LUO v Minister for Immigration
[2019] FCCA 2193
•15 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LUO v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2193 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether s.359A of the Migration Act 1958 (Cth) applied to certain items of information – whether Tribunal conducted itself in a way to give rise to a reasonable apprehension of bias – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5F, 57, 359A, 424A |
| Cases cited: Kanagul v Minister for Immigration & Anor [2014] FCCA 1219 |
| Applicant: | HUIMIN LUO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1060 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 24 August 2018 |
| Date of Last Submission: | 24 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Solicitors for the Applicant: | Teleo Immigration Lawyers |
| Counsel for the First Respondent: | Mr M J Smith |
| Solicitors for the First Respondent: | Mills Oakley |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1060 of 2017
| HUIMIN LUO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) visa (Partner visa) raises two questions. The first is whether s.359A of the Migration Act 1958 (Cth) (Act) applied to certain information that had been provided to the Tribunal. The second question is whether, because of the matters to which I refer later in these reasons, the Tribunal so conducted itself as to give rise to a reasonable apprehension of bias.
Background
The applicant is a citizen of the People’s Republic of China. She first arrived in Australia on 14 March 2015 on a tourist visa which was due to expire on 14 June 2015.[1] On 10 June 2015 the applicant applied for a further tourist visa, which was granted on 11 August 2015. That visa was valid only until 31 August 2015. The applicant has not held any “substantive visa”, as that expression is defined in s.5 of the Act, after 31 August 2015, and obtained no other visa until 31 December 2015 when she was granted a bridging visa.
[1] CB115
Partner visa requirements
On 14 June 2016 the applicant applied for a Partner visa on the basis of her relationship with the sponsor, a citizen of Australia. To have been entitled to a Partner visa the applicant had to satisfy, among other things, the criterion specified in cl.820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That paragraph requires that at the time of application for a Partner visa the applicant is the spouse or de facto partner of an Australian citizen. Subsection 5F(1) of the Migration Act 1958 (Cth) (Act) provides that a person is the “spouse” of another person if, under s.5F(2) of the Act, the two persons are in a “married relationship”. Under s.5F(2) of the Act, persons are in a “married relationship” if:
a)they are married to each other under a marriage that is valid for the purposes of this Act; and
b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
c)the relationship between them is genuine and continuing; and
d)they live together, or do not live separately and apart on a permanent basis.
Subsection 5F(3) of the Act provides that the Regulations “may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist”. The Regulations have made provision, and this is to be found in reg.1.15A of the Regulations. Subregulation 1.15A(2) provides that, when considering an application for, among other subclasses of visas, a Partner visa, the Minister must consider all the circumstances of the relationship, including the matters set out in reg.1.15A(3) of the Regulations. Those matters are:
a)the financial aspects of the relationship, including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; the basis of any sharing of day-to-day household expenses; and
b)the nature of the household, including any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework; and
c)the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities; and
d)the nature of the persons’ commitment to each other, including the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
Another criterion the applicant was required to satisfy is cl.820.211(2)(d) of Schedule 2 to the Regulations. That paragraph requires an applicant who is not the holder of a substantive visa at the time of application to satisfy criteria 3001, 3003, and 3004 of Schedule 3 to the Regulations unless the Minister is satisfied there are compelling reasons for not applying those criteria. Criterion 3001 of Schedule 3 to the Regulations requires that the application for a Partner visa be validly made within 28 days after the last day on which the applicant ceases to hold a substantive visa.
Before the delegate
By letter dated 29 February 2016 the delegate invited the applicant to provide evidence of her relationship with the sponsor.[2] By email sent on 24 March 2016 the applicant’s agent provided to the delegate a number of documents, including a marriage certificate, a rental bond in the name of the applicant and the sponsor, and a tenancy agreement.[3] In addition the agent provided a letter dated 24 March 2016 containing submissions.[4] The submissions were principally directed to showing there were compelling circumstances for waiving criterion 3003. The agent claimed the applicant had been given a visa which shows it would last until 31 December 2015; on 10 December 2015 the applicant engaged another agent to apply for a student visa on her behalf but, on 24 December 2015, the agent “admitted that the student visa couldn’t be applied”; before 31 December 3015 the applicant “approached the current agent and enquired about [a] partner visa”, indicating that “she is in a relationship to an Australian citizen since 22 Oct 2015” and that their marriage was scheduled to be held on 13 January 2016; but, in the course of being counselled by the agent, the applicant became aware she did not hold any visa. The applicant claimed she had been defrauded.
