Maddy v Minister for Immigration

[2006] FMCA 722

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MADDY v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 722

MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal failed to comply with s.359A of the Migration Act – effect of s.357A – whether Tribunal failed to act ‘judicially’ – whether no evidence – whether actual or apprehended bias.

Migration Act 1958 (Cth), ss.357A, 359A
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

Abebe v Commonwealth (1999) 197 CLR 510
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Gaslight Company v Valuer-General (1940) 40 SR (NSW) 126
Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 1087
Gauthiez v Minister for Immigration & Multicultural & Indigenous Affairs (1994) 53 FCR 512
Hill v Green (1999) 48 NSWLR 161
Hope v Bathurst City Council (1980) 144 CLR 189
Koitaki Para Rubber Estates Limited v Federal Commissioner of Taxation (1941) 64 CLR 241
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Minister Administering the Crown Lands Act v Deerubbin LALC (1998) 43 NSWLR 249
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairsv Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v WAFJ [2004] 203 ALR 581
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590
NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264
NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 57
NAEH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 927
NAEH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 28
NANL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 277
Ozmanian v Minister for Immigration & Local Government & Ethnic Affairs (1996) 137 ALR 103
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Refugee Review Tribunal; Ex part H (2001) 179 ALR 425
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988
Sinclair v Maryborough Mining Warden (1975) 132 CLR 473
Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1679
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71
SZEEUv Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Television Capricornia v Australian Broadcasting Tribunal (1986) 13 FCR 511
Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 822
VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 23
VXDC v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 146 FCR 562
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568
White v Minister for Immigration & Multicultural Affairs [2000] FCA 232
Win v Minister for Immigration & Multicultural Affairs [2001] FCA 56
Yates and Property Corporation Pty Limited (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156
Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885

Applicant: MATTHEW MADDY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG209 of 2004

Judgment of: Barnes FM

Hearing date: 21 March 2006

Last Submission: 7 July 2006

Delivered at: Sydney

Delivered on: 4 August 2006

REPRESENTATION

Counsel for the Applicant: Mr J. Mitchell  

Solicitors for the Applicant: Searle & Associates

Counsel for the Respondent: Mr A. McInerney

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG209 of 2004

MATTHEW MADDY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) made on 24 December 2003 affirming a decision of a delegate of the first respondent that the visa applicant Matthew Maddy was not entitled to the grant of an Other Family (Residence) (Class BU) Subclass 835 (Remaining Relative) Visa. 

2. The applicant is a national of the United Kingdom who was born on 23 October 1977.  On 30 January 2002 he applied for an Other Family (Residence) (Class BU) visa on the basis that he was the remaining relative of his father, an Australian permanent resident.  Remaining relative is defined in Regulation 1.15 of the Migration Regulations.  Regulation 1.15 was as follows at the relevant time:

   (1)An applicant for a visa is a “remaining relative” of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:

   (a)the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and

   (b)the other person is usually resident in Australia; and

   (c)if the applicant or the applicant’s spouse (if any) has an overseas near relative:

   (i)the applicant and the applicant’s spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and

   (ii)neither the applicant nor the applicant’s spouse (if any) have had contact with that relative within a reasonable period before making the application; and

   (d)the applicant and the applicant’s spouse (if any) together have not more than 3 overseas near relatives; and

   (e)     if the applicant is a child who:

   (i)has not turned 18; and

   (ii)has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas –

   at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.

   (2)    In this regulation:

   overseas near relative, in relation to an applicant, means a person who is:

   (a)a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant’s spouse (if any); or

   …

   other than a relative of that kind who:

   (c)is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (d)is usually resident in Australia.

   (3)    For the purposes of paragraphs (1)(c) and (d), an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country.

3. The applicant’s adviser stated in connection with the visa application that the applicant’s parents and younger siblings lived in Australia as permanent residents and claimed that his other brother, Christopher, had resided in Germany since 1999.  It was claimed that, due to a falling out, Matthew and Christopher Maddy had not had contact for at least the last three years.  At the request of a delegate of the first respondent, further information was provided, including a letter from the British Army dated 12 June 2002 which confirmed that Christopher Maddy had been a serving member of the British Forces since June 1999 who had been stationed in Osnabruck, Germany from April 2000, that his tour was due to end in April 2003 but that he had applied to extend a further 6 months. 

4. The application was refused on the basis that the applicant resided in the same country (the United Kingdom) as his brother Christopher.

5. The applicant sought review by the Tribunal by application lodged on 24 July 2002. In his review application he claimed that the decision-maker had erred in finding that his last overseas near relative (his brother Christopher Maddy) was resident in the United Kingdom rather than in Germany. On 11 July 2003 the Tribunal wrote to the applicant under ss.359 and 359A of the Migration Act 1958 (Cth) (the Act). The applicant was invited to comment in writing on information that his brother may be usually resident in the United Kingdom and that when visiting Australia in 2001 Christopher Maddy had declared on arrival that England was his country of residence. The applicant was also invited to provide additional information, including evidence and information about the current residence of his brother and information from the British Army indicating his brother’s service history, postings and deployments.

6. The applicant’s advisor responded by letter of 15 August 2003, enclosing a letter dated 14 August 2003 from Christopher Maddy that provided information about his postings from 1999 on.  He stated that he had served in the British Army for over four years, the majority of which has been in Germany, that he intended to serve for the full 22 years and had nominated that he wished to remain posted in Germany and did not want to return to England at all.  He stated that should he for any reason have to leave the army permanently he would not return to reside in the United Kingdom.  Mr Maddy acknowledged that when he visited Australia in 2001 he had stated that his country of residence was England, but explained that at that time he had been in Germany for only a few months and still considered the UK to be his country of residence.  However, he claimed that on entering Australia in August 2003, he had declared his country of residence as Germany because it had been his residence for the previous three years, that he now had no ties in England or any residential address there, and that he had been unable to obtain credit or finance from British institutions due to his not having a United Kingdom address. 

7. The applicant attended a Tribunal hearing on 22 September 2003 together with his parents and a legal representative.  The transcript of the Tribunal hearing is before the Court and is considered further below.

8. In a post-hearing written submission of 9 October 2003 the solicitors for the applicant addressed issues arising under subregulation 1.15(3), in particular the country in which Christopher Maddy resided and whether the applicant had had contact with his brother within a reasonable period before making the visa application.

The Tribunal decision

1. On 24 December 2003 the Tribunal affirmed the decision under review and found that the applicant was not entitled to the grant of a Class BU visa.

2. The Tribunal stated that the onus was on the visa applicant to satisfy it that the elements of the definition of remaining relative in Regulation 1.15 of the Migration Regulations were met.  (See Regulation 1.15(1) which requires the applicant to satisfy the Minister (and hence the Tribunal) of the listed requirements).  The Tribunal was satisfied that the visa applicant had a relative (his father) who was an Australian citizen or permanent resident usually resident in Australia (paras 1.15(1)(a) and (b)). 

3. The criteria in issue before the Tribunal were the requirements in paragraph 1.15(1)(c) of Regulation 1.15, that if the visa applicant has an overseas near relative then the visa applicant must “usually reside” in a country different to the country in which that overseas near relative resides (subpara 1.15(1)(c)(i)) and must not have had contact with that near relative within a reasonable period before making the application (subpara 1.15(1)(c)(i)). 

4. The Tribunal found that Matthew Maddy had an overseas near relative, his brother Christopher Maddy.  In determining whether the applicant usually resided in a country not being Australia that was a different to the country in which his brother resided at the time of the application (30 January 2002) and, if so, at the time of decision, the Tribunal considered first where Matthew Maddy was usually resident at the time of application and decision.  (See clauses 835.212 and 835.221 in Part 835 of Schedule 2 to the Migration Regulations). 

5. The Tribunal cited authorities to the effect that there are two elements that must be present to find that a person is “usually resident”, a physical presence in a particular place and an intention to treat that place as home for at least the time being, but not necessarily forever (see Gauthiez v Minister for Immigration & Multicultural & Indigenous Affairs (1994) 53 FCR 512 and Koitaki Para Rubber Estates Limited v Federal Commissioner of Taxation (1941) 64 CLR 241). It referred to the relevance of factors such as a person’s length of physical residence in a particular country, whether the residence was lawful, the degree to which a person had established a home in a particular country and his or her intention to make a particular country his or her usual home.

6. The Tribunal observed that it had not been claimed that Matthew Maddy was usually resident in any country other than the United Kingdom.  On the evidence before it, the Tribunal was satisfied that he was usually resident in the United Kingdom at the time of application (and at the time of decision). 

7. The Tribunal then considered where Christopher Maddy resided.  It referred to subregulation 1.15(3) which provides that an overseas near relative is taken to reside in his last known country of residence unless the applicant satisfies the Minister that the relative resides in another country.  Consistent with policy, in considering where Christopher Maddy resided the Tribunal took into account his residence and employment history.   It set out a chronology from 1996 relating to both residence and the issue of contact under subpara 1.15(1)(c)(ii) based on evidence and the ‘facts’ provided in the post-hearing written submission from the applicant.

8. It set out information on where both Christopher and Mathew Maddy had lived at various times, detailed Christopher Maddy’s study and employment history, referred to the 1998 migration application of the nominator (and the different claims subsequently made about where one of the brothers had lived at that time) and the fact that each brother gave the same address in separate 1999 withdrawals from their father’s migration application.  The Tribunal described Christopher Maddy’s postings with the British Army in Germany and elsewhere, his July 2001 declaration as to residence in England and his posting to Cyprus in November 2003. 

9. The Tribunal considered submissions of the applicant in relation to the notions “usually resides” and “resides”.   It was of the view that subregulation 1.15(3) was not limited to circumstances where the relative’s current whereabouts were unknown.  It found that this regulation indicated that the applicant needed to satisfy it that his brother did not reside in the UK (which was said to be Christopher Maddy’s last declared place of residence in any documents before the Tribunal). 

