Le v Minister for Immigration
[2008] FMCA 1209
•28 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LE v MINISTER FOR IMMIGRATION | [2008] FMCA 1209 |
| MIGRATION – Visa – Prospective Marriage (temporary) visa – cancellation of visa – whether the decision was affected by apprehended bias – whether the respondent failed to comply with Migration Act 1958 (Cth) s.129 – jurisdictional error – certiorari and mandamus. |
| Migration Act 1958 (Cth) ss.5, 128, 129, 131 |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 referred to. Aronson, Dyer & Groves, Judicial Review of Administrative Action Third Edition, Lawbook Co, Sydney 2004 |
| Applicant: | LE |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 3558 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 June 2008 |
| Date of Last Submission: | 26 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Counsel for the Respondent: | Mr Cleary |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That there be an order in the nature of certiorari quashing the decision of the respondent made on 31 October 2007 not to revoke the cancellation of the applicant’s Prospective Marriage (temporary) visa.
That there be an order in the nature of mandamus remitting the application for revocation of the cancellation of the applicant’s visa to the respondent for determination according to law.
That the respondent pay the applicant’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3558 of 2007
| LE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Application
The applicant, a national of Vietnam, seeks review of a decision of a delegate of the Minister dated 31st October not to revoke an earlier decision to cancel her Prospective Marriage (temporary) visa. She claims that the decision is affected by apprehended bias and the Minister failed to comply with provisions of s 129 of the Migration Act 1958 (Cth).
The applicant seeks:
a)a declaration that the respondent’s decision is null and void and of no effect;
b)a writ of certiorari quashing the respondent’s decision; and
c)a writ of mandamus remitting the matter to the respondent for redetermination according to law.
Background
On 25th April 2007 the applicant applied for a Prospective Marriage (temporary) visa on the basis that she wished to marry a Mr Nguyen Thanh Binh, an Australian-born Vietnamese man who lives in Perth. The visa was granted on 29th August 2007.
On 17th September 2007 the Australian Embassy in Hanoi wrote to the applicant, advising her that her visa had been cancelled under s 128 of the Migration Act 1958. The letter referred to s 116(1) of the Migration Act and told the applicant:
You are advised that information has been received by the Department indicating that you may have entered into a contrived relationship with the Sponsor and that you do not genuinely intend to marry and that you do not genuinely intend to live together as the Sponsor’s spouse.[1]
[1] See Court Book at 141
The applicant’s solicitor, Mr Turner, wrote to the Embassy by fax on 26th September 2007, saying:
So that we may properly advise our client and provide meaningful submissions in respect of the revocation of your decision to cancel Ms Le’s visa could you please provide particulars of the information which you have and from whom it was received.[2]
[2] Court Book at 144
The Embassy replied by email the same day. The First Secretary and Principal Migration Officer, Mr Bleeze, said in the email:
I can confirm that this office has received a number of telephone calls from a community source who has requested that their identity be protected. This person has been interviewed by staff of the Compliance Section of the Australian Embassy. The source has demonstrated a detailed knowledge of Ms Le Thi Thuy’s backgrou7nd and the circumstances of this application.
You would be aware that I am obliged in these circumstances to respect the wishes of the source for confidentiality, and not to disclose specific details that might serve to identify the source. I am also conscious of the need to ensure you have sufficient information upon which to properly counsel your client and provide a response.
To this end I can clarify that the nature of the allegation can be summarised as that the spousal relationship has been contrived purely to enable Ms Le Thi Thuy to migrate to Australia, that neither she nor her spouse intend to reside together in Australia. It is alleged that the relationship has been facilitated by Ms le Thi Thuy’s family in Australia and that her spouse will be paid for his assistance.[3]
[3] Court Book 145
On 14th October 2007 Mr Turner wrote to the Australian Embassy by fax, saying:
I am instructed by Ms Le’s family in Australia that none of them have paid money to her sponsor to facilitate her visa application.
…It is also noteworthy that Mr Nguyen now resides in Perth and Ms le had booked a ticket, copy attached, to join him there.
As her family in Australia reside in Sydney, the alleged payment of money to facilitate a family re-union would be futile, as she would be almost as inaccessible to them in Perth as she would be in Hanoi.[4]
[4] Court Book 146
Mr Turner forwarded with that letter statutory declarations from the applicant’s brother and sister in Australia, a statement from Nguyen Thanh Binh’s uncle and aunt who reside in Ho Chi Minh City, a statutory declaration from Nguyen Thanh Binh, a declaration from the applicant and a copy of her airline ticket with Vietnam Airlines.[5]
[5] Court Book 148-160
On 31st October 2007 the Australian Embassy wrote to the applicant advising her that the Department had decided not to revoke the cancellation of her visa. The letter said:
After considering your response, the Department has decided not to revoke the cancellation of your visa under s 131 because your claims are inconsistent to advice received from a community source who has requested that their identity be protected.