[2] CB34
[3] CB39
[4] CB41
The delegate accepted the applicant most likely had been the victim of poor advice, but the delegate did not consider that circumstance to be compelling. The delegate was of the view the applicant did not exercise due diligence in her migration affairs and the delegate did not accept the applicant was a genuine student who would have qualified for the grant of a student visa during the period in which she did not hold a visa. The delegate also noted that although the applicant claimed she believed her visa was valid only until 31 December 2015, she had already made plans to marry the sponsor on 13 January 2016; that the applicant had informed a status resolution officer that the applicant had not been living together; and that evidence of joint living arrangements began almost six weeks after the applicant lodged her application for a student visa. The delegate found the applicant did not have a compelling reason to remain in Australia. The delegate also found that:[5]
your time overstaying your visa and applying for a bridging visa E extensions with the Department, allowed you to delay your departure from Australia until you could enter into a spousal partner relationship and lodge an onshore partner application on this basis.
[5] CB67
The delegate considered whether the applicant was in a genuine spousal relationship:
Finally, I have considered the information and evidence provided in your initial application and with your submission. The limited evidence provided does not necessarily lead me to conclude that you are in a genuine spousal relationship with your sponsor, however I have not undertaken a formal assessment of your relationship as, regardless, the existence of a genuine relationship is not, in itself, a compelling reason to waive the Schedule 3 criteria, given that genuineness should form the basis of all partner visa applications.
Tribunal’s reasons
The Tribunal first considered whether the applicant and sponsor were in a spousal relationship.
a)The Tribunal was satisfied the applicant and sponsor were validly married.[6]
b)The Tribunal was not satisfied the financial aspects of the parties’ relationship supported a finding that they had a mutual commitment to a shared life as husband and wife to the exclusion of others, or that the applicant saw her relationship with the sponsor as a long term one.[7] The applicant made no contribution to the financial running of the household,[8] even though she said she owns a property in China which she rents out to a business for around AUD1,800 per month, and a taxi from which she receives an income of around AUD400-500 per month;[9] the applicant was not aware if the sponsor had any savings or assets, and said that he did not ask her about these matters;[10] the sponsor was not aware the applicant received any income at all apart from what he provided her;[11] and the parties do not have any joint ownership of any assets, or any joint liabilities.[12]
c)The Tribunal accepted the applicant provides care and support for the sponsor’s teenage son when he stays with the sponsor during scheduled access visits which occur every other weekend, and for half of the school holidays.[13] The Tribunal also accepted the parties had lived together, first with the sponsor’s mother for a few months, and together as a married couple for about one year, and that the applicant is responsible for the running of the house, including cooking, cleaning, and looking after the sponsor’s young son.[14] The Tribunal said it gave these matters “some positive weight”.[15]
d)The Tribunal accepted the evidence supported a finding that “the applicant’s” extended family, by which I infer the Tribunal intended to mean the sponsor’s family, regarded the applicant as a member of their family who love her, and support her relationship with the sponsor; that the sponsor’s health has deteriorated, but the applicant has been supportive of and has cared for the applicant; and there was evidence that the parties attended family gatherings and have travelled to Queensland together to spend time with one of the sponsor’s brothers, and are considered a married couple.[16] The Tribunal also gave these matters “some positive weight”.[17]
e)The Tribunal was not satisfied the parties had a mutual commitment to a shared life together as husband and wife.[18] The Tribunal relied on the applicant’s having withheld information from the sponsor about her financial affairs; the sponsor told the Tribunal the applicant had not told him the details of her migration history; and the sponsor was unaware of the applicant’s activities during the period she spent in Australia before he met her.[19]
f)The Tribunal noted the applicant does not speak English well, and the sponsor does not speak “Chinese”; but the parties claimed to be able to communicate through Google Translate.