10. While the Tribunal accepted that citizenship and residence were distinct concepts, in the particular case before it, it found that the nationality of Christopher Maddy’s employer and the country in which he paid income tax were relevant as they went to the occupation, ‘residency’ and ‘intention’ being claimed by him.  The Tribunal suggested that a distinction needed to be drawn between a normal employer/employee relationship and what it described as the “all encompassing relationship” between a soldier and the British Army. 

11. The Tribunal indicated that at the hearing it had canvassed a number of possibilities about the status of a soldier in the British Army stationed at a British base in Germany that had not been resolved (for example whether the British base may have been deemed British soil or whether Christopher Maddy had special status in Germany under an international agreement (a Status of Forces Agreement)).  In the absence of submissions on these points the Tribunal proceeded on the basis that the Osnabruck base was a part of German territory. 

12. The Tribunal stated that there was an outstanding issue as to exactly what the status and conditions (such as tax status and application of local laws) were of British personnel on the Osnabruck base.  The Tribunal member referred to her understanding of the status of “visiting” Australian miliary personnel and found that, whatever the status of the Osnabruck base, it was a “well-known historical fact” that British bases in Cyprus (where Christopher Maddy was posted from November 2003 for a minimum of 2 years) were British sovereign territory.  Hence the Tribunal found that, even if its reasoning was flawed in relation to Christopher Maddy’s residency in Germany, at the time of decision (24 December 2003) the applicant’s brother was “again working (and possibly living) in UK sovereign territory.” 

13. The Tribunal stated that it had concerns that although Christopher Maddy may have been physically present in Germany, he did not have the ‘intent’ to make it his home.  It referred to his July 2001 declaration that Germany was not his place of residence (although he had been physically there for 16 months at that time).  It noted that in June 2002 he had requested a further six months posting to Germany (to November 2003). 

14. The Tribunal found that there was no evidence before it as to Christopher Maddy’s intention at the time of the visa application

    
    

    (30 January 2002).  The only evidence as to ‘intent’ was said to be that stated in Christopher Maddy’s letter 17 months later (in August 2003) when he expressed a desire and intent to remain in Germany and claimed that he would not return to the UK and had no ties there.  However the Tribunal found that at the time of decision the desire and intention of Christopher Maddy to remain in Germany had not been followed by the British Army, which could direct him to go to various places.  It drew a distinction between the military and another employer in this respect, stating that it was “well known” that the wishes of a member of the military were not the prime factor in such decisions as “The needs of the military come first”. 

15. The Tribunal found that Christopher Maddy’s military history illustrated these points, noting that “although he wanted to stay in Germany he has now been posted to Cyprus” and that his time in Germany had been interrupted by courses in the UK and deployments to Iraq and Oman.  The Tribunal then referred to its understanding of military practice in relation to living expenses of persons living on a military base.  It found nothing before it to suggest that the German government or British agencies considered Christopher Maddy to have been resident in Germany.  It speculated that it was highly likely that he paid tax to Britain and used a British military driving licence in Germany.  The Tribunal concluded that it was not satisfied that Christopher Maddy was resident in Germany at the time of application or at the time of decision. 

16. The Tribunal found that Christopher Maddy was resident in the United Kingdom at the time of application.  It observed that at the time of decision it was likely that he was resident in the United Kingdom as he was still a member of the British Army and, if living in barracks in Cyprus, would be residing in British sovereign territory.  However it made no finding on that point. 

1. The Tribunal found that as the visa applicant usually resided in the United Kingdom and had an overseas near relative who also resided in that country he did not satisfy subparagraph 1.15(1)(c)(i) and was not a remaining relative. 

2. In case its reasoning was flawed in relation to the residency of Christopher Maddy, the Tribunal also considered the criterion in subparagraph 1.15(1)(c)(ii) (that the applicant had not had contact with his brother within a reasonable period before making the application). 

3. The Tribunal referred to policy that “contact” within a reasonable period meant social contact within the three years preceding the application and that factors such as the reasons for the lack of conduct may be useful in assessing the genuineness of the claims.  It considered the applicant’s claims that he and his brother Christopher had had no contact since July 1996, that Christopher had moved out of the family home in 1997 – 1998, that although he and Christopher studied at the same college from September 1997 to July 1998 they had no social contact, and that when Christopher visited Australia in 2001 the applicant stayed with his aunt and uncle. 

4. The Tribunal accepted that Christopher Maddy was not living at home with his parents and siblings in 1998, but did not accept that he and the visa applicant had not had social contact since 1996 as claimed.  It referred to evidence of ongoing social contact between Christopher Maddy and other family members (particularly his parents) and concluded that, although it accepted that the applicant and his brother may not have been “the best of friends and may have issues that need to be resolved”, it:

   “has difficulty accepting that throughout the period where the visa applicant continued to reside with his parents that he did not have some form of ongoing social contact with his brother who lived nearby, occasionally stayed overnight, and utilised his parents’ home as his primary contact point.  There is nothing before the Tribunal to indicate that the visa applicant and his brother did not socialise at common events such as Christmas or to farewell their parents on their migration to Australia.

   It is for the applicant to satisfy the Tribunal that there has been no social contact within the 3 year period prior to the application.  The Tribunal is not satisfied that there has not been social contact throughout this period between the visa applicant and Christopher Maddy.

5. The Tribunal concluded that the visa applicant usually resided in the same country, the United Kingdom, as his overseas near relative Christopher Maddy and that he had had contact with his overseas near relative during a reasonable period preceding the application.  It concluded that it had no alternative but to affirm the decision under review as the visa applicant did not meet essential criteria for the grant of the visa.

6. The applicant sought review by application filed in this Court on

   
   

   28 January 2004.  He relies on a further amended application filed on 24 March 2006 as foreshadowed at the hearing of 21 March 2006.  Additional written submissions were filed after the hearing. 

Section 359A

1. The first ground relied on in the further amended application is that the Tribunal breached s.359A of the Migration Act 1958 (Cth) (the Act) by failing to provide the applicant with written particulars of information that was part of the reason for affirming the decision under review.

2. Section 359A is as follows:

   (1)  Subject to subsection (2), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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; and

   (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

   (c)  invite the applicant to comment on it.   

   (2)  The information and invitation must be given to the applicant:

   (a)  except where paragraph (b) applies – by one of the methods specified in section 379A; or

   (b)  if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.

   … … …

   (4)  This section does not apply to information:

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b) that the applicant gave for the purpose of the application; or

   (c)  that is non‑disclosable information.

3. No particulars were provided in relation to this ground in the further amended application, but in written submissions it was clarified that it was contended that part of the reason for the Tribunal’s decision was information about Christopher Maddy’s residency as a member of the British Army, which was said to be based on the Tribunal member’s recollections of personal experiences in respect of the Australian Defence Forces (particularly in Malaysia) and on speculation.  It was contended that the information in issue was as follows:

   (a) The likely status and conditions of Christopher Maddy, as a British military policeman, at the Osnabruck base in Germany.  Specifically:

   (i) the nationality of the British Army is relevant to Christopher’ residence:  CB 36.

   (ii) Christopher may have had special status in Germany under a SOFA (Status of Forces Agreement) or the Osnabruck base may be sovereign territory of the United Kingdom:  CB 37.

   (iii) Christopher would have a specific migration status, specific privileges, travel on an official passport and be subject to British laws where a SOFA applies between Britain and Germany:  CB38.

   (iv) Christopher, at the time of decision, was working (and possibly living) on a British base which is UK sovereign territory:  CB 40.

   (v) Christopher’ desire to remain in Germany is subject to the needs of the British Army:  CB 43.

   (vi) there is no evidence that the German government or British agencies consider Christopher to be a resident in Germany:  CB 44.

   (vii) it is likely that Christopher paid tax to Britain and utilised a British military driving licence whilst in Germany:  CB 44.

   (b) The practice of the Maddy family at “common events” such as Christmas and the emigration of the applicant’s parents to Australia CB 51.” [The references to “CB” are in fact references to paragraphs in the Tribunal decision]

4. In written submissions it was suggested that such information had to be provided to the applicant in writing prior to the Tribunal hearing.  It was contended that certain findings of the Tribunal were based on this information (such that the information was a part of the reason for the Tribunal decision).  First it was contended that the Tribunal’s finding that Christopher Maddy was resident in the UK at the time of the visa application, its lack of satisfaction that Christopher Maddy was a resident in Germany and its finding that it was “likely that he was resident in the United Kingdom at the time of the decision because he was a member of the British Army” were based on reasoning which included the following:

   (i) The nationality of Christopher’ brother’s employer, being the British Army, was relevant because of the “all-encompassing relationship between a soldier and the British Army”:  CB 102.  Further:

   (A)Christopher may have had special status in Germany under a Status of Forces Agreement (SOFA).  Military personnel under a SOFA generally have specific migration status and privileges, they travel on official passports and they are often subject to their own country’s laws rather than that of the sovereign country.

   (B)It was unclear to the MRT member whether Britain had rights to station their troops in Germany by virtue of a SOFA or whether the British military bases were sovereign territory of the United Kingdom.

   (C)An issue that remained outstanding was “exactly what the status and conditions are of British personnel on that base”.

   (D)No submissions were made on these points and the MRT proceeded on the basis that the military base where Christopher lived was part of Germany territory.

5. It was contended that these findings were “affected by” a breach of s.359A.

6. It was said that the information in question was also part of the reason for the Tribunal findings that it was “a well-known historical fact” that when Cyprus gained independence the British retained two military bases as British sovereign territory, that at the time of the decision Christopher Maddy was working (and possibly living) in British sovereign territory, and also that it was well-known that a member of the military may nominate posting preferences, but that the member’s wishes were not the prime factor in such military decisions as the needs of the military come first. 

