Pietersen v Minister for Immigration - [2003] FMCA 369

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PIETERSEN v MINISTER FOR IMMIGRATION

[2003] FMCA 369

MIGRATION – Review of decision of the Migration Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a family (residence) (class AO) visa subclass 806 – no reviewable error disclosed – application dismissed.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Kordon Pty Ltd v Commissioner of Taxation (2003) FCA 1807
Jia v MIMIA (1999) 93 FCR 556
SCAA v MIMIA (2002) FCA 668
SBAP v RRT (2002) FCA 590
Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421

Applicant:

HENRY FRANCIS PIETERSEN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ629 of 2002

Delivered on:

29 August 2003

Delivered at:

Melbourne

Hearing date:

30 January 2003

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Porceddu

Solicitors for the Applicant:

Armstrong Ross

Counsel for the Respondent:

Mr Fairfield

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the respondent's costs pursuant to the Federal Magistrates Court Rules 2001, Part 21, rule 21.10.
It is certified that pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ629 of 2002

HENRY FRANCIS PIETERSEN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant filed an application to review, under s.39B of the Judiciary Act 1903 (Cth) as provided in Part 8 of the Migration Act 1958 (Cth), (the Act) a privative clause decision made on review by the Migration Review Tribunal under Part 5 of the Act. By consent I ordered on the hearing of this matter that the applicant be granted leave to amend the application filed to particularise actual bias and a lack of bona fides on the part of the Tribunal member as elaborated by the applicant in the contentions of fact and law as filed by him on 23 September 2003. The applicant sought orders in the nature of prohibition, mandamus and certiorari alleging that the Migration Review Tribunal (hereinafter the MRT) decision involved jurisdictional error of law and thus could not stand. The grounds of that application are as set out in paragraph 3 of the application filed

27 June 2002 and the amendments made to that application.

History

The applicant was born on 14 August 1948 and is a citizen of South Africa. He arrived in Australia on 10 November 1997 as the holder of a short stay (visitor) (class TR) subclass 676 visa which was valid until 10 February 1998.
On 5 February 1998 the applicant applied for a family (residence) (class AO) visa. He claimed that he was the “special need relative” of his sister, Ms Annie Katrina Zeberer. She is the nominator. She entered Australia on 3 March 1991 and became an Australian citizen on

7 February 1996.
On 7 December 2001, a delegate of the respondent refused the applicant's application and by application lodged on 3 January 2002 the applicant sought a review of that decision by the MRT.
On 27 March 2002 the MRT conducted a hearing at which the applicant and nominator gave evidence. A written submission had been supplied to the MRT by the applicant's migration agent dated

17 January 2002 together with a medical report by one Dr Wiehle dated 21 December 2001. That report updated earlier reports of Dr Wiehle. The applicant was represented before the MRT. Further submissions were received from the applicant's migration agent following the hearing.
By a decision dated 31 May 2002 the MRT affirmed the decision of the delegate (CB 97 to 109).
At the time of filing of the application, the applicant also filed an affidavit sworn 27 June 2002. The reports to which he refers are contained in the Court Book.

Migration Review Tribunal hearing

The MRT found that the applicant was nominated by his sister who was an Australian citizen and that thus he satisfied those two elements of the definition of “special need relative” contained in regulation 1.03. However, the MRT found the applicant did not satisfy the relevant criteria for the grant of a subclass 806 visa because as at the date of application he did not satisfy criterion required pursuant to the Migration Regulations 1994 (Cth) clause 806.213. In particular because, and as set out in the respondent's contentions of fact and law which I adopt as accurate:
a)The nominator did not have a permanent or long term need for assistance, at the time of application, because of her prolonged illness;
b)The nominator did not have a permanent or long term need for assistance because of “other serious circumstances”;
c)The nominator's medical condition together with other factors including her age and loneliness did not cumulatively constitute a “disability” or “other serious circumstances”;
d)The nominator's condition did not, at the time of application, fall within the definition in regulation 1.03;
e)Despite the applicant's genuine willingness to assist the nominator, the care provided by the applicant to the nominator was not, at the date of application, substantial and continuing assistance;
f)The MRT was not satisfied that the assistance required by the nominator could not reasonably be obtained from welfare, hospital, nursing or community services in Australia;
g)The MRT was not satisfied that the assistance required by the nominator could not reasonably obtained from a combination of the nominator's Australian relatives;
h)The applicant made no claims nor was there evidence that he satisfied any of the other grounds for the grant of a family (Residence) (Class AO) visa.