I am satisfied that the visa cancellation is justified for the following reasons. At the time of grant the decision-maker had concerns regarding the genuineness of the relationship, given the very short period of time spent in each other’s company, your lack of knowledge regarding the sponsor, infrequency of and short length of phone contact, together with noted repetitiveness of sentimental comments and lack of exchange of any meaningful information contained in your letters. These factors are all indicators that the relationship is not genuine, however the decision-maker nevertheless decided to give you the benefit of the doubt.
Given the source of the community information demonstrated a detailed knowledge of you and the circumstances of your application, when considered with the factors noted above, I have decided to give more weight regarding the accuracy of this information than to the statements submitted by you that your marriage was not arranged.[6]
[6] Court Book 168
The applicant commenced proceedings in this Court on 16th November 2007
Application for Judicial Review
By means of an amended application filed on 5th February 2008, the applicant relies on two grounds for relief:
(1) The respondent’s decision is affected by apprehended bias; and
(2)The respondent failed to comply with the provisions of the Migration Act 1958 s 129.
As to the first ground, the applicant claims that the respondent relied upon information from a “community source” to cancel the applicant’s visa. The applicant provided by way of statutory declarations and other statements evidence that the information from a “community source” was unreliable. However, the respondent closed his mind to the possibility that the information from the “community source” was unreliable.
Mr Turner, who appeared for the applicant, submitted that the respondent applied a closed mind to his statutory obligation to consider realistically whether to revoke the decision to cancel the applicant’s visa. In closing his mind to the possibility that the information from the “community source” was unreliable, the respondent was only prepared to accept information which was consistent with advice received from a community source.
Further, by elevating the information from the community source to the position that only evidence which was consistent with that information would be accepted, the respondent effectively closed his mind to the possibility that the information from the community source was unreliable.
At the hearing, two emails were produced about the information from the community source. I was prepared to allow the applicant’s solicitor access to the documents but I directed that they be kept in a sealed envelope and not to be disclosed without leave. A short summary of the first email is that it is an account of a telephone conversation between an anonymous woman claiming to be calling from within Vietnam and an officer of the Department of Foreign Affairs and Trade. The woman alleged that the applicant’s brother had hired a man to sponsor the applicant to migrate to Australia. The woman provided the names of the applicant and her brother and the city where the applicant resides.
Mr Turner submitted that the only information of substance in the emails was the name of the applicant’s brother.
Mr Turner also submitted that the decision-maker had placed the information from the community source upon “such a pedestal” that nothing could persuade the decision-maker to change the decision. Further, there was a failure to alert the applicant top the fact that another reason for revocation of the visa was the decision-maker’s doubts about the genuineness of the relationship in the first place.
As to the second ground, the claim that the decision-maker failed to comply with s 129 of the Migration Act, Mr Turner submitted that by not revealing the name of the “community source” or providing a meaningful description of the circumstances of the informant, the decision failed to comply with the requirements of s 129.
The decision-maker relied upon “concerns regarding the genuineness of the relationship, given the very short period of time in each other’s company, your lack of knowledge regarding the sponsor, infrequency of phone contact together with noted repetitiveness of sentimental comments and lack of exchange of any meaningful information contained in your letter”.[7] The applicant claims that the decision-maker failed to give particulars of that information to the applicant.
[7] Court Book 168
Mr Turner submitted that the respondent has a statutory duty under s 129 to provide particulars of the grounds for cancellation and the information because of which the ground was considered to exist. The respondent’s decision was based on:
a)the information from the community source; and
b)the concerns, at the time of the decision, regarding the genuineness of the relationship.
The purpose of s 129 is to give people whose visas have been cancelled under s 116 a real opportunity to meet the grounds on which their visas were cancelled and present evidence and submissions as to why the cancellation should be revoked. The particulars given about the “community source” were insufficient to provide the applicant with a real opportunity to put her case, and no particulars were given of the “concerns regarding the genuineness of the relationship”. This, it is submitted, is a failure to comply with s 129 of the Act and a jurisdictional error.
Counsel for the Minister, Mr Cleary, submitted that apprehended bias had not been made out.
