Sangha v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 164
•14 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sangha v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 164
File number(s): ADG 127 of 2019 Judgment of: JUDGE GERRARD Date of judgment: 14 February 2025 Catchwords: MIGRATION – Partner visa – decision of the Administrative Appeals Tribunal – whether the Tribunal decision was affected by apprehended bias – whether the Tribunal relied on findings in a previous decision – whether the Tribunal failed to consider evidence – whether the Tribunal failed to apply an active intellectual process –jurisdictional error established – writs issued Legislation: Migration Act 1958 (Cth) ss 5F, 5F(2), 5F(2)(a), 359AA, 375A, 476
Migration Regulations 1994 (Cth) reg 1.15A, cll 800.211, 800.221
Cases cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Ebner v Official Trustee in Bankruptcy (M131 of 2999) (2000) 205 CLR 337
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456
Isbester v Knox City Council (2015) 255 CLR 135
Jaggi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1267
Livesey v NSW Bar Association (1983) 151 CLR 288
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65
Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425
SZHBP v Minister for Immigration and Citizenship (2008) 103 ALD 595
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Webb v The Queen (1994) 181 CLR 41
Aronson M, Groves M, Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, Lawbook Co., 2022)
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of last submission/s: 5 December 2024 Date of hearing: 11 December 2024 Place: Adelaide Counsel for the First Applicant: Sean Kikkert Solicitor for the First Applicant: Dentons Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 127 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SATWANT SINGH SANGHA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
14 FEBRUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 8 March 2019.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the applicant’s review application according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a partner visa. For the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). It is well-established that this Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has found a series of jurisdictional errors in the Tribunal’s decision. On that basis, the application has succeeded.
BACKGROUND
The applicant is a citizen of India and is 35 years old (Court Book (CB) 12). He arrived in Australia on 15 July 2009 as the holder of a Student visa. At the time of applying for the Partner visa which is the subject of this review, he held a Student (Class TU) (Subclass 572) visa, valid until 21 August 2013 (CB 38).
The sponsor, Ms Smith (the sponsor), is an Australian citizen and is 30 years old (CB 1). The applicant and the sponsor met on 1 October 2011 and commenced a relationship on 1 January 2013 (CB 2, 18). They married on 10 April 2013 (CB 2).
On 20 August 2013, the applicant applied for a combined Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa (the visa) on the basis of his relationship with the sponsor (CB 1-30, 80). On 16 June 2014, Departmental officers conducted a home visit and interview of the applicant at the nominated residential address (CB 212-218). The sponsor was interviewed separately on 26 June 2014 (CB 205-211).
On 3 October 2014, a delegate of the Minister refused to grant the applicant the visa (CB 221). The delegate was not satisfied that the applicant was in a spousal relationship with the sponsor as defined by section 5F of the Migration Act 1958 (Cth) (the Act) (CB 225-229).
On 23 October 2014, the applicant applied to the Migration Review Tribunal (MRT) for review of the delegate’s decision (CB 248-258). On 11 September 2015, the MRT affirmed the delegate’s decision not to grant the applicant the visa (CB 331-337).
On 30 September 2015, the applicant lodged an application for judicial review in the Federal Circuit Court of Australia. On 23 May 2016, the Federal Circuit Court dismissed the application. On 8 June 2016, the applicant appealed that decision to the Federal Court of Australia. On 26 June 2017, the Federal Court remitted the matter to the Tribunal by consent, noting that the Tribunal had committed a jurisdictional error for failing to disclose the existence of a s 375A certificate (CB 338-339).
On 9 August 2018, the Tribunal invited the applicant to provide further information about the nature of his relationship with the sponsor by 23 August 2018 (CB 352-353).
On 9 August 2018, the applicant requested an extension of time to provide the information (CB 354-355) which was denied by the Tribunal on 17 August 2018 (CB 366).
On 20 August 2018, the applicant and sponsor were invited to attend a hearing scheduled for 27 September 2018 (CB 368-369).
On 31 August 2018, the applicant appointed a migration agent as his authorised recipient (CB 372-373).
On 3 September 2018, the applicant (via his migration agent) responded to the Tribunal’s request for further information (CB 379-380), annexing 22 documents in support (CB 381-785).
On 27 September 2018, the applicant and sponsor attended a hearing before the Tribunal (CB 786). Following the hearing, the applicant also provided further evidence in response to the Tribunal’s questions (CB 789-800).