Considerations

The definition of “special need relative” was defined in the Migration Regulations 1994 (Cth) regulation 1.03 and contained a number of elements. The definition of “special need relative” was repealed on 1 December 1998. Clause 806 was repealed in respect of applications for a visa made on or after 1 November 1999; Migration Amendment Regulations 1999 (No.13), Statutory Rules 1999 (No.259), Regulation 4 and Schedule 2, paragraph 2351. These changes do not affect the application of the law, in force on the date of the application, to the applicant's case.
The nominator was both an Australian citizen and a relative of the applicant. In addition, the definition required the satisfaction of the following elements and each and every one of them:
a)Whether the nominator had a permanent or long term need for assistance because of certain proscribed circumstances;
b)Whether the applicant was willing and able to provide that assistance which was required to also be substantial and continuing;
c)Whether the assistance could not reasonably be obtained from the relatives of the nominator or from Australian welfare, hospital, nursing or community services.
The Tribunal was satisfied that the nominator suffered from a prolonged illness and relied upon the medical reports of Dr Wiehle to be so satisfied (CB 104). However, the Tribunal held that the application failed because there was no evidence that the nominator had a permanent or long term need for assistance at the time of the application in February 1998 (CB 106). In submissions made before me and in the contentions as filed by the applicant, the applicant's argument to found his application was that the MRT was guilty of actual bias and
Did not make a bona fide attempt to exercise its power.
The applicant submitted to the Court that it should infer actual bias from the reasons for decision of the Tribunal and from the audio tape of the hearing conducted by the Tribunal. However, the audio tape of the hearing was not placed before this Court. The respondent was not provided with a copy of the tape recording. The applicant did not rely in his contentions or submissions before me upon any reference from the tape nor any reference from any transcript of the hearing nor any other evidence from the hearing.
An allegation of actual bias is a serious matter and is not an allegation that should be made lightly; Kordon Pty Ltd v Commissioner of Taxation (2003) FCA 1807. Likewise, proof of bad faith on the part of the Tribunal necessitates proof of extreme circumstances and again, is a serious allegation which should not be made lightly.
In a letter written by the applicant's representatives to the MRT the day following the hearing, no suggestion was made on the part of the applicant that the MRT had acted improperly or had demonstrated actual bias or an absence of bona fides (CB 75 to 76). On the contrary, the last paragraph of that letter confirms that the MRT specifically brought to the applicant's and nominator's attention its concerns about the inconsistencies in the nominator's evidence about her past relationship with the applicant. In doing so, the MRT accorded to the applicant procedural fairness.
The applicant submitted to the Court that it should find the requisite motivation and evidence of “actual bias” on the basis of:
a)a finding by the MRT that the nominator was not credible. This included an allegation by the applicant that the Tribunal member had approached the task with a closed mind in that the Tribunal member had already formed a view that the nominator had given inconsistent answers between her earlier migration application in 1993 and the present application;
b)the MRT's reasoning that, as at the time of application, there was little “objective medical evidence outlining the specific type of assistance the nominator required”;
c)the attribution of little weight to a particular piece of evidence, being a report dated 23 March 1998 from the psychologist, Mr Eddie Kleynhans (CB 29 to 42).
The principle of actual bias was discussed by the Full Court of the Federal Court in Jia v MIMIA (1999) 93 FCR 556 where Cooper J said (at 82):
“... the fact that a decision maker has formed a conclusion about an issue involved in the inquiry does not constitute bias on the part of the decision maker ... it must be shown that the decision maker is unwilling or unable to be persuaded out of any express or implied view before actual bias will be found. As a finding of actual bias requires a factual finding of a state of mind, it may be proved from the statements or conduct of the decision-maker or as a matter of inference from such statements or conduct. Such statements and conduct, however, must be viewed in the context of the decision making process as a whole.”
In SCAA v MIMIA (2002) FCA 668 von Doussa J discussed the nature of what a finding of actual bias must entail (at 38):
“In my opinion, it would be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter gives rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing .. or a failure to inquire into and to obtain readily available and important information relating to central matters for determination (SBAN v MIMA (2002) FCA 591 at 26 to 27) an inference of actual bias by prejudgment might then be more readily drawn. But then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.”