Mr Cleary submitted that the obligation to accord procedural fairness involves the notion that administrative decisions, including tribunal decisions, will be made without a reasonable apprehension of bias on the part of the decision-maker (Ebner v Official Trustee in Bankruptcy[8]; also Laws v Australian Broadcasting Tribunal[9]). The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision (Webb v R[10] at 70-71; Laws v Australian Broadcasting Tribunal at 90-92; Ebner v Official Trustee in Bankruptcy at 343-345; and Re Refugee Review Tribunal; ex parte H[11] at [27]-[32]).
[8] (2000) 205 CLR 337 at 343-344
[9] (1990) 170 CLR 70 at 91-2
[10] (1994) 181 CLR 41
[11] (2001) 179 ALR 425
Allegations of bias are serious and must not be lightly made and referred to the decision of Brennan J in Attorney-General (NSW) v Quin[12] at 36. In my view, with respect, the decision of Brennan J is not authority for that proposition, at least not at 36.
[12] (1990) 170 CLR 1
Mr Cleary submitted that on a fair reading of the decision, a fair-minded and informed person would not reasonably apprehend that the delegate did not bring an impartial mind to bear on the decision. There is nothing to suggest that the delegate closed her mind to any evidence. She had regard to the submissions by the applicant’s solicitor and the statutory declarations provided by the applicant and her family. However, the delegate did not accept that evidence, finding it inconsistent with the information received from the community source.
The fact that the delegate gave more weight to the information from the community source and rejected the evidence from the applicant does not of itself prove that the delegate closed her mind to the evidence before her (SZLSW v Minister for Immigration and Citizenship[13] per Smith FM at [47]). The delegate was entitled to assess the evidence and attach such weight to it as she regarded as appropriate (Lee v Minister for Immigration and Multicultural and Indigenous Affairs[14] at [27]). The question of weight is a factual matter and cannot be challenged by the Court.
[13] [2008] FMCA 498
[14] [2005] FCA 464
As to the applicant’s second ground, that the delegate failed to comply with s 129 of the Act by failing to provide sufficient particulars, counsel for the Minister submitted that s 129(1)(b) requires that particulars of the ground upon which an applicant’s visa may be cancelled as well as any information (not being non-disclosable information) because of which the ground was considered to exist must be included in a notice to the applicant. He submitted that the information about the community source was “non-disclosable information” within the meaning of s 129 (see the definition in s 5(1)) of the Act. This is because the information was given in confidence to the Australian Embassy and its disclosure by the delegate “would found an action by [the community source] for breach of confidence (see s 5(1)(c) of the definition of “non-disclosable information”). Consequently, it is submitted that the delegate had no statutory obligation to disclose any information to the applicant about the “community source”.
In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[15] the High Court found that common law procedural fairness required the Refugee Review Tribunal to advise an applicant of the substance of allegations made against the applicant, but found that the Tribunal was not obliged to give the applicant a copy of the document containing the allegations.
[15] (2005) 225 CLR 88
Further, Applicant VEAL was recently applied by Besanko J in Harrington v The Honourable Kevin Andrews MP, Minister for Immigration and Citizenship[16] at [58], where his Honour found that the substance of non-disclosable information (parole reports) should have been disclosed to the applicant.
[16] [2007] FCA 1287
Similarly, in Kumar v Minister for Immigration & Anor[17] at [28], Lloyd-Jones FM found that the Migration Review Tribunal was under no obligation under s 359A to provide non-disclosable information to the applicant but complied with the requirements of the section by providing so much of the information as it could without breaching confidence but not disclosing how and from whom the Tribunal obtained the information.
[17] [2007] FMCA 995
Counsel for the Minister submitted that the delegate complied with the statutory obligations under s 129. She disclosed to the applicant and her solicitor the substance of the information received from the community source, namely:
a)the marriage was contrived;
b)neither the applicant nor the prospective spouse intended to reside together in Australia; and
c)the prospective spouse was to be paid for his part in the scheme.
Thus, he submitted, the delegate had not failed to comply with the requirements of s 129.
Conclusions
The applicant claims that the decision of the Minister’s delegate is affected by jurisdictional error in two ways:
a)The decision is affected by apprehended bias; and
b)The delegate failed to comply with s 129 of the Migration Act.
The applicant’s first ground
The applicant claims an apprehension of bias on the part of the Minister’s delegate. It is submitted that the delegate applied a closed mind to the possibility that the information from the community source was unreliable and was only prepared to accept information consistent with the advice from the community source.
An allegation of apprehended bias is not to be made lightly. Whilst there is a clear distinction between apprehended bias and actual bias, it is, in my view, clear that an allegation of apprehended bias raises the question of bad faith on the part of the decision-maker, and it must be clearly alleged and proved (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[18] at [43]).
