Lin v Minister for Immigration

[2017] FCCA 2599

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2599

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in its application of Regulation 1.05A of the Migration Regulations 1994 (Cth) – whether the applicant was denied procedural fairness – whether the Administrative Appeals Tribunal approached its task with bias or apprehended bias – no jurisdictional error – application dismissed.

Legislation:
Evidence Act 1995 (NSW), s.135
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 338, 357A, 359A, 359AA, 360, 474
Migration Regulations 1994 (Cth), cl.445.211, r.1.05A
Federal Circuit Rules 2001 (Cth), r.44.12

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Galea v Galea (1990) 19 NSWLR 263
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264
Huynh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 122
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
AZACK v Minister for Immigration and Border Protection [2014] FCA 762
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Waterford v The Commonwealth (1987) 163 CLR 54
Reg v The District Court; Ex parte White (1966) 116 CLR 644
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Applicant: TONG LIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2702 of 2015

Judgment of: Judge Emmett

Hearing date: 24 October 2017

Date of Last Submission: 24 October 2017

Delivered at: Sydney

Delivered on: 30 October 2017

REPRESENTATION

Counsel for the Applicant: Mr Niall Carney

Solicitors for the Applicant: Lyon Lawyers

Counsel for the Respondents: Mr David Hughes

Solicitors for the Respondents: DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2702 of 2015

TONG LIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 8 September 2015 (“the Tribunal”).

2. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. On 22 March 2014, the applicant applied for an Extended Eligibility (Temporary) (Class TK) Subclass 445 visa (“Subclass 445 visa”).

2. On 18 August 2014, the Delegate refused the applicant’s application for a Subclass 445 visa.

3. On 8 September 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

4. On 8 September 2015, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a Subclass 445 visa.

5. On 2 October 2015, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

6. On 12 November 2015, the applicant’s application for judicial review was set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on 11 March 2016, before me. On that occasion, the matter was set down for final hearing today.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Under s.338 of the Act, a decision to refuse to grant a visa is a decision which may be reviewed by the second respondent.

3. The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 360, which provide that:

   “359A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   360  Tribunal must invite Applicant to appear

   (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.”

4. Section 359AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

5. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

6. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

7. At the time the visa application was lodged, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass - Subclass 445 Dependent Child visa: Item 1211 (4) of Schedule 1 to the Migration Regulations 1994 (Cth) (“The Regulations”). The criteria for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Regulations.

8. Clause 445.211 of the Regulations relevantly provides that the applicant must be a dependent child of a visa-holding parent. 'Dependent child' is defined in r.1.03 of the Regulations. The term 'dependent' is defined in r.1.05A of the Regulations is as follows:

   “(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:

   (a) at the time when it is necessary to establish whether the first person is dependent on the other person:

   (i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial  support to meet the first person's basic needs for food, clothing and shelter; and

   (ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or

   (b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.”

The Delegate’s decision

1. On 18 August 2014, the Delegate refused the applicant’s application for a Subclass 445 visa on the basis that the applicant did not meet cl.445.211 of the Regulations because the Delegate was not satisfied the applicant was a dependent child of a visa-holding parent.

The Tribunal’s review and decision

1. On 8 September 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 6 August 2015, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it, but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 7 September 2015 to give oral evidence and present arguments.

3. On 7 September 2015, the applicant attended the Tribunal hearing and gave evidence.

4. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.

5. The Tribunal noted that it questioned the applicant about his residence in Australia and his financial affairs. The Tribunal formed the view that the applicant was utterly untruthful in his evidence to the Tribunal. The Tribunal found the applicant to be evasive and that he often changed his claims. The Tribunal found the applicant’s evidence shifted depending on what the applicant perceived to be the best answer.

6. The Tribunal found that the applicant had not been truthful in his evidence relating to his employment. The Tribunal noted that the applicant informed the Tribunal he did not have a stable job but worked part-time. The Tribunal noted that the applicant said that he worked with a friend at Flemington Market and he helped another friend with a cleaning job. The Tribunal noted that the applicant said he worked from 2012 until the time of the Tribunal hearing.