With respect to circumstances wherein a decision maker might be found not to have made a bona fide attempt to exercise his or her power, the question is whether there is an honest or genuine attempt to undertake the task in a way that does not merit personal criticism of the Tribunal or officer in question. Bad faith is not just a matter of poor execution or poor decision making involving error as was said by Heerey J in SBAP v RRT (2002) FCA 590 at 47 the phrase “bona fide” involves:
“…a serious question involving personal fault on the part of the decision maker going beyond error of fact or law. It must be clearly identified and proved.”
The MRT's decision was extensive and detailed in its examination of the material and information placed before it. The Tribunal's conclusions were open on the evidence before it. No matter identified either singly or taken together can support any evidence of an absence of bona fides by the decision maker still less any evidence that the decision maker, whilst exercising the decision making power, was so committed to a conclusion already formed as to be incapable of altering that decision regardless of evidence or arguments that were presented to it.
The question is not whether a decision maker's mind is blank; it is whether it is open to persuasion.
(Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at 71 to 72 per Gleeson CJ and Gummow J.)
The MRT found that the nominator suffered from a prolonged illness. However, it was open on the evidence for the MRT to find that there was little “objective medical evidence” of the specific type of assistance which the nominator required in respect of that illness as at the date of the application. In this context, it was also open to the Tribunal to find an absence of such evidence in Dr Wiehle's report dated 16 January 1998 (CB 25). The Tribunal considered the report of the psychologist, Mr Kleynhans, dated 23 March 1998 but did not give too much weight to that report. This was clearly open to the Tribunal on the evidence before it.
It is not for this Court to substitute its own views of the evidence. The applicant disagrees with the Tribunal's view of the merits of the case but these are factual matters.
The allegation of actual bias rests upon inference said to arise from the expression of the published reasons for decision of the Tribunal which were adverse to the applicant. No other material has been advanced by the applicant to support the allegation and there is nothing before me in the published reasons for decision of the Tribunal or any other document or thing which gives rise to any apprehension of bias by the Tribunal, let alone to actual bias. This submission is completely without foundation.
What occurred is that the assessment of the credibility of the applicant and nominator was essentially a matter for the Tribunal alone. The applicant asserts that the credibility findings made by the Tribunal were wrong. The Tribunal gave detailed reasons for rejecting the credibility of the nominator; the Tribunal had regard to past visa applications of the nominator but agreed with the applicant’s migration agent that such applications did not constitute part of the criteria relevant to a visa application based on “special need relative” grounds. However, the Tribunal found that evidence to be directly relevant to the nominator’s credibility. The Tribunal said:
The nominator appears to have given two different versions of her life story in respect of two different visa applications. Her explanation of this was not satisfactory at the hearing and the Tribunal found that she was not a credible witness. Based on the nominator’s demeanour and responses at the hearing, the Tribunal does not accept the migration agent’s submission that the nominator has difficulty with comprehension. Therefore, given the totality of the evidence before it, the Tribunal gives little weight to the psychologist’s report.
The MRT found that the applicant did not satisfy the definition of “special need relative” for reasons unrelated to the factual matters relied upon by the applicant and the applicant does not contend that those reasons in that context demonstrate any absence of bona fides or actual bias. Likewise, the applicant does not contend, nor could he, that the matters relied upon him demonstrate any error of law.
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA FC361, a decision of the Full Court of the Federal Court sets out in paragraphs 43 to 48 inclusive a summary of propositions which have emerged which are applicable to a determination of whether the decision constitutes a bona fide attempt to exercise the power of review. After a consideration of all those matters I cannot find that the decision in this case was anything other than a bona fide attempt by the decision maker to exercise the power which the Act reposes in such decision maker.
The decision is a privative clause decision and there is no failure to satisfy any of the so-called “Hickman” provisos. I will order that the application is dismissed and the applicant is to pay the respondent’s costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: T. Jones

Date: 29 August 2003