7. It was contended that the generally expressed s.359A letter of 11 July 2003 did not specify with any particularity the information on which the Tribunal eventually based its reasons for affirming the decision under review. That letter simply stated that the adverse information that the Tribunal considered would be part of the reason for affirming the decision was that “your brother, Christopher Maddy, may be usually resident in the United Kingdom” (and that in 2001 he had declared England to be his country of residence). It was also submitted that the information about the likely status and conditions of Christopher Maddy as a British military policeman at the Osnabruck base was about Christopher Maddy’s residence as a member of the British Army and was not about a class of persons.

8. It was further contended that the Tribunal made a factual finding that it did not accept that the applicant and his brother had not had social contact since 1996, based on its difficulty accepting that throughout the period the applicant resided with his parents he did not have some ongoing social conduct with his brother who lived nearby, occasionally stayed at night and used his parents’ home as his primary contact point and on its finding that there was nothing before it to indicate that the applicant and his brother did not socialise at common family events. It was submitted that information about the practice of the Maddy family was subject to s.359A.

9. The applicant’s submissions referred to the fact that during the Tribunal hearing the Tribunal member had elaborated in some detail about her knowledge of the residence position of members of the military serving overseas. It was suggested that the Tribunal member had elaborated on information she considered would be part of the reason for affirming the decision. However counsel for the applicant submitted that the information that was part of the reason for affirming the decision under review should have been put to the applicant in writing prior to the hearing under s.359A.

10. It was conceded for the applicant that subjective appraisals of credibility or inconsistencies or a lack of information did not constitute information (see Win v Minister for Immigration & Multicultural Affairs [2001] FCA 56, Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 109 and Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1679) but suggested that, consistent with what had been said in Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 1087 at [21] and adopted in Singh at [16]:

    .. untested assertions communicated to, or received by, the Tribunal can constitute information irrespective of whether the information received is reliable or has a sound factual basis; thus, the section can apply when the Tribunal has received information “regardless of its source” if it considers the information would be a reason or part of the reason for affirming the delegate’s decision. 

11. It was submitted that where a Tribunal member made a finding or drew a conclusion, whilst that finding or conclusion may not in itself be information, where it was based on information, such information may form part of the reason for affirming the decision under review.  Counsel for the applicant submitted that the obligation to provide the information in question was enlivened when the Tribunal “forms the view that there is knowledge communicated about some fact or circumstance that is material to the review and is adverse to the applicant” (Carlos at [21] and Singh at [16]) and that in this case, while the information was not information provided by a third party (such as the dob-in letter considered in Singh), the Tribunal member had put forward a number of assertions not contained in the evidence before it that concerned the operations of the British and Australian military and how these affected the residency of the applicant’s brother. It was contended that the Tribunal clearly took into consideration these untested assertions in deciding the matter and that they contained information which formed part of the reason for affirming the decision of the delegate. It was suggested that it was apparent that, in the absence of further documentation from the British Army, the Tribunal relied on this information rather than simply the general information that was put to the applicant for comment in the s.359A letter of

    
    

    11 July 2003. 

12. Hence it was submitted that such information, not being a subjective appraisal of evidence before the Tribunal (as there was no evidence as to these matters before the Tribunal, see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [18] and [22]), was information to which s.359A(1) applied. In support of the proposition that the information in question did not constitute subjective appraisals of material before the Tribunal and hence fall outside the concept of “information” for the purposes of s.359A(1), reference was made to what was said by Allsop J in Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 at [95] where his Honour stated:

    … I agree with the distinction drawn by Sackville J in Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [54] that the information of which particulars must be provided is information or knowledge that has come to or been gained by the Tribunal and is not a subjective appraisal or thought process of the Tribunal. For example, as in Tin, supra, “information” does not extend to the subjective view in the mind of the Tribunal of the evidence, in that case that the applicant was “not credible” or, as here, that Mr .. appeared to give his evidence honestly. However, the distinction can become very fine. If the subjective thought processes of the Tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of para 424A(1)(b)) of information (for para 424A(1)(a)), requiring the Tribunal to give particulars of that information and to explain its relevance.

13. It was pointed out that when it applies s.359A(2) requires information to be communicated to the applicant in writing (not simply in the Tribunal hearing) in accordance with the requirements of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 and Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27. Reliance was also placed on what was said by Weinberg J in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [163] in drawing attention to the strict view that the courts have taken in relation to the breach of the rules of natural justice and suggesting that this could inform the application of the expression ‘a part of the reason’ in s.424A of (the equivalent to s.359A in relation to Refugee Review Tribunal proceedings). His Honour went on to suggest “If there is any doubt as to whether information that is adverse to an applicant did form part of the reason for decision, that doubt should generally be resolved in favour of the applicant”. 

14. Counsel for the respondent contended that the matters identified by the applicant did not constitute “information” within the meaning of s.359A(1) of the Act. It was submitted that “information” was that of which one was told or appraised; that it was knowledge communicated concerning some particular fact, subject or event and that in the context of provisions such as s.359A it had been taken to refer to knowledge of relevant facts or relevant circumstances communicated to or received by the Tribunal (see Allsop J in SZEEUv Minister for Immigration & Multicultural & Indigenous Affairs at [205]). It was submitted that, as Allsop J stated at [206] in SZEEU, information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations.

15. It was contended for the respondent that each of the matters identified by the applicant related to the Tribunal’s subjective appraisals, thought processes or determinations about the material put before the Tribunal by the applicant as part of his application for review.  It was pointed out that the proceedings before the Tribunal were inquisitorial, that the Tribunal is not in the position of a contradictor and that it is for an applicant to advance whatever evidence or argument he wished to advance in support of his contention that he was entitled to the visa (see Abebe v Commonwealth (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ).

16. In particular, counsel for the respondent contended that the manner in which the applicant’s case was put proceeded on a misconceived premise relating to the criteria about which the Tribunal needed to be satisfied. The relevant criterion in issue was whether or not the applicant satisfied both limbs of paragraph 1.15(1)(c). It was pointed out that subregulation 1.15(3) has the effect that an overseas near relative is taken or deemed to reside in his or her last-known country of residence unless the applicant satisfies the Tribunal that the relative resided in another country. As the Tribunal found in this instance, subregulation 1.15(3) meant that the applicant needed to satisfy it that his brother did not reside in the UK (which was the last declared place of residence prior to the time of the visa application in any documents before the Tribunal). It was said to be important to note that what was in issue was Christopher Maddy’s residence at the time of the application (30 January 2002). In that context the reference by the Tribunal to his last declared place of residence was a reference to the fact that in July 2001, when Christopher Maddy arrived in Australia, he declared his country of residence as being the UK on his arrival card. That information was put to the applicant in the s.359A letter of 11 July 2003. In contrast, the information in Christopher Maddy’s letter of

    
    

    14 August 2003, in which he stated that he had declared his country of residence to be Germany when entering Australia in August 2003, related to a time after the time of the application.

17. It was submitted that the arrival information provided by Christopher Maddy in July 2001 was, relevantly, the last document as to his residence before the application for the visa was made.  It was thus said to be relevant for the Tribunal to consider, given that the definition in Regulation 1.15 had to be met at the time of the visa application (and, if so, at the time of the decision).  On this basis it was contended that the critical findings of the Tribunal were its findings that it was not satisfied that the applicant’s brother was resident in Germany (as had been claimed by the applicant) “at the time of application” and that the applicant did not satisfy it that his brother was resident in a country other than the United Kingdom at the time of application. 

18. Counsel for the respondent pointed out that the Tribunal not only put the applicant on notice in the s.359A letter of its concern that the documentation indicated that his brother was resident in the United Kingdom (that being the document of July 2001) but also invited the applicant under s.359 of the Act to provide further information about his overseas near relative (in particular about his current residence and information from the British Army indicating his service history.)

1. Moreover, the information about the presence of the applicant’s brother in Germany as a member of the British Armed Forces was said to be information given to the Tribunal by the applicant in response to the s.359 letter and at the Tribunal hearing. However, given the documentation available before the time of the application indicating that the applicant’s overseas near relative was resident in the United Kingdom, the effect of subregulation 1.15(3) was that the applicant would fail unless by further information he satisfied the Tribunal that his brother’s residence was elsewhere at that time. In other words the Tribunal needed to be persuaded to make an affirmative finding that the applicant’s overseas near relative was resident outside England at the time of application (and in this case that he was resident in Germany as was contended for by the applicant). It was not so satisfied.

2. In this context, it was contended for the respondent that in outlining the matters referred to in the applicant’s written submissions, the Tribunal was addressing the question of whether it could reach a state of satisfaction that the brother was resident in Germany (as claimed) rather than the United Kingdom, based on the fact that he was in Germany as a member of the British Armed Forces.  In canvassing the possibilities and discussing the matters referred to, the Tribunal was said to be turning over in its mind the problem with which it was grappling.  Thus, for example, it considered the status of Christopher Maddy in Germany and the issue of whether the Osnabruck base was part of German territory or British territory.  As there was insufficient information before it to satisfy it that the army base was part of British territory, it proceeded on the basis that it was part of German territory.  While the Tribunal referred to various issues, such as the status of military personnel serving overseas, it was submitted that it in fact had regard to the absence of clarification of the status and conditions of British personnel at the German base in dealing with the difficulty it faced that the mere fact that Christopher Maddy was physically in Germany as a member of the British Armed Forces was not determinative as to whether he was a resident of Germany at the time of application.  Thus, each of the matters said to be “information” was in fact part of the Tribunal’s thought processes about a matter raised for its consideration by information (the fact that the applicant’s brother was in Germany as a member of the British Armed Forces) put before the Tribunal by the applicant for the purposes of the review application. 