On 21 January 2019, the Tribunal wrote to the applicant and invited him to comment on purported inconsistencies in his evidence (CB 801-805). On 8 February 2019, the applicant provided further evidence in response to that invitation (CB 821-826).
On 8 March 2019, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa (CB 830-841).
On 2 April 2019, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal began by summarising the procedural background as outlined above. It confirmed that the issue for determination in this matter was whether, at the time of the visa application and the time of the Tribunal decision, the applicant was the spouse of Ms Smith (at [9]).
Under s 359AA, the Tribunal put to the applicant that the sponsor’s mother and her current husband had given affirmed evidence that the sponsor was presently in a relationship with another man (Mr X), and that the applicant had been living in Brooklyn Park in February 2013 rather than sharing a home with the sponsor in Grange as claimed. The applicant was advised that if the Tribunal relied on this information, it would find that his sponsor did not have a mutual commitment to a shared life with him to the exclusion of all others. The applicant and sponsor were granted further time to comment on this information (at [22]-[23]).
After the hearing, the applicant provided statutory declarations from the sponsor and from Mr X (at [26]-[28]). Mr X declared that he was a friend of the sponsor but not in a romantic relationship with her (at [28]). The sponsor additionally said that her mother has previously accused her of being with Mr X (at [24]). The applicant did not provide a statutory declaration from the sponsor’s mother, which the Tribunal inferred to mean that it would not have assisted the applicant’s case, noting that the sponsor appeared to have been in contact with her mother during this time (at [27]). The Tribunal found that the statutory declaration from Mr X is not consistent with the other evidence before it and was not satisfied that it could rely on it (at [29]).
The Tribunal found that there were numerous inconsistencies in the documentary and oral evidence from both the applicant and the sponsor (at [30]-[45]). In particular, the Tribunal was not satisfied that the reason for the “absence of other than sparse items” of the sponsor’s clothing at the site visit was because of a mould problem, which the applicant says he showed to the officers at the time, but is not recorded in the record of the site visit (at [34]-[36]). The Tribunal was not satisfied that the officers would not have recorded this, if it was in fact the reason for the absence of clothing and was mentioned by the applicant to the officers during the site visit. The Tribunal found it is more likely that the applicant did not mention this at all during the site visit and instead later sought to rely on it. The Tribunal did not find this account to be truthful (at [36]).
The Tribunal similarly found the explanations from the applicant and his sponsor about their lack of evidence of communication between them to be inconsistent (at [38]-[41]). The Tribunal did not accept that this was because the applicant had changed his SIM card, or that the messages would not be retained if he had changed his SIM card, or that the applicant and sponsor would decline to provide evidence of communication between them because it was private (at [41]). The Tribunal found that there was likely little communication between them, and it did not accept the applicant’s explanation that, because they lived together, it was not necessary for them to have such communication (at [41]).
In light of these inconsistencies, among others, the Tribunal found that the applicant and the sponsor were not reliable witnesses, and it would therefore only rely on their evidence and statements where they were supported by independent evidence from those not associated with them (at [45]).
The Tribunal then considered the substantive criteria for the visa, including the requirements in s 5F(2) of the Act and the matters to be considered in reg 1.15A of the Migration Regulations 1994 (Cth) (the Regulations) (at [51]-[86]). These matters include the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.
The Tribunal accepted that the applicant and sponsor were married to one another for the purposes of s 5F(2)(a) (at [51]).
With respect to the financial aspects of the relationship, the Tribunal found that the applicant and sponsor did not own any joint assets and did not pool their financial resources, but did have some joint liability for utilities (at [63]). The applicant paid all of the bills and majority of the groceries, but he said that he did not owe any legal obligations to the sponsor (at [61], [63]).
With respect to the nature of the household, the Tribunal found that the applicant and the sponsor did not have any children, so any consideration of joint responsibility for care and support of children does not apply (at [65]). The Tribunal found that the sponsor’s living arrangements were “somewhat transitory” and it was therefore not satisfied that she had established a household together with the applicant as a married couple (at [72]). The Tribunal was not satisfied that they shared responsibility for housework (at [73]).
With respect to the social aspects of the relationship, the Tribunal found that the applicant and sponsor had limited social contact beyond the sponsor’s immediate family and the applicant’s friends. The Tribunal was not satisfied that it could rely upon the statutory declarations before it to form a conclusion about the nature of the couple’s relationship, and it therefore found that the applicant and sponsor did not hold themselves out as a married couple (at [81]).
