of the applicant’s credit in circumstances where the applicant had provided an acknowledgement of having given the Department a statement that was untrue.  The adverse findings as to the applicant’s credibility were open on the material before the Tribunal and the adverse findings are not a basis upon which apprehended bias could be made out.

11. The solicitor for the applicant criticised the reference to the medical evidence and the concerns expressed by the Tribunal in paras.30 to 32.  As indicated above, I reject the submission that the Tribunal engaged in an impermissible analysis of the applicant’s medical condition, and it was open to the Tribunal to express the concerns identified in para.31.  It was a matter for the Tribunal to determine what weight to give to the medical evidence, and in doing so, the Tribunal’s findings do not make out any ground of apprehended bias.

12. The applicant’s solicitor referred to the circumstances in which the hearing commenced where the first applicant’s mother was asked to leave the room.  There was an exchange in relation to whether or not the second applicant (being the first applicant’s son) should leave the room.  The Tribunal relevantly found as follows:

    43. Akashdeep told the Tribunal that he does not wish to return to India because his father will take him away. The Tribunal gives his evidence little weight on the basis that he was in the hearing room while his mother gave evidence, and his evidence mirrored that given by his mother.

13. In my opinion, the Tribunal was entitled to take into account the circumstances in which the second applicant gave evidence.  It was open to the Tribunal to find there was a mirroring by the second applicant of the evidence given by his mother.  The finding is para.43 is not a basis upon which apprehended bias can be made out.  I find that the adverse findings in relation to the applicant’s credit, as well as the limited weight given to the medical and psychological evidence, and the adverse finding in relation to the second applicant are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and independent mind to the determination of the matter on its merits.  Ground 5 fails to make out any jurisdictional error.   

14. The application is dismissed. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  2 December 2015