3. In essence, it was submitted that the Tribunal’s subjective thought processes did not constitute a series of findings, but simply revealed the process of the Tribunal not reaching the requisite state of satisfaction as to the finding of fact which the applicant was urging, that is that the overseas near relative was resident in Germany at the time of the application. 

Reasoning

1. It is relevant that, as the Tribunal had found that the visa applicant was usually resident in the UK at the time of application and at the time of decision, it was for the applicant to satisfy the Tribunal that Christopher Maddy resided in a country other than the UK (‘another country’) at the time of application and, if so, at the time of decision (subreg 1.15(3)).  The Tribunal affirmed the decision of the delegate to refuse a visa on remaining relative grounds because it was not satisfied by the applicant that the criteria in paragraph 1.15(1)(c), were met.  In particular, in considering subparagraph 1.15(c)(i), as it was not satisfied by the applicant that Christopher Maddy resided in a country other than the UK, he was taken to reside in the UK at the time of application (subregulation 1.15(3)).

2. In an endeavour to satisfy this criterion the applicant had contended that Christopher Maddy resided in Germany.  The Tribunal expressed a number of reasons for its conclusion that the applicant had not satisfied it that Christopher Maddy resided in Germany (which was the country nominated as the place of residence other than the UK) at the time of application (or the time of decision). 

3. As contended by counsel for the respondent, because the applicant did not satisfy the Tribunal that Christopher Maddy resided in a country other than the UK at the time of application, it was entitled to find that Christopher Maddy was resident in the UK at the time of application.  This meant that the application could not succeed. 

4. In considering whether the applicant had satisfied it as required by Regulation 1.15, the Tribunal canvassed possibilities in relation to matters such as whether the British base at Osnabruck may have been deemed British soil or whether Christopher Maddy had special status in Germany under a SOFA.  In so doing the Tribunal did refer to its personal knowledge about the status and conditions of members of the armed forces, particularly those stationed in another country.  Such personal knowledge of factual matters may constitute “information”, although not in the manner contended for by the applicant. 

5. As Allsop J pointed out in Paul at [95] the distinction between information or knowledge on the one hand and subjective views on the other “can become very fine”.  His Honour stated:

   “If the subjective thought processes of the Tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of [the equivalent of para 359A(1)(b)] ...) of information [for the equivalent of para 359A(1)(a)] requiring the Tribunal to give particulars of information and to explain its relevance.”

6. The first item said to be information is expressed generally as “the likely status and conditions of Christopher Maddy, as a British military policeman, at the Osnabruck base in Germany”.  As expressed this ‘likelihood’ is clearly not information, but rather a reference to the Tribunal’s thought processes and appraisals of the fact of an absence of information on issues considered relevant to a determination of whether Christopher Maddy’s physical presence in Germany at the time of the visa application meant that he ‘resided’ there. 

7. The relationship between the general information about the military and the particular issue of Christopher Maddy’s residence found expression in the Tribunal’s thought processes on issues such as Christopher Maddy’s “likely status and conditions”, that he “may have had” special status, that it was “likely” he paid tax to Britain and utilised a British driver’s licence. 

8. However, reading the Tribunal reasons for decision fairly and as a whole, it is apparent that while it canvassed a number of possibilities in relation to the likely status and conditions of Christopher Maddy as a British Military policeman at the Osnabruck base in Germany, what was relevant to the Tribunal’s finding as to the residence of Christopher Maddy was in fact the absence of information in relation to issues such as his status and conditions (either consistent or inconsistent with the knowledge the Tribunal had about the military) in circumstances where Christopher Maddy’s last known country of residence (before the time of the visa application) was the UK, where the Tribunal was of the view that Christopher Maddy’s physical presence in Germany at the time of the visa application was not determinative and where there was no evidence as to his intention at the time of application.  The Tribunal consideration of these issues was, as contended by the respondent, part of its subjective thought processes and not “information”. 

9. In any event, insofar as the Tribunal’s reasoning was based on the personal knowledge of the Tribunal member about the status and conditions of members of the armed forces of one country stationed in another, the information in question was not about Christopher Maddy’s status and conditions. Even if it was “information” that was “part of the reason” for the decision, it was information about a class of persons (that is members of armed forces or members of the British army) of which Christopher Maddy was a member. Such information is outside the s.359A(1) obligation because of s.359A(4)(a).

10. The contention in item (a)(i) set out at [33] above is that “the nationality of the British Army was found relevant to Christopher’s residence” was information subject to the s.359A obligation. However this has not been established. First what the Tribunal stated was that in this particular matter the nationality of the employer was relevant to the occupation, residency and intention claimed by the overseas near relative (given the “all encompassing” relationship between a soldier and the British Army). Insofar as the information in question was information that Christopher Maddy was in the British Army, this was information given to the Tribunal by the applicant within s.359A(4)(b). The Tribunal’s view that the nationality of the British Army was relevant to the question of the residence of Christopher Maddy was part of its reasoning and consideration of the factors relevant to the concept of ‘resides’. Its underlying personal knowledge about the “all-encompassing” relationship between a soldier and the British Army was about a class of persons – those in the British Army (not specifically about Christopher Maddy’s residence as a member of the British Army) and hence was within the s.359A(4)(a) exception to s.359A(1).

11. The next item said to be information is the Tribunal’s reference to the possibilities that Christopher may have had special status in Germany under a SOFA or that the Osnabruck base may be sovereign territory of the United Kingdom (item a(ii)). However the Tribunal made it clear in its reasons for decision that these were “possibilities” canvassed at the hearing. Such ‘canvassing’ in the reaons for decision was no more than the Tribunal setting out its subjective thought processes. It made no finding as to whether Christopher Maddy had special status. It proceeded on the basis that the Osnabruck base was part of German territory. The underlying knowledge about SOFAs and the status of overseas army bases that may have led the Tribunal to canvass these possibilities (about which no positive conclusions were reached) was not part of the reason for affirming the decision. Even if it was, such underlying knowledge would be within s.359A(4)(a).

12. The ‘item’ in paragraph (a)(iii) of the matters said to constitute ‘information’ (that “Christopher would have a specific migration status, specific privileges, travel on an official passport and be subject to British laws where a SOFA applies between Britain and Germany”) is not an accurate reflection of paragraph 38 of the Tribunal decision. The Tribunal did not have regard to information that “Christopher would have” (or that he would be ‘likely’ to have) a specific migration status, travel on an official passport and be subject to British laws where a SOFA applies. The Tribunal did refer to the ‘standard procedure’ of military being subject to the ‘usual’ SOFA and to what ‘generally’ was the position as to status and privileges of the military under a SOFA. However the Tribunal was making the point that it did not have any information about exactly what the status and conditions were of British personnel on the Osnabruck base. It was not the Tribunal’s background knowledge about standard military procedures that formed part of the reason for the decision. Rather (as evidenced by its thought processes) the lack of information on the status and conditions of British personnel at Osnabruck was part of the reason the applicant had not satisfied it that Christopher Maddy resided in Germany. Such a lack of information is not within s.359A(1). Again, if that is wrong, the general factual information about what is ‘usual’ in the military would in any event fall within s.359A(4)(a).

13. As to item (a)(iv) (that Christopher at the time of decision was working (and possibly living) on a British base which was UK sovereign territory), first the Tribunal made no finding as to whether Christopher Maddy resided in the UK at the time of decision. Hence any information which informed its unresolved speculation about whether he resided in the UK at the time of decision would not be part of the reason for the decision. In any event, while the Tribunal did have regard to its personal knowledge about the status of British bases in Cyprus in finding that Chris was working (and possibly living) in UK sovereign territory at the time of decision (and hence was not resident in Germany), such information is within s.359A(4)(a). The information that at the time of decision Christopher Maddy was no longer posted in Germany, but in Cyprus, and hence was not physically present in Germany, was given to the Tribunal by the applicant and hence was within s.359A(4)(b)).

14. As to item (a)(v) (that Christopher’s desire to remain in Germany was subject to the needs of the British army), this issue is not information but rather part of the Tribunal’s appraisal of the significance of Christopher Maddy’s stated intent to reside in Germany at the time of decision in light of the information provided to it by the applicant about Christopher Maddy’s posting to Cyprus in November 2003. The Tribunal referred to the fact that it was “obvious” that the desire and intent of Chris Maddy to remain in Germany had not been followed by the British army. It then referred to its general knowledge of the military – in particular that the wishes of a member of the military were not the prime factor in postings as the needs of the military came first. It did not make a finding or rely on information in the terms put in this item. Rather it referred to general knowledge about the military which, if part of the reason and not simply thought processes, was in s.359A(4)(a).

15. Item (a)(vi) – “There is no evidence that the German government or British agencies consider Christopher to be a resident in Germany” is simply a statement about an absence of information. Such a lack of information is not within s.359A(1).

16. Item (a)(vii) (that it is likely that Christopher paid tax to Britain and utilised a British military driving licence whilst in Germany) is another example of the Tribunal thought processes in relation to the absence of information to establish that Christopher Maddy resided in Germany as claimed. The underlying general knowledge about conditions of the military on which this speculation about “likelihood” was based was not part of the reason for affirming the decision under review. If it was, such general information is within s.359A(4)(a).

17. Finally, the item in (b) at [33] above (the Maddy family practice at “common events”) is not information within s.359A(1). Rather the Tribunal relied on the absence of evidence to indicate that Matthew and Christopher Maddy did not socialise at common family events.