With respect to the nature of their commitment, the Tribunal found that the applicant and sponsor had not lived together for any lengthy period of time (at [84]), and it did not accept that the applicant saw this relationship between him and the sponsor as long-term (at [86]).
Referring to the information the Tribunal had put to the applicant about the sponsor being in a relationship with another person, the Tribunal was not satisfied that it could rely on the sponsor’s denial or the statutory declaration she had provided. The Tribunal instead preferred the evidence of the sponsor’s mother “with whom [the sponsor] is said to have a close relationship” in that respect (at [87]).
The Tribunal was not satisfied that the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others, or that the relationship was genuine and continuing (at [91]).
The Tribunal found that the applicant therefore did not meet the criteria in s 5F(2) of the Act or cll 800.211 and 800.221 of the Regulations (at [92]).
The Tribunal affirmed the delegate’s decision not to grant the applicant a partner visa (at [93]).
APPLICATION TO THIS COURT
The amended application for judicial review filed by the applicant on 15 November 2024 contains four particularised grounds of review as follows (without alteration, save for the anonymisation of persons who are not a party to these proceedings):
1.The Tribunal’s decision was affected by jurisdictional error in that a fair-minded lay observer might reasonably apprehend that the Tribunal may not have brought an impartial mind to the resolution of the review, in that:
a. On 26 September 2018, the Tribunal, constituted by the same Member, delivered a decision cited as [redacted citation] (Previous Decision) in which:
i.The Tribunal reviewed a decision by a delegate of the Minister to refuse a Partner (Temporary) (Class UK) visa to [Mr Y].
ii.The delegate had refused the visa because the delegate was not satisfied that [Mr Y] was the ‘spouse’ of his wife [Ms Y] as defined in the Migration Act 1958 (Cth) (Act) and the Migration Regulations 1994 (Cth) (Regulations).
b. The findings in the Previous Decision were relevant to the present Applicant’s review before the Tribunal because:
i.[Ms Y] is the mother of the Applicant’s wife; that is, she is the Applicant’s mother-in-law;
ii.The Previous Decision involved issues of fact in common with the Applicant’s review;
iii.The Previous Decision involved a witness in common with the Applicant’s review, being [Ms Y]; and
iv.The Tribunal treated evidence given in the Previous Decision as bearing on the determination of the Applicant’s claims; and
c. The Tribunal:
i.Accepted that [Ms Y] and her husband were overall credible witnesses;
ii.On the basis of [Ms Y’s] and her husband’s affirmed evidence, accepted that they had a mutual commitment to a shared life to the exclusion of all others and that the relationship was genuine and continuing;
iii.And:
1. Made a positive finding that the Applicant’s wife had a ‘partner’ (distinct from her husband); or alternatively
2. Accepted that [Ms Y] and her husband were overall credible witnesses and that the visa criteria were met on the basis of their evidence which included their affirmed evidence that the Applicant’s wife had a partner.
d. The Tribunal made the Previous Decision, including the findings of fact outlined above, before it conducted the hearing in the Applicant’s review, and before it purported to hear the Applicant on those same issues; and
e. The Tribunal did not depart from the findings of fact.