[6] CB156, [20]
[7] CB156, [27]
[8] CB156, [22]
[9] CB156, [23]
[10] CB156, [24]
[11] CB156, [25]
[12] CB156, [27]
[13] CB156-157, [29]
[14] CB157, [30]
[15] CB157, [31]
[16] CB157, [33]
[17] CB157, [34]
[18] CB158, [47]
[19] CB158
The Tribunal also found it was not satisfied the applicant is a witness of truth.[20] It made that finding after it recorded evidence the applicant gave in response to the Tribunal’s questions about her intentions when she came to Australia, about why the applicant did not return to China when she discovered she was unlawful, and about her previous marriage. The Tribunal referred to the applicant’s having claimed she came to Australia to do some sightseeing, but having given evasive evidence about what sightseeing she had done;[21] and to the applicant’s claiming she intended to study English, but not making any enquiries about the English language courses or schools in which she would be able to study, and giving evasive evidence about her engagement of a migration agent to lodge her student visa application.[22] The Tribunal also recorded it put to the applicant that the sole reason she married the sponsor was to remain in Australia, but the applicant denied this; and that the Tribunal made the same suggestion to the sponsor who said he was 100% certain the applicant did not marry him solely for the purpose of remaining in Australia.[23]
[20] CB158, [47]
[21] CB157, [35]-[39]
[22] CB158, [40]
[23] CB158, [45]-[47]
The Tribunal concluded that, having considered all the evidence and weighed each of the aspects of the parties’ relationship, it was not satisfied the parties have a mutual commitment to a shared life together as husband and wife to the exclusion of others; or that their relationship is genuine and continuing. And although the Tribunal accepted the parties currently live together, it was not satisfied they will continue to do so if the applicant is granted a visa.[24]
[24] CB159, [49]
The Tribunal next considered whether the applicant satisfied criterion 3001 and, if not, whether there were any compelling reasons for not applying that criterion. The Tribunal found the applicant did not satisfy criterion 3001, and was not satisfied there were compelling reasons for not applying that criterion.[25]
[25] This aspect of the Tribunal’s reasons is not challenged. However, one of the grounds on which the applicant relied as a compelling reason for not applying that criterion was her marriage to the sponsor. The Tribunal relied on its findings about the genuineness of the applicant’s relationship in considering whether there are compelling reasons not to apply criterion 3001.
Ground 1
The application contains two grounds of review. The first is as follows (errors in original):
The Tribunal failed to comply with s 359A of the Migration Act 1958 in relation to each following piece of information provided by the sponsor to the Tribunal:
a)that the sponsor did not know that the applicant had an income from China.
b)that the sponsor was unaware of the applicant’s activities during the period she spent in Australia before he met her; and
c)that the applicant had not told the sponsor details of her Immigration history.
In short, ground 1 claims that each of the items of information it identifies was “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review” within the meaning of s.359A(1) of the Act. If that claim is correct, s.359A(1) would have applied to require the Tribunal to give “clear particulars” of each item of information, and to “ensure, as far as is reasonably practicable”, that the applicant understood why the information was relevant to the Tribunal’s review, and the consequences of it being relied on in affirming the decision under review.
It is not in dispute that information to the effect of each of the items of information described in ground 1 (items of information) was conveyed during the hearing before the Tribunal;[26] that in its reasons the Tribunal relied on that information;[27] and the Tribunal did not “ensure, as far as is reasonably practicable”, that the applicant understood why each of the items of information was relevant to the Tribunal’s review, and the consequences of it being relied on in affirming the decision under review. What is in issue is whether any of the three items of information was “information . . . that would be the reason, or part of the reason, for affirming the decision that is under review” within the meaning of s.359A(1) of the Act. More particularly, the dispute between the parties is whether any of the three items of information was “information” within the meaning of s.359A of the Act. Before I set out the parties’ submissions, it will be necessary to refer to what has been said about the meaning of “information” as that word is used in s.359A of the Act and in the equivalent provision contained in s.424A of the Act.
[26] A transcript of the hearing is in evidence, being an annexure to the affidavit of Winnie David made on 20 July 2017. Item (a) of the information is at TT38:31-29:9; item (b) is at T30:25-31:10; and item (c) is at T25:30-26:7 andT27:16-23.
[27] The Tribunal referred to items (a) and (b), of the information at paragraphs 25 and 47 of its reasons, and referred item (c) of the information also at paragraph 47 of its reasons.