7. The Tribunal noted that the applicant then changed his evidence and said that was not working at the time of the Tribunal hearing. The Tribunal found that the applicant’s evidence contradicted his earlier statement that he had been working since 2012 to the date of the Tribunal hearing, helping a friend, and that he earned $12 an hour.

8. The Tribunal noted that the applicant then informed the Tribunal that he did not have to work because his mother supported him financially. The Tribunal noted that it appeared that the applicant 'recalled' that he was claiming to be dependent on his mother and that his employment might affect that determination, so his evidence changed.

9. The Tribunal noted that the applicant suggested that he was simply helping his friends and worked 'for fun' and when he worked at Flemington Market, as he wanted to see what it was like to own a stall. The Tribunal did not find that evidence convincing. The Tribunal found that the applicant had not been truthful in his evidence and, having decided that it was more beneficial to his application that he did not work, he changed his evidence about his employment.

10. The Tribunal noted that on the application form the applicant stated that he was not employed and that he failed to provide information about his employment history. The Tribunal noted that the applicant gave several explanations for failing to provide correct and complete information on the application form. The Tribunal found none of those explanations convincing.

11. The Tribunal also found that the applicant was not truthful when discussing his mother's employment. The Tribunal noted that the applicant initially informed the Tribunal that his mother worked when she had no visa. The Tribunal noted that the applicant then changed his evidence and said that his mother was not working unlawfully. The Tribunal noted that the applicant then said that she did work unlawfully but was not spending the money on him.

12. The Tribunal noted that it asked applicant what his mother used the money for, the applicant said he did not know. The Tribunal found it difficult to see how the applicant knew the money was not spent on him if he had no idea what the money was used for. The Tribunal found that the applicant had not been truthful in his evidence to the Tribunal and that he deliberately sought to withhold information about his mother's employment while an unlawful non-citizen.

13. The Tribunal also questioned the applicant about the fact that the money transfers from a relative in China included periods when the applicant's mother was in Australia. The Tribunal noted that the applicant initially said that the transfers were from his father, who was providing him with financial support. The Tribunal noted that the applicant then said that he was confused and he ultimately stated it was the money from his parents' investment. The Tribunal found that evidence to contradict the applicant's initial evidence that his father stopped supporting him since he last made the application for the visa in early 2012 and had not supported him since his mother formed the new relationship. The Tribunal found that the applicant had not been truthful in his evidence and that he was willing to change his evidence if he believed it would assist his application.

14. The Tribunal noted that the applicant provided to the Delegate and the Tribunal various documents concerning money transfers. The Tribunal also noted that the applicant provided to the Tribunal statements from third parties indicating that money was given by the applicant's mother for the benefit of the applicant. The Tribunal noted that given its concerns with the applicant's evidence and credibility generally, the Tribunal was not satisfied that such evidence was reliable.

15. The Tribunal noted that the applicant’s evidence indicated that the applicant received some funds through bank transfers from the applicant’s mother's partner and some funds through cash deposits. The Tribunal was not satisfied that the money paid by the mother’s partner was the money of the applicant's mother, as opposed to that of her partner.

16. The Tribunal put to the applicant that the legislation requires the applicant's dependence to be on the visa-holding parent, being his mother, and it is not sufficient to show dependence on the mother's partner.

17. Having considered the totality of the evidence before it, the Tribunal accepted that the applicant's mother provided him with some financial support. However, the Tribunal found that the applicant also received support from other sources, including from his father, mother’s partner and others. The Tribunal was not satisfied on the evidence before it that the applicant's reliance on his mother is, or was at the time of the application, greater than any reliance by him on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter.

18. The Tribunal was also not satisfied that at the time the application was made, and for a substantial period immediately before that time, the applicant was wholly or substantially reliant on his mother for financial support to meet his basic needs for food, shelter and clothing. The Tribunal was not satisfied that the applicant is a dependent child of his mother, who is the visa holding parent.

19. The Tribunal was not satisfied the applicant met cl. 445.211 of the Regulations.

20. Accordingly, The Tribunal affirmed the decision not to grant the visa applicant a Subclass 445 visa.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Niall Carney, of counsel. 

2. At the outset I asked Mr Carney to confirm that the applicant relied on the Amended Application, filed on 22 April 2016. Mr Carney confirmed that he did. Those grounds are as follows:

   “1. The Tribunal erred in applying the law.