2.The Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to consider a claim (or an integer of a claim) raised squarely by the applicant, a clearly articulated submission of substance or cogent evidence providing substantial support to the applicant’s case, being:
a.Relevant to the ‘nature of the commitment to each other’, that the Applicant and his wife wanted to start a family, had seen a doctor about his wife’s polycystic ovarian syndrome which affected her fertility, they had joined a gym together to help her lose weight to assist in getting pregnant notwithstanding the PCOS, and that she had already lost 6 or 7kg as a result (CB 115-116, 139, 207);
b.Relevant to the ‘social aspects of the relationship’, that:
i.The Applicant and his wife supplied photographs of a birthday card and cake, and a birthday outing (CB171-3);
ii.The Applicant’s wife’s description of social activities engaged in together (“We go to the gym, play badminton, go out to dinner… We go to Unley Road… we go to the Watermark Hotel… my friends come over, we go to my mum’s… we go food shopping. [Redacted], [redacted] and [redacted] come over all the time. [Redacted] lives in the city so she comes over all the time”) (CB208);
iii.The Applicant’s wife’s description of why they did not do more social activities, being that the Applicant had recently moved from Queensland and “all of his friends are in Brisbane”, and that he worked two jobs and “he pretty much comes home, eats and goes to bed, so there’s no real time” (CB208);
iv.Evidence of being invited jointly to a friend’s child’s christening (CB271-3);
v.Evidence of going on holiday together (CB 133)
a.Relevant to the ‘social aspects of the relationship’ and ‘nature of the commitment to each other’, that the Applicant and his wife held a wedding celebration attended by family and friends (CB 135-6 and photos);
b.Relevant to the ‘nature of the household’, the Tribunal considered it significant that there was an ‘absence of other than sparse items of Ms Smith’s clothing’ at their shared home and that Ms Smith stayed at her mum’s house. It was not satisfied that Ms Smith ‘established a household with Mr Sangha as a married couple’ ([72]). It failed to consider:
i.Ms Smith’s corroborating answers, when questioned by the Tribunal, ‘it’s not like I was living there. I would go sleep over when I had school because I only had school then I think about 3 days a week so it’s probably twice of [indistinct] stayed at my mum’s. It’s just easier to get to school’. (transcript, page 34);
ii.That at the time, the Applicant and his wife lived in Unley, and she went to school in Port Adelaide; and
iii.That Ms Smith told the Department officer that “We’re moving soon, closer to my mum’s house to be closer to school” (CB 209).
3.The Tribunal’s decision was affected by jurisdictional error in that it failed to consider (in the sense of applying an active intellectual process or proper, genuine and realistic consideration) the claims, evidence and submissions referred to in ground 2, or to the consequences of joint leases held by the applicant and his wife.
4.The errors in paragraph 2 and 3 were each material to the review in that the decision could realistically have been different had the errors not occurred.
The applicant filed an affidavit along with his original judicial review application on 2 April 2019. The affidavit annexed a copy of the Tribunal’s decision.
The applicant appeared before the Court on 2 October 2024 without legal representation. On that occasion, the hearing was adjourned to allow the applicant to pursue legal assistance and for both parties to respond to a number of concerns which had been raised by the Court. This included a concern in relation to the Tribunal’s reliance upon evidence from the sponsor’s mother (Ms Y) which was said to have come before the Tribunal in “somewhat unusual circumstances”. Those unusual circumstances were not elaborated upon by the Tribunal and counsel for the Minister was unable to clarify further.
The matter proceeded for hearing on 11 December 2024 with the applicant now represented.
The materials before the Court include:
·the amended application for judicial review filed by the applicant on 15 November 2024;
·the affidavit of the applicant affirmed and filed on 2 April 2019 (taken as read and in evidence on 2 October 2024);
·the affidavit of the applicant affirmed and filed on 19 April 2024 (taken as read and in evidence on 2 October 2024);
·the affidavit of Anthony John O’Brien affirmed and filed on 15 November 2024 (taken as read and in evidence at the hearing on 11 December 2024);
·a Court Book numbering 841 pages (marked as Exhibit 1);
·written submissions filed on behalf of the Minister on 8 September 2023;
·written submissions filed on behalf of the applicant on 15 November 2024; and
·written submissions addressing the applicant’s amended application, filed on behalf of the Minister on 5 December 2024.
CONSIDERATION
As outlined above, the amended application for judicial review contains four particularised grounds of review.
Ground one
Ground one contends that a fair-minded lay observer might reasonably apprehend that the Tribunal may not have brought an impartial mind to the applicant’s review. In simple terms, the applicant contends apprehended bias on the part of the Tribunal.
An allegation of bias must be clearly made and distinctly proven (Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [69] and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [22]). The relevant principles for apprehended bias are articulated in various cases, notably CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [17]-[18], [69]-[70] and [131]-[132] (CNY17); FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456 at [32]; and Isbester v Knox City Council (2015) 255 CLR 135 at [12] (Isbester).
The test for apprehended bias is “a test of a ‘double-might’: whether a fair-minded lay observer might reasonably apprehend that the adjudicator might not bring an impartial mind to the fair resolution of the issue to be decided” (CNY17 at [132] per Edelman J).
Two steps flow from that test (Ebner v Official Trustee in Bankruptcy (M131 of 2999) (2000) 205 CLR 337 at [8]; CNY17 (at [56]); Isbester (at [12]); and Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425, cited in SZHBP v Minister for Immigration and Citizenship (2008) 103 ALD 595 at [16]). This two-step test has been adopted by this Court (see, by way of recent example, Jaggi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1267).