Principles
The word “information”, as used in s.424A(1) of the Act, “refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal . . . irrespective of whether it is reliable or has a sound factual basis”;[28] but it does “not encompass the tribunal’s subjective appraisals, thought processes or determinations”. Nor “does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps”.[29] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[30]
[28] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24]
[29] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24] quoted with approval by the High Court in SZBYR v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at 616 ([18]).
[30] SZBYR v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at 616 ([18])
A formulation that is often applied to determine whether any given information is “information” to which s.424A(1) (and, therefore, s.359A) of the Act applies, is that provided by the High Court in SZBYR v Minister for Immigration and Citizenship.[31] In that case the High Court held that portions of a statutory declaration did not constitute “information” for the purposes of s.424A(1) of the Act because they “did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”.[32] And in Minister for Immigration and Citizenship v SZLFX, the High Court said that for s.424A(1)(a) of the Act to be engaged “the material in question should in its terms contain a “rejection, denial or undermining” of the review applicant’s claim to be a refugee”.[33]
[31] (2007) 235 ALR 609
[32] (2007) 235 ALR 609 at page 615 ([17])
[33] (2009) 238 CLR 507 at page 513 ([22])
What the High Court said in SZBYR and SZLFX must now be considered in the light of the plurality’s judgment in Plaintiff M174/2016 v Minister for Immigration and Border Protection. That case concerned s.57(1) of the Act which includes the expression “information . . .that would be the reason, or part of the reason, for . . . refusing to grant a visa”. The plurality accepted, or at least assumed, that the meaning that had been given in SZBYR and SZLFX to the expression “information” was correct; and the plurality expanded on that meaning in the emphasised portion of the following passage (reference omitted):[34]
Section 57 is also located within subdiv AB. The section deals with “relevant information”. Section 57(1) defines that term, subject to an immaterial exclusion, to mean information that the Minister considers meets three conditions. The first condition is relevantly that the information “would be the reason, or part of the reason … for refusing to grant a visa”. Whether or not that condition is met, it has been held in this Court in respect of a materially identical provision, “is to be determined in advance – and independently – of the [Minister's] particular reasoning on the facts of the case”. For the condition to be met, it has again been held in this Court in respect of a materially identical provision, the information in question “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant's claim”. That is to say, the information must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the visa. The Court is not asked to reconsider that approach to the operation of the first condition in the present case.
[34] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174, at [9]
Also relevant is the following passage on which the Minister relies from the judgment of Heerey J in MZXBQ v Minister for Immigration and Citizenship (Minister’s emphasis):[35]
SZBYR, and in particular [17] of the majority judgment, essentially says that a court must assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal. For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa. If true, X’s statement, being “evidentiary material or documentation”, would be a reason for the Tribunal’s affirming the refusal of a visa. It would “undermine” his claims to have well-founded fear of persecution by reason of religion. By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant’s credibility. If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal’s attention. This assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons.
[35] [2008] FCA 319, at [27]
Parties’ submissions
In his written submissions counsel for the applicant submits that each of the items of information was evidential material, and each item was clearly a matter the Tribunal considered would undermine the applicant’s claims. In his oral submissions counsel referred to my judgment in SZQQA v Minister for Immigration & Anor, and in particular to the following passage:[36]
In my opinion, the information that is caught by s.424A of the Act is “evidentiary material or documentation” which the Tribunal provisionally considers to be the reason or a part of the reason for affirming the decision under review. Thus, it must be evidence on the basis of which it is open to the Tribunal to conclude that it contradicts or undermines an essential element of an applicant’s claim for protection, or evidence in combination with other evidentiary material on the basis of which it is open to the Tribunal to find a fact which by itself contradicts or undermines an essential element of an applicant’s claim for protection.
[36] [2014] FCCA 1923 at [14]
Counsel for the applicant also referred to the passage from the judgment of the plurality in Plaintiff M174/2016, submitting that the expression “in its terms” stresses the need for information to be significant. Finally, counsel for the applicant relied on the judgment of Judge Barnes in Kanagul v Minister for Immigration & Anor.[37] That case concerned two items of information relevant to whether there was a spousal relationship, one being an agreement between the parties under which the sponsor and the husband agreed that property that belonged to the sponsor would remain her property, and the second being evidence the sponsor gave at the hearing that she would not be assisting her husband with his job applications if he were to move to Queensland. Her Honour concluded that both items of information constituted evidence that could indicate a less than genuine commitment to the marriage and that, in this sense, it constituted information that on its face undermined the husband’s claim he was in a genuine spousal relationship wither the sponsor. Counsel submitted that the relevance of information identified in the particulars to ground 1 to whether the applicant and sponsor in the case before me are in a genuine spousal relation is similar to the relevance Judge Barnes attached to the information in Kanagul.