[18] [2002] FCAFC 361
In their text Judicial Review of Administrative Action[19] the authors, Messrs Aronson, Dyer and Groves, state:
The core of the test for bias for decision-makers exercising public power is whether the relevant circumstances are such as would give rise, in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the part of the decision-maker.[20]
[19] Third Edition, Lawbook Co, Sydney, 2004
[20] Aronson, Dyer & Groves, Judicial Review of Administrative Action, Third Edition Lawbook Co., Sydney 2004, p. 565
More specifically, the High Court has set out the test to be applied in Re Refugee Review Tribunal; ex parte H:
[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.[21] 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 proceedings, 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.[22]
[21] Footnotes omitted
[22] (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ
Whilst in that decision their Honours were dealing with the conduct of a hearing before the Refugee Review Tribunal and in the case under review the Court is considering a decision by the Minister’s delegate, the test for apprehended bias is still appropriate.
True it is that the delegate gave more weight to the information from the community source than to the evidence of the applicant and her family, but this does not of itself prove that the delegate closed her mind to the evidence. The letter to the applicant dated 31st October 2007 referred to the correspondence from the applicant’s solicitor:
…attaching statutory declarations by your sponsor and family members containing denials that your marriage was arranged for payment.
Also received were statements by the sponsor’s relatives claiming that the relationship is genuine.[23]
[23] Court Book 168
The delegate went on to say that this material was considered:
After considering your response, the Department has decided not to revoke the cancellation of your visa under s 131 because your claims are inconsistent to advice received from a community source who has requested that their identity be protected.[24]
[24] ibid.
This does not show that the delegate closed her mind to relevant evidence when arriving at the decision not to revoke the cancellation of the applicant’s visa (see SZLSW v Minister for Immigration & Anor[25]). The delegate was entitled to accept or reject or give such weight to the evidence as she thought appropriate in all the circumstances (Lee v Minister for Immigration & Multicultural & Indigenous Affairs[26] per French J at [27]).
[25] [2008] FMCA 498 at [47]
[26] [2005] FCA 464
As I am not satisfied that the applicant has shown that the delegate’s decision was affected by apprehended bias, the applicant’s first ground has not been made out.
The applicant’s second ground
The applicant’s second ground claims that the delegate failed to comply with the provisions of s 129 of the Migration Act, by giving insufficient particulars about the “community source” and by not giving particulars about the delegate’s concerns regarding the genuineness of the relationship.
Under s 129(1) of the Act:
If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:
(a)stating the ground on which it was cancelled; and
(b)giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist: and…
The notice given to the applicant by letter dated 17 September 2007 gave this ground:
You are advised that information has been received by the Department indicating that you may have entered into a contrived relationship with the Sponsor and that you do not genuinely intend to marry and that you do not genuinely intend to live together as the Sponsor’s spouse.[27]
[27] Court Book 141
The obligation on the delegate was to give particulars of the ground but not give non-disclosable information. “Non-disclosable information” in this case is defined under s 5(1) as:
non-disclosable information means information or matter:
(c)whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
I am satisfied that the identity of the “community source” meets the definition of “non-disclosable information” and the delegate was not obliged to provide that information under s 129(b) of the Act.
In my view, the delegate did provide to the applicant the substance of the information from the community source and thereby met the obligation to accord procedural fairness to the applicant (see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[28] at [7], [18] and [29]; Harrington v The Honourable Kevin Andrews MP, Minister for Immigration and Citizenship[29] at [58], and Kumar v Minister for Immigration & Anor[30] at [28]).
[28] (2005) 225 CLR 88
[29] [2007] FCA 1287
[30] [2007] FMCA 995
However, the decision of the delegate makes it clear that there was another reason that was previously put to the applicant:
I am satisfied that that the visa cancellation is justified for the following reasons. At the time of grant the decision maker had concerns regarding the genuineness of the relationship, given the very short time spent in each other’s company, your lack of knowledge regarding the sponsor, infrequency and short length of phone contact, together with noted repetitiveness of sentimental comments and lack of exchange of any meaningful information contained in your letters. These factors are all indicators that the relationship is not genuine, however the decision-maker nevertheless decided to give you the benefit of the doubt.[31]
[31] Court Book 168
The decision-maker’s concerns at the time of the grant of the visa were not put to the applicant in the notice under s 129. The matters referred to were not matters that had come from the community source, who made allegations about the sponsor being paid to go through with a sham marriage. The applicant and her solicitor were not given the opportunity to make comments or provide evidence about these matters, only about the allegations of the community source.
Consequently, the delegate did not comply with the requirements of s 129 of the Migration Act and jurisdictional error has been made out. I am satisfied that relief by way of certiorari and mandamus should be granted and I will consider the question of costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 27 August 2008
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