The first step requires one to identify what it is that might lead a decision-maker to decide a case other than on the factual and legal merits before it. In essence, this requires the Court to determine what may affect a decision maker’s impartiality by identifying that interest. Such an interest may include but is not limited to: a decision-maker’s failure to disqualify themselves by conduct, by extraneous information, by association, or by a direct or indirect interest in the proceedings (CNY17 at [57]; Isbester at [21]). In Isbester, the High Court clarified that (at [46]):
A “personal interest” in this context is not the kind of interest by which a person will receive some material or other benefit. In the case of a prosecutor or other moving party, it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor’s view of guilt or punishment. It is not necessary to analyse the psychological processes to which a person in such a position is subject. It is well accepted… that it might reasonably be thought that the person’s involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decision-making…
Second, one must demonstrate a logical connection between the thing identified and the suspected deviation from deciding the case on its merits. One must articulate the suggested effect resulting from the claimed interest, influence or extraneous information (CNY17 at [57]; Isbester at [21]).
What lies at the heart of apprehended bias is a concern that there is a rational perception that a decision-maker may have prejudged the matter, or an integral element of the matter, they are to decide. In Isbester, following a reported dog attack, Ms Hughes, who was the Council’s Co-ordinator of Local Laws and was responsible for the regulation of domestic pets, led an investigation into the dog responsible for the attack. Ms Hughes was subsequently part of the Council’s panel which determined the dog’s fate. The Court ultimately determined (at [68]):
Ms Hughes might have developed, as Ms Isbester’s prosecutor, a frame of mind incompatible with the dispassionate evaluation of whether administrative action should be taken against Ms Isbester’s interest in light of Ms Isbester’s conviction. Ms Hughes’ frame of mind might have affected the views she expressed as a member of the panel, and the expression of those views might have influenced not only the recommendation made by the Panel, which included Mr Kourambas, but also the acceptance of that recommendation by Mr Kourambas in his capacity as delegate of the council. Those are all possibilities which fairly arise from the established facts. There is nothing fanciful or extravagant about them. A hypothetical fair-minded observer with knowledge of all of the circumstances would be quite reasonable to apprehend them.
Thus, apprehended bias may be established where a decision-maker has had a prior involvement in a matter that materially bears upon the dispute which they are tasked with resolving (see also QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65 at [80]).
Of course, the Minister is correct to say that the authorities do not require a decision-maker brings a blank mind to proceedings and, as has been observed, one should not confuse prejudgement with predisposition (see Aronson M, Groves M, Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, Lawbook Co., 2022) at [10.190]). Nevertheless, what is required is that a decision-maker must not bring a frame of mind incompatible with dispassionate evaluation (Isbester at [68]). Furthermore, apprehended bias may arise where there is evidence that the same decision-maker has formed a view in respect of the same facts or a witness’s credibility in an earlier case (Livesey v NSW Bar Association (1983) 151 CLR 288 at 294). Similarly, it has been held that “cases where knowledge of some prejudicial but inadmissible fact or circumstance” can give rise to a reasonable apprehension of bias (Webb v The Queen (1994) 181 CLR 41 at 74 per Deane J, cited in CNY17 at [134] per Edelman J).
In written submissions, the applicant submitted that the Tribunal’s decision is affected by apprehended bias, where there is a reasonable apprehension that the Tribunal has made specific findings personal to the applicant and the sponsor, and critical and adverse to his review, before hearing him on his application. Notably, the Member presiding over the applicant’s matter delivered a decision in a prior matter involving the sponsor’s mother (Ms Y) and her husband (Mr Y) (the previous decision). In the previous decision, the applicant submitted that Ms Y and Mr Y were required to give evidence as to the social aspects of the relationship, where the Tribunal found (at [33]):
Both [Mr Y] and [Ms Y] were able to identify the others’ family members and gave consistent evidence on when they had last seen members of [Ms Y’s] family. They consistently named the partner of [Ms Y’s] daughter.
In making this finding in the previous decision, the applicant submitted that Ms Y and Mr Y gave evidence identifying the applicant’s wife as being in a relationship with another man and not the applicant. The applicant also submitted that the previous decision was made the day before the applicant attended his Tribunal hearing, and that Ms Y and Mr Y gave evidence in the applicant’s Tribunal hearing.