   Particulars:

   The Tribunal erred in its application of Reg. 1.05A of the Migration Regulations 1994 (“the regulations”) in that the word “reliance” as contained in 1(a)(ii) of Reg.1.05A was not assessed on the subjective state of mind of the Applicant but was assessed on the objective circumstances of the proportion of support provided to the Applicant.

   2. The Tribunal was apparently so preoccupied by a pre-formed conclusion and refused to believe the Applicant so as to deny the Applicant procedural fairness.

   Particulars:

   The member of the Tribunal refused to believe obvious facts and statements made by the Applicant on the basis that these were unusual.

   3. The conduct of the Tribunal was oppressive such that an impartial and reasonable bystander would apprehend bias and therefore was not a valid decision under section 474.

   Particulars:

   The member of the Tribunal asked the Applicant questions which were not within the knowledge of the Applicant and made comments that the Applicant was evasive when the Applicant could not provided the answer she wanted.

   4. Denial of Natural Justice.

   Particulars:

   The Applicant did not get a fair hearing.”

3. Mr Carney first informed the Court that he only came into the matter a month ago. Mr Carney then said it was only three weeks ago that he had come before the Court. Mr Carney informed the Court that it would be necessary for the Court to listen to the recording of the Tribunal hearing in support of his contention that the hearing had been unfair and biased.

4. Mr Carney also read the affidavit of Hai Ou Wang affirmed 20 April 2016 which annexed a transcript of the Tribunal hearing.

5. I raised with Mr Carney that the grounds of the Amended Application remained largely unparticularised. Mr Carney said that he intended to elaborate on them through the recordings and through the transcript. I asked Mr Carney why it was necessary to listen to the recording. Mr Carney responded that it was because the recording would disclose the tone of the Tribunal member.

6. I then asked Mr Carney what were the concerns about the manner in which the Tribunal had questioned the applicant, including which questions Mr Carney contended were not within the knowledge of the applicant and were therefore oppressive and biased. Mr Carney said they were too numerous to identify and that he required an adjournment in order to fully particularise them. I pointed out to Mr Carney that he had had three weeks in which to particularise the grounds upon which the applicant relied.

7. I reminded Mr Carney that the applicant had been given leave on 12 November 2015 to file and serve an Amended Application giving complete particulars of each ground of review relied upon. I note that the Amended Application filed on 22 April 2016 was filed by Mr Carney’s instructing solicitors Lyon Lawyers.

8. Any adjournment was opposed by the respondent, although the respondent’s counsel, Mr David Hughes, said that the first respondent had not been given notice of any particulars in support of the relatively bare allegations obtained in the grounds.

9. I asked Mr Carney to identify again in the transcript which questions caused him concern. Mr Carney then commenced at page 4 of the transcript reading various questions and answers that did not suggest any impropriety at all on the part of the Tribunal either in the nature of the questions or the manner in which they were asked. After several pages of this exercise, during which Mr Carney appeared almost to be reading the entirety of the transcript, I suggested to Mr Carney that he take ten minutes to go outside with his instructing solicitor and client and identify those questions that he felt were the strongest to support his contentions.

10. When he returned shortly after ten minutes later, Mr Carney said that he had identified 51 questions of concern and had not yet finished. I asked him if he was able to narrow down the number of questions in the transcript upon which he intended to rely in any way and he said that he could not distinguish between the level of importance of each of them as they were all equally important.

1. Mr Carney made clear that it was the applicant’s complaint about the hearing as disclosed in the transcript that was at the heart of all the complaints in the grounds.

2. I then limited Mr Carney’s submissions to thirty minutes. Mr Carney then commenced going through the transcript almost page by page identifying questions and answers; again, not one of which made out the complaints contended for by Mr Carney.

3. Having read the transcript, I am satisfied that the Tribunal’s summary of various exchanges it had with the applicant about his claims is accurate. Further, I am not satisfied that any question asked by the Tribunal was expressed in terms of irritation or sarcasm or any expressed “acerbic utterance” (see Galea v Galea (1990) 19 NSWLR 263 at [283]) (“Galea”). In any event, even those types of criticisms were not sufficient in Galea to demonstrate bias on the part of a Judge exercising judicial power.