[37] [2014] FCCA 1219
Counsel for the Minister, on the other hand, in his written submissions submits that none of the items of information in its terms contains a rejection, denial, or undermining of the applicant’s case. As to item (a) of the information, counsel submits that the fact the sponsor did not know the applicant had income from China, or that the couple otherwise did not talk about money, did not mean that it is not possible for the applicant to establish that her relationship with the sponsor was genuine; in other words, it would not be a “reason for affirming the decision under review”. The information was relevant to the credibility of the applicant, but it was not of “dispositive relevance” to the applicant’s claims and, for that reason, was not “information” in the relevant sense.[38] The other two items of information were also not of “dispositive relevance” to the applicant’s claims.
[38] First Respondent’s Outline of Submissions, [14]
In his oral address counsel for the Minister submitted that the language of s.359A(1) of the Act does not apply to information that might be relevant to the decision, or unhelpful to an applicant’s claims, or which might form part of a chain of reasoning deployed by the Tribunal that leads to an adverse determination; the information to which the subsection applies “must strike at the heart of” the visa application. The information must be “dispositive”. Counsel submitted that the inclusion of the words “part of the reason” in s.359A(1) of the Act takes into account circumstances where there might be more than one dispositive reason for affirming a decision.
Issues
From these submissions a number of questions arise. One set of questions concerns the proper construction of the expression “information . . . that the Tribunal considers would be the reason or part of the reason, for affirming the decision that is under review”. To what kind of information does s.359A(1) apply? Must the information be, as counsel for the Minister submits, information the Tribunal would consider to be “dispositive”? If that question is answered in the negative, what character must information possess to attract s.359A(1) of the Act? Do any of the three items of information described in ground 1 possess that character?
Required character of “information”
It is the case that in MZXBQ Heerey J said that information has to have “dispositive relevance” before s.424A can apply. There are, however, a number of observations that may be made about what Heerey J said.
a)First, the requirement that information be “dispositive” sits uncomfortably with the language of s.359A(1), and in particular the expression “would be the reason or part of the reason” (emphasis added). That s.359A and 424A of the Act contemplate that information may be the reason or part of the reason for the Tribunal’s affirming the decision under review implies that the information by itself need not be dispositive. It need only be part of a reason that is dispositive. I do not therefore accept the submission counsel for the Minister made that “part of the reason” applies to where the Tribunal relies on two or more reasons for affirming the decision under review.
b)Second, there are classes of decision where no one matter is capable of being dispositive because the decision depends on the Tribunal taking into account and weighing a number of matters. That is the case with the decision the Tribunal was required to make in the case before me. It was required to determine whether the applicant and the spouse were in a “married relationship”; and the answer to that question depended on the Tribunal considering and weighing whether the applicant and sponsor have a mutual commitment to a shared life and wife to the exclusion of other, whether their relationship is genuine and continuing, and whether they live together; and in considering these matters the Tribunal was required to consider the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other. If, therefore, as counsel for the Minister contends s.359A and 424A apply only to information that is dispositive, s.359A of the Act would be incapable of applying to decisions like the one that is the subject of the proceeding before me.
c)Third, in explicating the meaning of “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant's claim”, the plurality in Plaintiff M174/2016 did not use the words “dispositive relevance”; the plurality explained the passage as applying to information to which the decision-maker attached such significance as to lead him or her to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the visa.
In my opinion, the character any given item of information must have before s.359A or s.424A of the Act can apply to it is that described by the plurality in Plaintiff M174/2016. It must be information to which the Tribunal attached such significance as to have led it to consider in advance of its reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for affirming the decision under review.
Did s.359A apply to any of the three items of information?