The applicant argued that, in light of this, the Tribunal was in a position where it either accepted Ms Y and Mr Y’s affirmed evidence on the issue, or it accepted the evidence of the applicant and his wife. The applicant submitted that the Tribunal’s mind was made up before the entirety of the evidence in the applicant’s matter had been advanced for consideration.
In written submissions, the Minister submitted that there is no general proposition that a decision-maker who has made prior decisions or findings about an individual cannot be involved in a subsequent decision. Rather, the Minister submitted that where a decision-maker has been previously involved in a matter, the question arises as to whether “the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case”. In the context of these proceedings, the Minister submitted that there is no reasonable apprehension of bias for the following reasons:
(a)The Tribunal’s findings in the previous decision simply stated that Ms Y and Mr Y “consistently named the partner of [Ms Y’s] daughter” (at [33]), and did not make a specific finding personal to the applicant and adverse to his review, prior to hearing his application;
(b)The Tribunal was not required to, and did not make, a finding in the previous decision as to who the sponsor’s partner was in the context of the applicant’s visa application;
(c)The Tribunal making a decision about the same or a related matter, even proximate in time, is insufficient to establish such an assertion of apprehended bias;
(d)The Tribunal correctly put the information from the previous decision to the applicant for comment (as per the requirements of s 359AA); and
(e)That all Tribunal Members are required to take an oath or an affirmation that they will perform their duties in office “faithfully and impartially”.
In this matter, the Court has no hesitation in finding that a fair-minded person might believe that the Tribunal member might not have brought an impartial mind in determining this matter. Relevantly:
(a)The Tribunal member had determined the review application in respect of Mr Y;
(b)In that matter, the Tribunal had heard evidence from Ms Y and Mr Y in respect of matters which had a bearing on the applicant’s application, notably evidence relating to:
(i)The applicant and his spouse’s living arrangements and residence; and
(ii)Ms Y’s belief that the applicant’s spouse was in a relationship with Mr X.
(c)The Tribunal decision relating to Mr Y specifically referenced that both Mr Y and Ms Y “consistently named the partner of [Ms Y’s] daughter”;
(d)The Tribunal heard the applicant’s matter the day after it delivered its reasons in respect of Mr Y;
(e)The evidence of Ms Y in respect of Mr Y’s matter was heavily relied upon in the Tribunal’s decision. Indeed, the Tribunal’s reliance upon that evidence underpinned the entire decision; and
(f)The Tribunal relied upon the fact that Ms Y and Mr Y had given affirmed evidence in respect of their matter, but did not accord the equivalent importance to the affirmed evidence of Mr X in his statutory declaration which was contrary to their evidence.
The evidence of Ms Y in respect of her husband’s application was critical to the Tribunal’s determination. In fact, the Tribunal’s acceptance of their evidence that the sponsor was actually in a relationship with Mr X was the central plank of the Tribunal’s reasoning. It appears to be the reason by which the Tribunal rejected all other evidence, including the evidence of Mr X, who disavowed the relationship in a statutory declaration and whose offer to give evidence was inexplicably not taken up by the Tribunal.
The timing is important. The Tribunal had reached its decision in respect of Mr Y on the day immediately before the hearing of the applicant’s matter. It can only be inferred that, in doing so, it had accepted the credibility of Ms Y’s evidence prior to hearing the matter. Having done so, in the Court’s view, a fair-minded person might believe that the Tribunal might not have brought an open mind to the critical question of whether the sponsor was in a relationship with Mr X. A fair-minded person might believe that the Tribunal had already accepted Ms Y’s evidence in that respect prior to hearing from the applicant and his wife. A fair-minded person might view the Tribunal’s unexplained rejection of the evidence of Mr X, and failure to seek out his oral testimony, as being grounded in a decision having already been made by the Tribunal in respect of this issue.
The fact that the Tribunal put the adverse material to the applicant for comment under s 359AA does not remedy the situation. The s 359AA procedure requires the Tribunal to put information to an applicant on the basis that if the Tribunal relied on that information, it might form the reason, or part of the reason, for affirming the decision under review. Clearly, where a fair-minded person might form the view that the Tribunal had already made up its mind about that information, the s 359AA procedure could not unspin the web. In this sense, the Tribunal member found themselves in a position, not unlike Isbester, where it had already invested itself in reaching a decision on the credibility of Ms Y. If it had reached a contrary finding only a day later, that would have undermined its earlier conclusion. A fair-minded person might think that the Tribunal was already too invested in the correctness of its earlier finding to be swayed otherwise.