4. It must be remembered that the Tribunal is conducting an administrative hearing of an inquisitorial nature. The Tribunal, being an investigative fact-finding body, is entitled to test and probe recounted history (see NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [19] per Allsop J (as his Honour then was)).

5. The applicant’s answers to questions by the Tribunal make clear that the applicant was given an opportunity to answer and explain any concerns.

6. There is nothing in the transcript to suggest that any further assistance would have been gained by listening to a recording of the Tribunal hearing. Counsel for the first respondent objected to the Court spending 1.5 hours listening to a recording of the Tribunal hearing in the absence of proper particulars and where a transcript was available. The first respondent’s objection was based on s.135(c) of the Evidence Act 1995 (NSW), that to listen to the recording was an undue waste of time. I agree.

Ground 1

1. Ground 1 alleges that the Tribunal misapplied reg.1.05A of the Regulations because the Tribunal failed to assess the applicant’s subjective state of mind and erred in assessing the applicant’s reliance only on objective circumstances.

2. Plainly, there is nothing on the face of reg.1.05A of the Regulations to suggest that there is any subjective element. Moreover, Huynh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 122 per Lander, Rares and Besanko JJ (“Huynh”) makes clear that reg.1.05A of the Regulations “prescribes clear objective criteria to be met for dependence to be established.” In Huynh, Lander and Rares JJ stated at [28] as follows:

   “When one turns to reg 1.05A(1) it is noticeable that it prescribes clear objective criteria to be met for dependence to be established. First, reg 1.05A(1) stipulates that the child (who is the ‘first person’ for present purposes) must be at the time at which consideration as to his or her position is being given, ‘wholly or substantially’ reliant on the parent for financial support. Secondly, that degree of reliance is required to have been ‘for a substantial period immediately before that time’. Thirdly, the financial support being provided must be to meet the child’s basic needs in three respects: viz: food, shelter and clothing. Lastly, the child’s reliance on the parent must be greater than his or her reliance on any other person or source of support for financial support to meet those three basic needs.”

3. Ultimately, the Tribunal accepted that the applicant’s mother had provided him with some financial support. However, the Tribunal found that the applicant also received support from other sources, including his father, his mother’s partner and others. The Tribunal did not accept that the money from other sources was at the orchestration of the applicant’s mother. The Tribunal was not satisfied on the evidence before it that the applicant’s reliance on his mother was greater than any reliance by him on any other person.

4. The Tribunal was also not satisfied that at the time the application was made, and for a substantial period immediately before that time, the applicant was wholly or substantially reliant on his mother for financial support to meet his basic needs for food, shelter and clothing.

5. As stated above, the Tribunal found the applicant to be “utterly untruthful in his evidence.” The Tribunal found the applicant to be evasive and found that his evidence would shift depending on what the applicant perceived to be the best answer for him. The Tribunal gave examples of such shifting evidence in its decision record, including several explanations given by the applicant for failing to provide correct and complete information on the application form. The Tribunal found none of the explanations to be convincing.

6. Further, the applicant’s evidence shifted in relation to whether he had been employed or worked. Having first said that he did work 6-7 hours a week earning $10 per hour, and that he presently earned $12 per hour helping friends with the export business, the applicant changed his evidence to say that he did not work and that any work he had done was no more than helping friends and working for fun. The Tribunal did not find that evidence to be convincing and found that the applicant had changed his evidence when it became apparent to him that it was more beneficial to his application that he did not work.

7. The Tribunal found the applicant’s evidence similarly shifted in relation to whether his mother worked when she had no visa.

8. The Tribunal also found that the applicant’s evidence in relation to support from his father was inconsistent.

9. In summary, the Tribunal stated as follows:

   “The Tribunal has formed the view that the applicant has not been truthful in his evidence and that he was willing to change his evidence if he believed it would assist his application.”

10. In considering documents provided to it in relation to money transfers, having regard to the Tribunal’s concerns about the applicant’s credibility generally and the reliability of his evidence, the Tribunal was not satisfied that unnamed transfers and cash deposits appearing in the applicant’s bank statement reflected payments made by his mother. The Tribunal did not accept the evidence of the applicant or his mother that money was given to someone in China and which was then to be given to the applicant in Australia.