There are two classes of evidence that are relevant to determining whether the Tribunal considered in advance of its reasoning on the facts of the case that any of the three items of information would, as distinct from might, be the reason, or part of the reason, for affirming the decision under review. The first is the conveying of the information by the sponsor during the hearing in response to the Tribunal’s questions. The extracts from the transcript of the hearing recording the information are reproduced in the Minister’s written submissions.[39] The second item of evidence is the Tribunal’s reasons; and in particular:
a)As to item (a) of the information, the Tribunal recorded: “The sponsor told the tribunal that he paid all the household bills and was not aware that the applicant received any income at all apart from what he provided her”.[40]
b)As to item (b) of the information, the Tribunal recorded: “the sponsor was also unaware of the applicant’s activities during the period she spent in Australia before he met her”.
c)As to item (c) of the information, the Tribunal said: “the sponsor told the Tribunal that the applicant had not told him the details about her immigration history”.[41]
[39] First Respondent’s Outline of Submissions, [13], [15], and [17]
[40] CB156, [25]
[41] CB158, [47]
There is nothing in the transcript which records the conveying of any of the items of information that suggests the Tribunal, at least at that stage, considered that any of the three items of information would, or even might, be the reason, or part of the reason, for affirming the decision of review in advance of its reasoning on the facts in the case. As for the information recorded in the Tribunal’s reasons, although the Tribunal relied on the information, it cannot be inferred that in advance of its reasoning on the facts as set out in its reasons for decision the Tribunal came to consider that any of the three items of information would be the reason or part of the reason for affirming the delegate’s decision. Further, assuming that the Tribunal did rely on that information in advance of its reasoning on the facts of the case, none of the items of information can be characterised as information the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision.
For these reasons ground 1 fails.
Ground 2
Ground 2 is as follows:
The decision of the Tribunal is affected by apprehended bias.
Particulars
The conduct of the hearing by the Tribunal was such that 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 member may not have brought an impartial mind to the assessment of the applicant’s credibility. In particular, the Member expressed strong preconceived views – including that the applicant was working in Australia rather than on holiday, that she married her first person to try and get American residency, and that the applicant’s place was back in China with her 2 year old son. The Tribunal member also made comments suggesting to the sponsor that the applicant was deceiving him to achieve residence. At the end of the hearing, and before the evidence is complete, the Tribunal states that the applicant should have applied offshore.
Before I set out the parties’ submissions it would be convenient to set out some principles.
Principles
I identified in SZSNU v Minister for Immigration & Anor[42] some of the principles that a court must consider when it is claimed that the Tribunal has conducted itself so as to give rise to a reasonable apprehension of bias; and I will not repeat here everything I said in that case, other than the following.
[42] [2013] FCCA 1219
First, there is a rule, known as the apprehension of bias principle, which prohibits the Tribunal from conducting itself in a way that gives rise to an appearance of bias.
Second, there will be an appearance of bias if a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application the Tribunal is required to review. While the fictional observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular Tribunal member, the reasonableness of the apprehension is to be considered in the context of the statutorily mandated functions and procedures of the Tribunal.
Third, the words “fair-minded”, as used in the formulation of the apprehension of bias principle, “should be recognized for the central part they play in the assessment” of whether the principle has been breached.[43]
It is, in the end, an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power. [44]
[43] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2] (Allsop CJ)
[44] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 [2013] FCAFC 80 at [3] (Allsop CJ)
Fourth, there are a number of principles that may need to be borne in mind when considering whether the Tribunal in any given case failed to comply with the apprehension of bias principle. These include the following:[45]
a)“[r]obust and forthright testing of the appellant’s claims by the Tribunal . . . does not sustain a finding of apprehended bias”;[46]
b)although the Tribunal is not required to continually disclose its reasoning, “it should be recognised that the proper expression of tentative views by an administrative decision-maker may actually enhance the fairness of the administrative process by alerting a claimant to perceived deficiencies in the claim being made and affording an opportunity to the claimant to address those perceived deficiencies”;[47]
c)the difficulty in any given case “is to identify those cases in which a decision-maker is expressing tentative views . . . . as opposed 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”;[48] and
d)ultimately all cases where a reviewing court has to determine whether the Tribunal’s conduct gives rise to an apprehension of bias involves the striking of a balance “between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration. An initial assessment that claims lack substance may prove to be ultimately well-founded; equally, however, there remain cases where an initial assessment may prove to be ill-founded and misconceived”.[49]
[45] These principles are stated or referred to by Flick J in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.