The Court does not believe that the evidence supports a finding that the decision was affected by actual bias and the applicant does not advance the ground on that basis. Nevertheless, the Court is troubled by the Tribunal’s seemingly deliberate coy reference to the evidence coming before the Tribunal in “somewhat unusual circumstances”. This was raised with the Minister’s counsel at the initial hearing of this matter, who advised they were unaware of the provenance of the material. It was not until the applicant gained representation and an affidavit annexing the previous decision was provided that the circumstances through which (and, importantly, when) the Tribunal had come by this information became apparent. The Court is concerned that this may reveal that the Tribunal was aware that relying upon this information was problematic. However, the Court does not need to resolve that issue and, on the evidence before it, could not make any adverse finding in that respect.
Unfortunately, the Tribunal found itself in a position where it should have known that any findings it made in respect of the genuineness of the applicant’s relationship would be unsound. It would have been prudent for the Tribunal member to recuse themselves once the member had made a finding in respect of the previous decision. At the very least, it should have advised the applicant of the circumstances and invited the applicant to make an application for the Tribunal to recuse itself.
The Court does not lightly make a finding of apprehended bias. Regrettably, in this matter, the Court has reached the conclusion that the claim is made out.
Ground one of the application succeeds.
Ground two
Ground two of the amended application raises a number of matters which the applicant claims were squarely raised and clearly articulated but the Tribunal failed to consider. Those matters related to aspects of the relationship the Tribunal was required to consider in respect of the nature of the commitment to each other, social aspects of the relationship, and nature of the household. To some extent, this ground overlaps with ground three where the applicant asserts that the Tribunal failed to apply an active intellectual process, or proper, genuine and realistic consideration of those same matters.
Given the Court has found that the Tribunal decision is affected by a reasonable apprehension of bias, it is not strictly necessary to consider this ground. Indeed, a finding of bias on the part of a Tribunal (whether actual or apprehended) is so pervasive that there are difficulties in determining the reasonableness of specific findings or omissions. In short, once it is concluded that there is evidence of bias, there can be little faith in the reasonableness of matters which may otherwise have been accepted to be within decisional freedom.
In this case, that is all the more apposite where the Tribunal’s treatment of the evidence in the previous decision differed from the applicant’s matter. For example, the applicant correctly asserts that the Tribunal failed to have regard to the evidence that the applicant and his wife wanted to start a family and, to this end, had seen a doctor in respect of fertility issues. In response, the Minister submitted that it was not a mandatory consideration to consider an intention to have children. The Minister contends that the question actually posed by the Regulations is whether there is any joint responsibility for children. The Minister’s contention somewhat misses the thrust of the applicant’s argument that this was an important integer of the applicant’s claim in respect of the nature of the commitment to each other. In the Court’s view, a shared intention to have children and the steps taken to address any underlying issues in respect of that is certainly evidence that could be regarded as relevant to the nature of the commitment to each other. Putting that to one side, though, what is striking is that in the previous decision, the Tribunal specifically had regard to Mr Y and Ms Y’s evidence that they want to have children in reaching a finding that they had a mutual commitment to a shared life. There are obvious dangers in comparing the findings made in Tribunal decisions; evidence may loom large in one matter but only be peripheral in another for a variety of reasons. Nevertheless, the fact that the Tribunal had regard to an intention to have children in one matter and not in the next gives credence to the applicant’s assertion that the evidence must have been overlooked. It also reinforces the idea that the Tribunal had effectively pre-determined the applicant’s matter.
Differing views may be taken in respect of the applicant’s claim that the Tribunal failed to consider relevant material in respect of the social aspects of the relationship. The Court does not think that the Tribunal was required to refer to each and every piece of evidence that was put forward in respect of the social aspects of the relationship. In particular, the Court does not think material such as photographs of a birthday card and cake, or the invitation to a christening, were necessarily matters the Tribunal was required to expressly refer to. The same cannot be said for the evidence of going on holiday together or the applicant’s explanation for why the couple did not engage in more social activities. These were important matters which warranted consideration, which does appear to be absent. The Court also notes differing treatment in respect of the evidence of the applicant and his wife going to the Watermark Hotel together on occasion and going to visit Ms Y. The applicant claims this was absent from any consideration by the Tribunal. Whilst that in and of itself may seem of little moment, the Court observes again that it is evidence that featured in the previous decision. Once again, it becomes difficult to reconcile the two decisions.