18. Thus, insofar as the Tribunal canvassed issues on which there was a lack of information, such canvassing was part of its subjective thought processes or appraisal of the state of the evidence. As such these “issues” did not constitute information that was the reason or part of the reason for the decision. Rather, these matters informed the Tribunal assessment of what issues there were about Christopher Maddy’s particular situation on which there might have been, but was not, information put before it by the applicant to satisfy it that Christopher Maddy was, as claimed, resident in Germany. The fact that the Tribunal also canvassed such matters at the hearing does not establish that the items relied on under this ground constitute information within s.359A. While the ground is not expressed in these terms, it is the case that the Tribunal’s thought processes and subjective appraisals of the material before it in relation to the likelihood of certain scenarios were in some respects informed by the Tribunal member’s personal knowledge of military conditions or experience in the Australian Defence Forces. However such knowledge (if it was information that was the reason or part of the reason for affirming the decision) was within s.359A(4)(a). It was not specifically about Christopher Maddy but rather about the military or the British army or military personnel generally.

19. No failure to comply with s.359A is established in the manner contended for by the applicant. Hence it is not necessary to consider the applicant’s claim that s.359A required notification to the applicant prior to the Tribunal hearing (but cf SAAP). 

Procedural fairness – natural justice hearing rule

1. Initially it was also contended for the applicant that the natural justice hearing rule applied in this case, because the application for review was made before the commencement of s.357A of the Migration Act 1958. In the course of oral submissions it was conceded by counsel for the applicant that that was not the case, the application for review having been dated 11 July 2002 and received by the Tribunal on 24 July 2002. Section 357A of the Act, which provides that the subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with, came into effect on 4 July 2002. (See the Migration Legislation Amendment (Procedural Fairness) Act 2002).  In post-hearing written submissions counsel for the applicant conceded that in light of the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62, the applicant’s submissions in respect of the natural justice hearing rule were not sustainable.

Availability of other grounds based on aspects of procedural fairness

1. In Lay Lat the Full Court stated that, apart from the common law natural justice hearing rule, other aspects of common law natural justice “such as the bias rule” were not excluded by s.357A (see Lay Lat at [67] and VXDC v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 146 FCR 562 at [27] per Heerey J). On this basis it was submitted for the applicant that the grounds that the Tribunal had not acted judicially, that there was actual or apprehended bias and that the Tribunal had made findings without evidence to support those findings could be maintained. It was submitted that the grounds of error of law and ‘acting judicially’ were separate and distinct from the natural justice hearing rule and therefore not abrogated by s.357A, being directed to the adequacy of the reasons for decision and not the procedure adopted at the MRT hearing. Hence it was submitted that these grounds were not affected by the procedural code created by s.357A: Lay Lat at [66].

2. It is clear from Lay Lat that s.357A does not exclude the so-called ‘bias rule’, which would incorporate both actual and apprehended bias, despite these concepts having been said to be aspects of procedural fairness. This is consistent with the scope of the procedural code in Division 5 of Part 5 of the Migration Act 1958 (see Re Refugee Review Tribunal, Ex parte Aala (2000) 204 CLR 82 and also see Minister for Immigration & Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23 at [28] and [57] – [58]). It is not, however, necessary to determine the extent to which aspects of common law procedural fairness other than the natural justice hearing rule may still be relied on despite s.357A, because, for the reasons given below, no jurisdictional error is established on any of the grounds contended for by the applicant.

Acting judicially

1. It was submitted that the Tribunal was required to act judicially (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 365 and WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 at [20] per Lee and Moore JJ), to carry out its decision-making function rationally and reasonably and not arbitrarily, and to make a determination based on findings or inferences of fact grounded upon probative material and logical grounds (Minister for Immigration & Multicultural Affairsv Eshetu (1999) 197 CLR 611 at [145]; WAIJ at [22]). It was submitted that the Tribunal should decide matters based on the evidence before it and that it was erroneous for the Tribunal to make decisions in respect to satisfaction of the relevant criteria based on inferences from “hunches” or “gut feelings” without there being any evidence to support those inferences, and that the making of findings and the drawing of inferences in the absence of evidence was an error of law (see ABT v Bond). 

1. In particular it was contended that the Tribunal had no evidence before it other than the Tribunal member’s own “hunches” or “gut feelings” in respect of the British Armed Forces from which to infer what were said to be factual findings that the Tribunal made:

   (a) that the applicant’s brother may have had special status in Germany under a SOFA or the Osnabruck base may be sovereign territory of the United Kingdom;

   (b) the brother would have a specific migration status, specific privileges, travel on an official passport and be subject to British laws where an SOFA applied between Britain and Germany;

   (c) The brother at the time of the decision was working (and possibly living) in a British base which was UK sovereign territory;

   (d) The brother’s desire to remain in Germany was subject to the needs of the British Army;

   (e) There was no evidence that the German government or British agencies considered the brother to be a resident in Germany;

   (f) It was likely that the brother paid tax to Britain and utilised a British military driving licence whilst in Germany.

2. It was contended that the Tribunal was not acting judicially when it required the applicant and his parents to answer questions at the hearing based on “hunches” and “gut feelings” and then made findings of fact that went to its satisfaction as to residency and social contact without there being a scintilla of evidence before the Tribunal to support those inferences.  It was submitted that such an approach did not accord the applicant procedural fairness and that hence the decision was vitiated by jurisdictional error.

3. However, as was submitted for the respondent, the applicant’s contention that the Tribunal made “factual findings” as set out above is not borne out by a close reading of the Tribunal’s decision and must fail at the threshold. The claimed ‘findings’ in (a), (b), (d) and (f) are in fact strands of the Tribunal’s thought processes, not findings of fact (and see the discussion in relation to s.359A to the actual findings of the Tribunal).

4. The Tribunal raised as possibilities, but did not decide, the matters in (a), (b) and (f).  As set out above, the Tribunal’s ‘musing’ in relation to the brother’s desire to remain in Germany being subject to the needs of the British army (item (d)) was part of its reasoning in relation to Christopher Maddy’s intention (a factor relevant to his residence) and the fact that he was not physically present in Germany at the time of decision.  Item (e) is a factually correct finding about an absence of evidence. 

5. While the Tribunal found that Christopher Maddy was working in a British base in Cyprus which was UK sovereign territory (and possibly living there) (item (c)), it cannot be said that the Tribunal reached this finding based on ‘hunches’ or ‘gut feelings’, as there was evidence put before it by the applicant as to his brother’s posting on a British base in Cyprus as well as the Tribunal’s knowledge of the status of British bases in Cyprus.  The fact that the Tribunal stated that it was a well-known historical fact that the bases were British sovereign territory retained when Cyprus gained independence indicates the evidentiary basis for this finding. 

6. In any event, insofar as the Tribunal relied on its own knowledge or personal experience to inform its view of relevant issues or to make findings about such issues, it put such matters to the applicant in the hearing.  As Branson J stated in NAEH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 927 at [13] in such circumstances “an administrative decision-maker is under no obligation to disregard his or her relevant personal experiences”.  It has not been established that the Tribunal made a determination based on ‘hunches’ or ‘gut feelings’.  It canvassed matters relevant to its failure to be affirmatively satisfied by the applicant under regulation 1.15.  Its decision has not been shown to be a decision based on “illogical or unnatural findings or inferences of fact” (WAIJ at [22]) or to be otherwise such that it failed to act judicially. No jurisdictional error is established on the basis contended for by this ground.

No evidence

1. The applicant also contended that the making of findings and drawing of inferences in the absence of evidence constituted an error of law.  This ground was elaborated upon in supplementary written submissions by each of the parties. 

2. The applicant contended that the question of whether there was any evidence of the particular facts was a question of law (see Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481 – 483; Australian Gaslight Company v Valuer-General (1940) 40 SR (NSW) 126 at 137 – 8; Hope v Bathurst City Council (1980) 144 CLR 189 and Australian Broadcasting Tribunal v Bond).  It was contended that without evidence the decision was “perverse” (Television Capricornia v Australian Broadcasting Tribunal (1986) 13 FCR 511 and ABT v Bond at 355 – 7 and 367 and also see at Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9]). Specifically it was said that the Tribunal would fall into error where there was no evidence to support its inferences, or if the facts inferred by it and supported by evidence were incapable of justifying the findings of fact based on those inferences. It was submitted that the Parliament when it enacted the Migration Act and its various amendments intended that Tribunal members make factual findings based on evidence before them and not on matters of “speculation”. (Hill v Green (1999) 48 NSWLR 161 at [72]).

3. It was said that such an error of law would be jurisdictional error if it showed that the MRT’s satisfaction or lack thereof regarding the requirements of paragraph 1.15(1)(c) of the Migration Regulations was not properly formed (Applicant S20/2002 at 124).

4. It was contended that the Tribunal had no evidence before it in respect of the British Armed Forces from which to infer certain factual findings, being the claimed (a)(ii) – (v) and (vii) findings set out in paragraph [33] above. 

5. Counsel for the respondent contended that there was a complete answer to this ground as outlined in relation to the s.359A ground. The applicant’s visa application was made on 30 January 2002. The applicant usually resided in the UK. The Tribunal found that the evidence before it established that before the application date the last known residence of the applicant’s brother was the United Kingdom as declared in his entry card to visit Australia in July 2001. Hence under subparagraph 1.15(3) it was for the applicant to establish that his overseas near relative resided in another country (which in this case he suggested was Germany) at the time of application. However the Tribunal was not so satisfied and found that the applicant’s brother resided in the UK at the time of application. It followed that the applicant failed to satisfy the criterion prescribed in Regulation 1.15(1)(c)(i) at the time of visa application. Hence the application was doomed to fail.

6. It was contended that the Court should have regard to the fact that in order to succeed the applicant must at the very least show an error of law which vitiated the operative determination (see Yates and Property Corporation Pty Limited (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177; Minister Administering the Crown Lands Act v Deerubbin LALC (1998) 43 NSWLR 249 at 254 – 255 and Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289 at [30]). It was submitted that none of the matters described in the applicant’s submissions touched upon the Tribunal’s finding of fact that at the time of the visa application the last known residence of the overseas near relative was the United Kingdom.