[46] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [24] being a quote from the reasons of judgment of Barker J in SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17]
[47] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [27]
[48] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [27]
[49] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [33]
Parties’ submissions
In his written submissions counsel for the applicant identifies the relevant passages from the transcript the applicant submits manifests the strong preconceived views alleged in the particulars to ground 2. In addition, counsel made the additional claim that in the conduct of the hearing the Tribunal member made it clear that she had taken a firm view that the applicant was not genuine, and the applicant was trying to abuse the migration system through a marriage of convenience; and that the Tribunal member “constantly challenged the applicant’s truthfulness, and conducted the hearing in an overbearing manner”.[50] In his oral address, counsel further submitted that not only did the Tribunal express firmly held views, but the Tribunal did so persistently throughout the course of the hearing. Counsel for the Minister, on the other hand, in effect submitted the Tribunal went no further than putting to the applicant concerns it had about the applicant’s evidence for the purpose of providing the applicant an opportunity to deal with those concerns; and that the evidence does not support a finding that the Tribunal was so committed to a conclusion formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may have been presented.
[50] Applicant’s Submissions, [13]
It is true the Tribunal put matters to the applicant in a forthright manner. That is particularly so where the Tribunal said:[51]
Let me just put this to you. I don’t think you were .. (not transcribable) .. by an agent. I don’t think you approached an agent. I don’t think you attempted to apply for another kind of visa. I think you came to Australia with a full attention [sic] of reaming [sic] here unlawfully or otherwise until you could find a way of staying. Can I get a response to this?
[51] T16:21-25
This, however, must be seen in the context of what occurred next. The applicant simply responded: “No I didn’t”. The Tribunal, however, did not leave the matter there. It said:[52]
That’s all you want to say? It’s very important that I get a response from you about this because on what the response is if I form a view that this account has been untruthful then I will probably affirm this decision because I think that you – I will have formed a view that you did come here with the intention of staying permanently.
[52] T16:25-30
This indicates the Tribunal was not committed to finding the applicant had visited Australia with the intention of staying permanently. The Tribunal in terms indicated to the applicant that whether or not the Tribunal would so find would depend on what the applicant had to say about whether that was her intention. Viewed alone, or in the context of the hearing as a whole, I am not satisfied a fair-minded person would reasonably apprehend the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application the Tribunal was required to review.
I am not satisfied that any of the other matters on which the applicant relies manifest any conduct by the Tribunal which might indicate to a fair-minded person the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the applicant’s case. First, the applicant submits the Tribunal expressed the preconceived view that the applicant was working in Australia rather than on holiday.[53] That is not supported by the questions the Tribunal asked on which the applicant relies. The Tribunal asked: “Doing what? Working?”[54] By itself, a question does not imply a preconceived view. The Tribunal was seeking information, These questions were asked after a series of questions about what the applicant did in Australia for three months.
[53] Applicant’s Submissions, [14].
[54] T14:22
Second, the applicant submits the Tribunal expressed the preconceived view that she married the first husband to try to get American residency.[55] That is not supported by the questions the Tribunal asked on which the applicant relies.[56] The Tribunal asked: “Why did you get married? Did you get married just to get a visa to go to America?” As I have already noted, by itself asking a question does not imply a preconceived view. The Tribunal was seeking information. Further, the Tribunal sought that information in the context of answers the applicant gave about that marriage where the applicant said she did not love her previous husband; and the applicant said she and her husband had spent one week together but they could not get on with each other.
[55] Applicant’s Submissions, [14]
[56] T19:8-9
Third, the applicant submits the Tribunal made some comments suggesting to the sponsor that the applicant was deceiving him to achieve residence.[57] That, too, is not supported by the statement the Tribunal made on which the applicant relies.[58] The Tribunal said “Because there are a great many people who would like to come to Australia and use any means to do so, and completely – including deceiving people, into marrying them”.[59] The Tribunal said this in response to the sponsor stating he had difficulty understanding being questioned “about our honesty and our love”;[60] and the comment was not specifically directed to the applicant.