Of course, the Court is not tasked with such a process of reconciliation and, as observed, it would be an error to engage in that process. Nevertheless, it does go some way to demonstrate the perils of the course the Tribunal charted. Essentially, the evidence from the previous decision became entwined with this matter. Where the Tribunal refers to similar evidence in one matter, but not the other, it is suggestive that evidence was either overlooked or ignored as inconvenient.
Much was said at the hearing about the Tribunal’s reference to there being only a ‘few’ photographs and its finding at [89] that:
…I consider the lack of photographs over a lengthy period of the relationship does not support that they have social interaction with others, plan joint social activities or that they hold themselves as a married couple. I am not persuaded I can rely on photographs with Ms Smith’s family or their purported support of the relationship.
The Court has several difficulties with the Tribunal’s findings in this respect.
Firstly, it adheres to a rather archaic view of whether a couple should retain photographic evidence of their relationship, particularly in circumstances where the applicant gave evidence that he frequently changes his SIM card to make calls to India, and the sponsor gave evidence that she always changes her number due to circumstances relating to her father. Secondly, there is no principled (and certainly no explained) reason why photographs with the sponsor’s family are not indicative of an ongoing relationship. Indeed, the glaringly obvious reason for being photographed with your partner’s family is that they think of you as part of their family.
Finally, the reference to there being only a ‘few’ photographs is problematic. The Tribunal does not explain or contextualise what it means by the word ‘few’, but suffice to say that there are over fifty photographs in the materials before the Court. This does not mean they are the only photographs to exist or (in an era where retention of photographs is more transitory) to have existed. There may well have been a contextual basis for the Tribunal to have thought that this is a small number of photographs, but it has not explained why. In the absence of an explanation, the Court finds that a finding that over fifty photographs is a ‘few’ photographs is illogical, and such illogicality is material, given the Tribunal specifically relied upon the small number of photographs as not being evidence of the social aspects of their relationship.
In light of the acceptance of ground one, it is not strictly necessary to make a finding in respect of ground two. Nevertheless, had the Court not accepted there was evidence of apprehended bias, it would have upheld ground two.
Ground three
The applicant further submitted that the Tribunal failed to apply an active intellectual process, or proper, genuine and realistic consideration of the matters raised in ground three. The applicant also argued through this ground that the Tribunal failed to consider the consequences of joint leases held by the applicant and his wife.
The Minister submitted that the Tribunal had expressly referred to the joint lease and utility bills in its decision, and was entitled to rely upon the applicant’s own evidence before the Tribunal that he was solely responsible for the payment of rent and bills. When asked if there were any other legal obligations, the applicant had answered “I don’t think so”. The Minister submitted that “where the parties themselves did not claim that the tenancy agreement led to any legal obligations owed to one another, the Tribunal’s finding was the only one open to it”.
The Court disagrees with the Minister’s submission. Firstly, the Tribunal’s question in respect of legal obligations was clearly premised on the basis of the applicant being responsible for any shared debts: “Any other legal obligations that you owe for her or she owes for you, any debts of hers you’ve taken on or that she’s taken on for you?”. In the Court’s view, the way the question is phrased does not necessarily encompass shared liabilities or expenses which are not debts. Furthermore, the Minister puts it too highly when submitting that the Tribunal’s finding was the only one open to it. A joint lease is a prima facie legal obligation for all of the named parties to the lease. Furthermore, the Tribunal does not engage with the very obvious point that one would ordinarily only expect a person to pay another person’s rent where there is some form of relationship. To find otherwise is arguably an irrational finding, at least absent a cogent explanation.
There is force to the submission that the Tribunal’s indifferent response to the joint lease was one within its decisional freedom. However, absent any actual reasoning, the Court is in the dark as to whether it was unmoved by the legal consequences of the joint lease, overlooked those consequences, or misdirected itself by only considering the applicant’s evidence that he was the person paying rent.
As with ground two, it may be unnecessary to consider this matter given the finding in respect of apprehended bias. Nevertheless, the Court is satisfied that ground three is made out.
Ground four
Ground four is less of a ground per se, but rather an assertion that the pleaded errors in grounds two and three are material (observing that there is no need to establish materiality for successful claims of bias). In the Court’s view, each of the established errors were material.
CONCLUSION
The applicant has succeeded in his application.
Accordingly, the decision will be set aside and the matter will be remitted to the Administrative Review Tribunal for reconsideration.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 14 February 2025
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