7. In post hearing submissions counsel for the respondent referred to the following observations in Lay Lat:

   “[71] We do not agree with the Federal Magistrate that the delegate’s obligation under s.65 was to be satisfied that the criteria stated in reg 131.214 had been met.

   [72] In VSAF, Black CJ, Sundberg and Bennett JJ pointed out at [16] – [17] that s.65 of the Act, and the decision of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274 – 275, make it clear that the section requires the decision-maker to refuse to issue a visa in the absence of a positive finding of satisfaction.

   [73] Their Honours went on to say that there are many cases which show that findings of fact are not necessarily required to support a state of non-satisfaction. For example, in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] a Full Court said that s.65 of the Act requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.

   [74] It is true that the criteria in reg 131.214 are stated in the negative.  But that does not alter the fundamental principle stated above.  The delegate was obliged to refuse the visa in light of her failure to be affirmatively satisfied that the respondent did not have a history of involvement in unacceptable business activities. 

   [75] It could not be suggested that the delegate’s conclusion was in itself irrational or capricious.  The accumulation of a very large amount of cash from activities unidentified beyond the vague description ‘border trading’ pointed strongly to a conclusion of non-satisfaction of the relevant criteria. 

   [76] Procedural fairness did not require the delegate to identify what business or investment activities were unacceptable, nor the nature of the respondent’s involvement in such activities.  In an inquisitorial process it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.” (emphasis added)

8. No error of law has been demonstrated with respect to the Tribunal’s fact-finding.  The extent to which the items relied on were factual findings of the Tribunal is discussed above.  The Tribunal’s reliance on general personal knowledge to which it referred to inform its view of relevant issues is not such as to amount to the making of inferences or findings in the absence of evidence. As submitted for the respondent it is clear that findings of fact are not necessarily required to support a state of non-satisfaction.  In the present case, having regard to regulation 1.15(3), it was for the applicant to persuade the Tribunal that the applicant’s overseas near relative did not reside in the United Kingdom at 30 January 2002 – the date of the visa application; and, if that was established, also, at 24 December 2003 – the time of the Tribunal’s decision.

9. It is apparent that in its reasons for decision the Tribunal discussed the perceived deficiencies in the evidence put forward by the  applicant in relation to the claim that his overseas near relative was resident in Germany at these dates.  The matters discussed by the Tribunal in the course of its reasons for decision that are referred to in support of the applicant’s contentions on this ground were in fact the product of the Tribunal’s thought processes in coming to grips with the inadequacy of the evidence put forward by the applicant to persuade the Tribunal that the applicant’s overseas near relative was not resident in the United Kingdom, but was resident in Germany as at the date of the visa application and the time of the Tribunal’s decision. 

10. As the Full Court observed in Lay Lat at [76],

    “… in an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.”

11. In this case the applicant failed to put material before the Tribunal to enable it to reach the requisite state of satisfaction.  No jurisdictional error is established on this basis. 

Bias

1. The last ground relied upon by the applicant is that the decision of the Tribunal was affected by actual bias or, in the alternative, it by apprehended bias. 

2. First it was contended that what occurred in the hearing and in the Tribunal’s assessment of the applicant’s claims and evidence revealed actual bias, on the basis that the Tribunal member had a pre-existing state of mind which disabled her from undertaking or rendered her unwilling to undertake any proper evaluation of the materials before her which were relevant to the decision to be made (Minister for Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507 at [35] and [72]) in that she was so committed to a conclusion already formed incapable of alteration, whatever evidence or arguments may be presented (Jia at [71] and [72]).

3. It was acknowledged that a party alleging actual bias on a decision maker’s part carries a heavy onus and that bias must be clearly proved (Jia at 531), but was suggested that the existence of actual bias could be inferred from facts and circumstances, despite the caution that must be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the MRT member (Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [36]).

4. In the alternative it was suggested that the same matters constituted apprehended bias on the basis that a fair-minded lay observer, who was 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 might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 – 294. In support of this proposition it was pointed out that apprehended bias would be established where the fact finding of the Tribunal was conducted in a manner which was substantially unreasoned, in the nature of mere assertion that lacked rational or reasoned foundation, at times plainly and ex facie wrong, and selective of material going one way (NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 at 115).

5. It was submitted for the applicant that the Tribunal’s assessment of the applicant’s evidence demonstrated actual or apprehended bias because the transcript of the Tribunal hearing clearly showed that the Tribunal member had a pre-existing state of mind which disabled her from undertaking (or rendered her unwilling to undertake) any proper evaluation of the relevant materials, and that a fair-minded lay observer properly informed as to the nature of the Tribunal proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the questions to be decided. 

6. It was contended that various extracts from the transcript demonstrated that one or other or both of the tests for bias were satisfied.  First it was submitted that during the hearing the Tribunal member surmised that a number of factual circumstances existed without there being a scintilla of evidence of those facts.  For example at transcript pages 11 and 12 the member stated:

   MS KERR: … see the difficulty with actually being in the British military is that it’s entirely up to the British military where he goes.  It’s not like a normal contract of employment.

   …

   MS KERR: But the thing is that the British military can still post him to Northern Ireland and then he has to discharge.  It’s entirely up to the military where he goes, entirely up to the military if he can even discharge because you just can’t – it’s not like normal employment where you indicate to an employer that you are going to resign in two weeks time and going to leave, that’s not the way that the British military works.

   …

   MS KERR: Well he can’t stay in Germany unless he applies for some sort of status in Germany because being a British military person he’s probably there on the status of forces arrangement or he’s part of the NATO forces. 

   THE APPLICANT: I think it’s – because he’s an EE citizen.

   MS KERR: No, he’s actually there because he’s part of the military forces. 

   THE APPLICANT: Right

   MS KERR: He’s part of the NATO military forces.  He’s not residing in Germany because he’s an EEU citizen, he’s residing because he’s posted there by the British army which is, as I said, which is why I was hoping for evidence from the British army because at least they could tell me whether Oslinbruck is actually considered to be British territory because it’s a possibility it’s still British territory under the – there is arrangements after WWII where indeed that it’s, if it’s not British territory it could very well be German territory but he may be there only on a status of forces agreement which is quite common with any of the Commonwealth – with any nation where we have military persons, where military personnel residing here as part of the allied defence arrangement they usually don’t have residency status, they usually have a particular migration status. 

   And at 19:

   MS KERR: And so the difficulty I have is knowing the way that the military work and knowing that it is not like a normal contract of employment and but still determining that he – where he resided and my understanding would be that with the British military as with most military personnel he would be paying tax to England, he would be effectively employed by – well he’s employed by Her Majesty’s Forces.  He’d be paying tax to England, he’ll have – still be travelling on a British passport and if – and he probably has a special status in Germany which is a status that would be given to him because he is a military personnel there as part of the NATO forces …

7. The Applicant submitted that these propositions were in the nature of mere assertion that lacked rational or reasoned foundation in the evidence before the Tribunal member. 

8. Secondly it was contended that during the hearing the Tribunal member generalised from her own experience with the Australian Defence Forces and drew an analogy that the same applied to a member of the British Military Police, without having any rational or reasoned foundation based on the evidence before her.  For example at transcript page 12: 

   MS KERR:  But they’re still usually considered to be resident somewhere else.  Does that – I know that’s – that’s why I was hoping for some evidence but I suppose because I’m also coming from a perspective where I know how the military works and having lived overseas with the military I know that I was not resident in the other country.  I had a favoured migration status with exemption that gave me some standing in that other country but I was not considered to be a citizen there and my concern is, is that being a military person in another country, being a British military person in another country he – his standing is basically only as a military person. 

   THE APPLICANT: Right. 

   MS KERR: Plus you then have the additional military aspects to it which is that they can determine where he is, they can determine if as in the military can determine if he stays in Germany even another week, they could just change his posting and change him, move him to somewhere else.  Do you know if he lives – he hasn’t given a – do you know where he lives in Germany, does he live on a military base? 

   THE APPLICANT: I’m not sure if he does.

9. The Applicant submitted that the exercise of positing an analogy and finding the analogy apposite without a scintilla of evidence to support it was in the nature of a ‘hunch’, ‘gut feeling’ or mere assertion and as such lacked rational or reasoned foundation and indicated actual or an apprehension of bias. 

10. Thirdly it was suggested that the Tribunal ‘hunches’ in respect to Christopher Maddy’s employment in the British army meant that the applicant effectively had to discharge an evidentiary onus to convince the Tribunal to depart from the delegate’s decision.  For example at transcript 17:

    MS KERR: Okay, see the two things, well part of the difficulty is and it’s what the visa was refused on is that the delegate determined that Christopher usually resides in the United Kingdom and that Matthew also usually resides in the United Kingdom, all right and the difficulty is, is that at the moment I’m not satisfied Christopher doesn’t usually reside in the United Kingdom

    …

    MS KERR: And that’s the difficulty I have, I don’t have any other evidence before me to indicate that he is actually usually resident in Germany.  He’s on a posting to Germany and the British military can change it at any time, even if he’s intention is to stay in Germany, the British military can actually just not even allow him to fulfil that intention other than him actually resigning and even then the British military can stop him resigning because it’s up to them to accept a resignation.  It’s not like a normal employment where you give your two weeks or one month notice and away you go.  They can hold him in there.  Do you know, has he signed on for three or six years? 

    MRS MADDY: He signed on, as far as I know he’s there for I think 15, 20 years.  

    MS KERR: Well you normally sign – you normally join up for 22 but usually sign on for six years but you can be on a short term contract for three years. 

    MRS MADDY: He’s not on a short term contract. 