11. Similarly, the Tribunal did not accept that money paid by the applicant’s step-father was in fact money from the applicant’s mother. The Tribunal made that finding noting that the Delegate had accepted that the transfers from the applicant’s step-father were from his mother. The transcript of the Tribunal hearing makes clear that the Tribunal put to the applicant its concerns about the source of money received by the applicant, including from his step-father.

12. In exploring the applicant’s evidence of the source of monies received by him, the transcript makes clear that the Tribunal put to the applicant that it needed to be satisfied that his dependence on his mother, and his reliance on her for basic needs, was more than from any other source. The Tribunal specifically explained to the applicant that the Tribunal needed to be satisfied that the applicant was dependent on his mother and not his step-father.

13. The Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

14. A fair reading of the Tribunal’s decision record makes clear that it understood and properly applied the proper criteria in reg.1.05A of the Regulations in concluding that the applicant was not a dependent child of his mother, the visa holding parent.

15. Accordingly, Ground 1 is not made out.

Grounds 2, 3 and 4

1. Grounds 2, 3 and 4 all rely on the complaints about the conduct of the Tribunal’s hearing and appear to allege procedural unfairness, denial of natural justice and oppression in the manner in which the applicant was questioned, as well as the Tribunal’s failure to accept the applicant’s evidence.

2. As stated above, none of these bare allegations were properly particularised, despite the applicant being directed by the Court to file any Amended Application giving complete particulars of each ground of review relied upon.

3. To the extent that Ground 3 alleges bias or apprehended bias, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

4. A fair reading of the Tribunal’s decision record and the transcript does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).

5. A fair reading of the transcript does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

6. It is well established that the character and consistency of information given by the applicant was material that the Tribunal could take into account when assessing the reliability of his evidence. The Tribunal’s developing views as to the reliability of the applicant’s evidence as disclosed in the transcript occurred from a consideration of the whole of the material, the content of the progressive responses and the way in which answers were given by the applicant.

7. Further, the Tribunal raising its concerns with the applicant does not by itself suggest bias (see AZACK v Minister for Immigration and Border Protection [2014] FCA 762 at [26] – [28]) (“AZACK”). As Mansfield J said in AZACK at [42] to [44]:

   “42. […] That may involve robust and forthright testing of claims and indeed such testing of claims may enhance the fairness of the administrative process by alerting the claimant to the concerns of the decision maker: SZRUI, at [24]-[27] per Flick J (with whom Allsop CJ agreed at [1]).

   43. Flick J at [27] expressed the issue now confronting the Court in the following terms:

   The difficulty in any given case is to identify those cases in which a decision-maker is expressing tentative views and thereby enhancing the ability of a claimant to be properly heard as supposed to those cases where the expression of views by a decision-maker either gives rise to a reasonable apprehension that they are really not prepared to change those views no matter what may be further said by a claimant or in fact evidences a closed mind.  The reasonable apprehension that a decision-maker has reached a fixed conclusion before the completion of a hearing is enough to vitiate the administrative process.

   44. As his Honour then said at [29], more must be shown than a mere predisposition to a particular view and it is necessary to show a decision-maker’s mind is not open to persuasion: see also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Gleeson CJ and Gummow J at 531-532.”

8. Otherwise, there is nothing to suggest any denial of procedural fairness or natural justice. The applicant was invited to attend a hearing before the Tribunal in accordance with the statutory scheme and did so.

9. In relation to the allegation in Ground 3, that the Tribunal asked the applicant questions that were not within his knowledge, and made comments that the applicant was evasive when he could not provide the answer, the assessment of the applicant’s evidence was entirely a matter for the Tribunal. As stated above, the Tribunal’s findings were not tainted by any failure to afford procedural fairness and were open to it on the evidence and material before it for the reasons it gave.

10. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

11. Otherwise, the complaints in grounds 2, 3 and 4 appear to spring from a disagreement with the findings and conclusions of the Tribunal, thereby inviting merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

12. In the circumstances, none of grounds 2, 3 or 4 are made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  30 October 2017