[57] Applicant’s Submissions, [14]
[58] T19:8-9
[59] T26:17
[60] T26:15
Fourth, the applicant submits that, when questioning the sponsor, it put to the sponsor an inaccurate account of the applicant’s evidence about her intention to stay in Australia, stating that the applicant’s evidence was that she wanted to stay in Australia.[61] The applicant submits this gave the appearance the Tribunal was not open to persuasion, and was inattentive to the applicant’s testimony.[62] There are two matters to note about this submission. First, that the Tribunal may have misunderstood the applicant’s evidence would not by itself lead a fair-minded observer to form the view the Tribunal might not bring an impartial and unprejudiced mind to the applicant’s case. Second, the applicant’s submissions assumes the Tribunal purported to put to the applicant the effect of the applicant’s testimony. That is not correct. The Tribunal put to the sponsor a proposition for his comment, which was to the effect that the applicant did not want to go back to China because she wants to stay in Australia. The sponsor accepted that proposition, but said that the applicant wanted to stay in Australia for the sponsor.
[61] Applicant’s Submissions, [15], [16]
[62] Applicant’s Submissions, [17]
Fifth, in oral address, counsel for the applicant submitted the Tribunal, in its reasons, incorrectly said the delegate had formed the view the parties were not in a genuine, ongoing, or exclusive relationship, as envisaged by the Act,[63] and that the delegate had formed the view that the “rapid inception and short duration of the parties’ relationship pointed to the applicant’s deliberate manipulation of Australia’s migration program for the sole, purpose of remaining in Australia”.[64] In assessing this claim, it will be necessary to set out what the delegate did find; and here there are two relevant findings. The first is that the delegate found that the applicant’s overstaying her visa and applying for a bridging visa E extension “allowed you to delay your departure from Australia until you could enter into a spousal partner relationship and lodge an onshore application on this basis”.[65] The second finding is the finding I have set out in paragraph 8 of these reasons.
[63] CB154, [3]
[64] CB155, [13]
[65] CB67
There are two matters to note about this part of the applicant’s case. First, it is true the Tribunal was incorrect in stating in its reasons that the delegate had found the applicant and sponsor were not in a genuine relationship. At the hearing, however, the Tribunal noted that although the delegate did not make a finding about the genuineness of the applicant’s and spousal’s relationship, “he came to a preliminary view that he did not believe that it was a genuine relationship”, and that “he felt it was contrive[d] for the purpose of achieving migration”.[66] That is not an unreasonable characterisation of the delegate’s two findings. Second, even if the Tribunal’s characterisation of the delegate’s findings is incorrect, that by itself would not lead a fair-minded observer to form the view the Tribunal might not bring an impartial and unprejudiced mind to the applicant’s case.
[66] T2:23
Sixth, the applicant submits the Tribunal expressed the preconceived view that the applicant’s place was back in China with her 2 year old son.[67] That statement is said to be reflected in the questions the Tribunal asked after the applicant said she did not wish to make an offshore application because she did not wish to leave the sponsor. The Tribunal asked: “For three months, and yet you’re quite capable of leaving your two year old son for several years? What is different?” I do not accept by these questions the Tribunal implied it was of the view the applicant’s place was in China. The point of the questions was to test the applicant’s statement that she did not return to China to apply for a visa because of her attachment to her husband in circumstances where what could reasonably be considered to be a competing and stronger attachment did not lead the applicant to remain in China. The Tribunal’s question would not have led a fair-minded observer to form the view the Tribunal might not bring an impartial and unprejudiced mind to the applicant’s case.
[67] Particulars to ground 2
Finally, the applicant submits the Tribunal expressed the view to the sponsor that the applicant ought to have applied offshore, and this reflected a closed view. It is not clear how the applicant submits this statement, either considered alone, or together with other matters, might lead a fair-minded lay person reasonably to apprehend the Tribunal might not bring an impartial and unprejudiced mind to determine application the Tribunal is required to review in circumstances where, given that criterion 3001(2)(c) of Schedule 3 to the Regulations required that an onshore application had to be made no more than 28 days after the last substantive visa had ended, and there was no issue that the applicant did not comply with the criterion.
I am not satisfied that any of the matters on which the applicant relies, considered alone or together, would lead a fair-minded observer to form the view the Tribunal might not bring an impartial and unprejudiced mind to the applicant’s case. Ground 2, therefore, also fails.
Disposition
The applicant has not succeeded on either of the grounds on which she relies. I therefore propose to order that the application be dismissed. I will consider the question of costs when I pronounce my order dismissing the application.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 15 August 2019
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