    MS KERR: So he’s probably - - -

    MRS MADDY: He’s in there for life, you know 20, 22 years. 

    MS KERR: That’s entirely up to the British military to determine that as well because if he doesn’t pass basic physical, basic medicals then he’s not necessarily in there even for the 22.  You’re in there for the 22 so that you can retain your pension? 

    MRS MADDY: Yeah. 

    MS KERR: You know that’s the standard way that it works but it’s entirely up to the British military whether he does and even then it is also up to him whether he chooses to stay but if he was to resign it’s up to the military whether they actually accept his resignation.  See the difficulty I have is that I don’t consider being posted to Germany as part of the British forces to be equivalent to having a contract with a civilian employer because it isn’t.  It isn’t the same. 

1. The applicant submitted that these extracts revealed that the Tribunal member had a pre-existing state of mind that was not open to persuasion, that the Tribunal member’s approach effectively set an evidentiary onus for the applicant to meet which was an impossible challenge in circumstances where there was said to be a disparity between the knowledge of the Tribunal member and the applicant and his parents and where there was no notice of the information on which the Tribunal member proposed to base her decision. 

2. Further, it was suggested that during the hearing, having formed a view as to Christopher Maddy’s residency, based on her ‘hunches’ in respect to military service, the Tribunal member then stated that, in effect, an onus of proof did exist.  At transcript 34 the Tribunal member stated:

   MS KERR: … Okay, and I suppose what I would point out to you though is it’s actually even though we don’t say that there’s an onus or burden of proof or an onus on an applicant in administrative law matters, reg 1.15(3) indicates that an overseas near relative is taken to reside in the last known country of residence unless I’m satisfied that it’s different. 

   MR ZIPSER: Thank you for pointing that out.  Thank you. 

   MS KERR: Yes, so which doesn’t take us anywhere really other than it does effectively put the onus on to the applicant even though there’s no such thing in administrative law but it does, it does put it back that way.  I’m not quite sure how we should refer to it because there’s no onus in administrative law but the legislation sets it up that effectively it is, it’s up to you to convince me that Christopher – I’m not sure who it is, Christopher or Matthew but that it’s to convince me where people reside.  So okay.  Now, I’ve probably confused you but what happens now is I make a decision having regard to everything that’s before me and we send it out. 

3. The applicant submitted that this extract supported the view that the Tribunal member had formed a pre-existing state of mind about the applicant’s claims, which she put to the applicant in circumstances where he had no opportunity to answer her concerns because of insufficient notice of the adverse information. 

4. On this basis the applicant submitted that the Tribunal member had a fixed preconception as to the status and circumstances of Christopher Maddy and that being the case, she had asked the applicant and his parents impromptu pointed questions in the hearing about the British military which any reasonable person would be unable to answer.  She had then asked why the British armed forces had not cooperated in providing information to support their claims, in circumstances where the British armed forces were engaged in Iraq.  The Tribunal member was said to be fortified in her preconceptions by the applicant’s failure to answer questions or produce the required information and to have surmised from her own experience as to the existence of material facts that went to the jurisdictional fact, being satisfaction Christopher’s residency.  It was contended that such surmising, without a scintilla of evidence and based on analogy with the Australian armed forces in Malaysia, indicated bias on the part of the Tribunal member which led her into error. 

5. Reliance was also placed on a contention that in the Tribunal reasons for decision there was no consideration of key aspects of the applicant’s claims.  For example, it was pointed out that no mention was made of the claim that the brothers had not had social contact because of an assault or altercation involving Christopher in which the applicant’s jaw had been broken.  This was said to be an important fact that, in addition to Christopher’s military posting overseas, explained why the brothers had had no social contact. 

6. It was submitted there was some support for the contention that the Tribunal’s failure to mention a very material fact (which went to the question of the social contact between the brothers) was relevant to the issue of whether the Tribunal fell into actual or apprehended bias in the decision of Allsop J in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 214 ALR 264 at [115]. While it was conceded that it was perhaps not best to describe the conclusions drawn by the Tribunal in this case as “unreasonable”, they were said to be erroneous because there was no actual foundation before the Tribunal for some of those conclusions.

7. It was also suggested that there was no basis in the evidence for the Tribunal conclusion:

   There is nothing before the Tribunal to indicate that the visa applicant and his brother did not socialise at common events such as Christmas or to farewell their parents on their migration to Australia.

8. It was contended that this amounted to mere speculation that was not even put to the applicant or the applicant’s family.  Further, the Tribunal member stated in her reasons at [52] that:

   It is for the applicant to satisfy the Tribunal that there has been no social contact within the 3 year period prior to the application.

9. However during the hearing the Tribunal member had stated (at transcript 33):

   TRIBUNAL: The policy is three years but I’m not going by policy.

10. The Applicant submitted that the failure to mention the claimed reason for the lack of social contact in circumstances where the Tribunal engaged in making factual findings based on speculation and ‘hunches’, was evidence that the Tribunal member had a pre-existing state of mind which disabled her from undertaking or rendered her unwilling to undertake any proper evaluation of the relevant materials.  It was submitted that in essence she preferred her own speculation, ‘hunches’ or ‘gut feeling’ to the material put forward by the applicant and as such she was selective of material going one way, such material not being based in evidence. 

11. It was contended for the respondent that the Tribunal’s process of questioning was properly directed to the status of the overseas near relative in Germany, the Tribunal having evidence before it, as raised in the s.359A letter, that the overseas near relative was resident in the United Kingdom. Under Regulation 1.15 it was for the applicant to satisfy the Tribunal of the criteria and under subregulation 1.15(3) an overseas near relative was taken to reside in his last known country of residence unless the applicant satisfied the Tribunal that the overseas near relative was resident in another country.

12. It was submitted that in such a legislative context, neither actual nor apprehended bias was established by the Tribunal raising the issues that it had in relation to the status of the overseas near relative during the hearing and indicating the Tribunal’s thinking about that topic.  Rather the Tribunal was said to be engaged in a legitimate process of reasonable enquiry.  Moreover, the contention as to the inadequacy of the material before the Tribunal was said to be insufficient in itself to establish jurisdictional error in light of the fact that the Tribunal’s decision involved a lack of affirmative satisfaction that the criteria for the visa had been satisfied.  (See Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 38 per Gummow and Hayne JJ and Lay Lat at [71] – [76]).  It was further contended for the respondent that the Tribunal understood the ‘onus’ imposed by Regulation 1.15(3).  There was said to be no jurisdictional error established in the manner in which the Tribunal discharged its function in considering whether the applicant had satisfied it of the requirements of regulation 1.15. 

Reasoning

1. It is well established that if actual or apprehended bias is established, that may constitute jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, VFAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 23 and NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328). However, a party alleging actual bias carries a “heavy onus” (see the discussion in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 822 at [18] – [23] per Kenny J). As Gleeson CJ and Gummow J stated in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 – 532:

   “Decision-makers sometimes approach their task with a tendency of mind, or proposition, sometimes one that has been publicly expressed, without being accused or suspected of bias.  The question is not whether a decision-maker’s mind is blank, it is whether it is open to persuasion …

   The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”

2. An allegation of actual bias must also be “distinctly made and clearly proved” (Jia at 531 per Gleeson CJ and Gummow J) although it may be established by inference from the circumstances including the decision (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [37] per von Doussa J).

3. In this case the applicant relies on the transcript of the Tribunal hearing and the Tribunal decision to contend that the Tribunal member brought a “closed mind” to the inquiry (see White v Minister for Immigration & Multicultural Affairs [2000] FCA 232 at [47] – [53]).

4. The test for apprehended bias is as set out by the High Court in the Re Refugee Review Tribunal; Ex part H (2001) 179 ALR 425. As the Court (Gleeson CJ, Gaudron and Gummow JJ observed at [5]:

   “… the rule of apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings … Moreover … regard must be had to the statutory provision, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned.”

5. After referring at [27] to the test for apprehended bias in curial proceedings:

   “whether a fair- minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”

   their Honours continued:

   “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. 

   29. Though the test in administrative proceedings, as in curial proceedings is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account.  In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented. 

   30. Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously.  Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.  Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. 

   31. Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated.  If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.” 

6. In this case it is necessary to consider not only those extracts from the transcript of the hearing referred to in the applicant’s submissions but all of the circumstances of the conduct of the review. 

7. First, the applicant was at all times represented by a solicitor.  Prior to the Tribunal hearing the applicant was invited to comment on the information that his brother may be usually resident in the UK (and that in 2001 he declared his country of residence to be England) and also invited to provide evidence and information about his relationship to his nominator (his father), the current residence of his brother and from the British Army indicating his service history.  In response the applicant’s solicitors provided a birth certificate and a letter from Christopher Maddy – but made no other comment on the information about Christopher Maddy’s residence.

8. In that letter of 14 August 2003 Christopher Maddy explained that when he visited Australia in 2001 he still considered the UK as his country of residence, but claimed that Germany had been his residence for the past three years.  He also detailed his postings. 

9. Subsequently the Tribunal invited the applicant to attend a hearing.  In his response to hearing invitation the applicant requested that the Tribunal take oral evidence from himself and his parents. 

10. The applicant and his parents attended a Tribunal hearing on

    
    

    22 September 2003.  They were accompanied by a barrister, Mr Zipser, who indicated that if there were relevant areas about which the Tribunal had not asked, he was thinking of suggesting to the Tribunal that it ask questions in that area and that he would like the opportunity to provide post-hearing written submissions. 

11. It is notable that at no time during the hearing did Mr Zipser take issue with the Tribunal’s questioning.  (See NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 57 at [18]). He raised one issue for consideration – about whether the brothers were studying the same course at the college they attended at the same time. At the conclusion of the hearing he did not take issue with the conduct of the hearing or seek to address the Tribunal, except to ask if he could make written submissions and to discuss with the Tribunal the possibility of a distinction between the concepts “usually resides” and “resides” in regulation 1.15 and the question of what a “reasonable period” means in assessing contact.

12. The Tribunal drew subregulation 1.15(3) to Mr Zipser’s attention.  The Tribunal member advised that while she would not give a particular time for written submissions, she would have regard to anything that arrived prior to the handing down. 

13. The applicant’s solicitor provided post-hearing written submissions setting out “relevant facts”, issues and making submissions on the law.  It is relevant that no issue was taken with the conduct of the hearing.  (See NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [18]). There is no affidavit evidence before the Court from either the solicitor for the applicant or the barrister who attended the hearing. In NAEB of 2002 at [18] the Full Court of the Federal Court found it significant that no affidavit was filed by a solicitor present at the hearing to support a claim of apprehension or perception of bias on the part of the Tribunal.

14. It is the case that in the course of the hearing the Tribunal member elaborated at length on her personal knowledge of the status and conditions of members of the military on overseas postings. She attributed aspects of her knowledge to her own experience “knowing the way the military work” and “having lived overseas with the military”. She put to the applicant, and also to each of his parents, aspects of her knowledge about British military postings (not explaining the source of her information beyond the references to her own experience). At times her questioning resembled a monologue. The applicant (and his parents) may well have found it difficult to address her specific concerns in their responses. She referred to an unfulfilled hope for very specific information from the British Army (despite the generally expressed s.359 request). However the Tribunal member indicated areas of concern or “difficulties” with the claim that Christopher Maddy resided in Germany, given that he was there as a member of the military. She stated that she would have regard to any post-hearing submissions received before the decision was handed down. She did so in the reasons for decision.

15. It is important to bear in mind that, as Kirby J stated in Re Minister for Immigration & Multicultural  Affairs; Ex parte Epeabaka [2001] HCA 23 at [90] the test for disqualification (in a case where ostensible bias on the part of a Tribunal was alleged):

    “… is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached.  Something more is required.  Although the law interposes the imputed consideration of a fair minded observer and speculates on whether that person ‘might’ (rather than ‘would’) entertain a reasonable apprehension of bias in the particular case .., the serious consequences that necessarily attend the affirmative conclusion oblige that it should be ‘firmly established’ …”

16. The conduct complained of in this instance does not, either alone or cumulatively, establish actual or apprehended bias.  As noted above, the absence of contemporaneous or subsequent complaint to the Tribunal or intervention by the applicant’s legal representatives does not support this claim.  Further, the fact that the Tribunal (while not specifically allowing time for post-hearing submissions) allowed that it would (and did) take into account post-hearing submissions on the facts and law, does not support a conclusion that a fair-minded lay observer might apprehend a lack of impartiality. 

17. Counsel for the applicant took issue with the Tribunal surmising that factual circumstances existed without there being a ‘scintilla’ of evidence.  It is, first, important to distinguish between the questions asked at a Tribunal hearing (including questions which put propositions to an applicant for comment) and the Tribunal’s reasons for decision.  As discussed above the ‘no evidence’ ground is not made out in relation to the reasons for decision. 

18. The Tribunal member’s reliance on her personal knowledge to highlight relevant issues did not demonstrate either actual or apprehended bias.   It is clear from the transcript as a whole that the Tribunal member explained the “difficulty” she had in assessing the evidence provided to support the contention that Chris Maddy resided in Germany, based on her knowledge of “the way that the military work”.  The Tribunal member did put to the applicant her understanding of the position of a member of the British Army and the manner in which the demands of the military could override a person’s intention and could be relevant to the issue of residence.  She explained the basis for these assertions (which were put as background information relevant to the issue for determination).  The Tribunal explained the difficulty unresolved matters raised in the context of the issues under consideration and in light of the obligation on the applicant to satisfy her under regulation 1.15.

1. The fact that the Tribunal member relied on her own experience in the military from which she reached certain views about factors relevant to the issues, which she disclosed at some length to the applicant in the hearing, does not establish that she approached the inquiry with a closed mind and was unable or unwilling to decide it impartially (Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71), or that a fair-minded lay observer might have reasonably apprehended that the Tribunal member might not bring an impartial mind to considering the applicant’s claims.

2. As Branson J stated in NAEH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 927 at [13] (appeal dismissed on other grounds [2003] FCAFC 28) where a Tribunal member said she had visited a country in issue and drew certain views from that which she put to the applicant in the hearing for submissions:

   “An administrative decision-maker is under no obligation to disregard his or her relevant personal experiences.  Indeed, relevant experience may explain an individual’s appointment to an administrative body such as the Tribunal.  However, the Tribunal is under a duty to conduct a fair hearing.  Where the Tribunal contemplates calling in aid the presiding member’s own observations in a way which could be prejudicial to the interests of an applicant the applicant is entitled to be given an opportunity of commenting on those observations in the context of the applicant’s claims (Ozmanian v Minister for Immigration & Local Government & Ethnic Affairs (1996) 137 ALR 103 at 123).” (Also see Minister for Immigration & Multicultural & Indigenous Affairs v WAFJ [2004] 203 ALR 581 at [73]).

3. That is what occurred in this case.  The Tribunal member gave the applicant and his parents an opportunity to comment on her observations about the military generally and the British army specifically.  She highlighted deficiencies in the evidence presented by the applicant to support the claim that Chris Maddy lived in Germany.  The fact that she did so by reference to her own experience and knowledge of status and conditions in the military does not establish a lack of a reasoned foundation for raising such issues. 

4. Insofar as the applicant takes issue with what might be described as the “nature and tone” of the questioning and the presentation of specific and detailed issues based on the Tribunal member’s knowledge or experience, there is nothing to suggest that the Tribunal gave other than a genuine and thorough consideration to the applicant’s claim or did other than accord the applicant procedural fairness by ensuring he was “plainly confronted” (See Ex parte H at 435) with matters adverse to his claim.  As Sackville J stated in NANL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 277 at [29] it must be remembered that Tribunal proceedings are inquisitorial in character and that one element of the fairness required of an inquisitor is to put to the applicant doubts about his account of events and to invite comment on those doubts.

5. This is not a case in which the Tribunal’s conduct in the hearing was so ‘vigorous and aggressive’, intimidatory or overbearing that a fair-minded observer might infer that there was nothing one could say or do to change the Tribunal’s preconceived view. 

6. NADH of 2001 does not assist the applicant.  That case involved very different factual circumstances (where the Tribunal cursorily dismissed supporting documents without apparent foundation and selectively used answers to questions in a Tribunal hearing, during which the Tribunal had asserted that the evidence of the applicant was implausible and where the applicant’s solicitors thereafter requested that the Tribunal member disqualify himself).  The Tribunal’s reasons for decision in NADH were found not to be a fair evaluation of the applicant’s evidence.  In NADH Allsop J stated at [114], there had been what appeared to be a “very questionable and I think startling, treatment of the oral evidence as to religion and [a] largely unreasoned and generalised rejection of the utility of the ten documents” from which the Tribunal drew a conclusion rejecting the credibility of the applicant’s central claims.  This is not such a case. 

7. The Tribunal’s comments in relation to onus, rather than being indicative of pre-determination, in fact put the applicant on notice of the effect of subregulation 1.15(3).  The fact that the applicant has a positive obligation to satisfy the Tribunal arises from the language of regulation 1.15 – not from the Tribunal’s reliance on hunches or a pre-existing state of mind. 

8. While the applicant may have lacked the knowledge to address the specific issues raised during the hearing, it cannot be said that the applicant had no opportunity to answer the Tribunal’s concerns because of insufficient notice of the adverse information.  First, general concerns about these issues (particularly the residence of a member of the British armed forces) were raised by the delegate – who stated in the decision of 5 July 2002:

   “Chris Maddy is in Germany because he has been posted there with the British Forces and he will only be there for another nine (or possibly fifteen) months.  His posting will end next year and he may well be returned to the United Kingdom at that time.  He has not personally chosen to settle in Germany and establish his abode there.” 

9. Hence the applicant was aware of the central issue elaborated upon by the Tribunal member. The s.359A letter also raised the underlying concern. Further, the applicant had the opportunity to comment on this and other specific matters raised at the hearing, not only at the hearing but also thereafter. There is nothing in the material before the Court to suggest that the applicant sought further time to provide information from the British Army, to address issues about the military generally or about Christopher Maddy’s status and conditions at Osnabruck.

10. As to the claim that in the reasons for decision there was no consideration of key aspects of the applicant’s claims, the Tribunal’s failure to mention the claimed reason for the absence of contact between the brothers is not indicative of actual or apprehended bias.  In this respect, as in relation to the question of where Christopher Maddy resided, the Tribunal did not simply prefer her own speculation, hunches or gut feeling to the material put forward by the applicant.  Rather the applicant did not satisfy the Tribunal as required by regulation 1.15.  The statement in the Tribunal reasons for decision that there was nothing before it to indicate that the brothers did not socialise at common events was a factual statement as to a lack of evidence.  It cannot be said that there was no basis in the evidence for this conclusion or that it amounted to mere speculation.  Rather than being selective of material going one way as contended, the Tribunal was not satisfied “by the applicant” that the criteria in regulation 1.15 were met. 

11. More generally, to the extent that the applicant relies on matters discussed under other grounds relating to the Tribunal findings (such as the general claim that the fact finding was conducted in an unreasoned manner and by mere assertion lacking rational or reasoned foundation), such contentions are not made out.  The Tribunal did not fall into jurisdictional error or demonstrate actual or apprehended bias in requiring that the applicant satisfy it in accordance with the express provisions in reg 1.15(1) and 1.15(3).  Neither actual nor apprehended bias is established. 

12. As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  4 August 2006.