Stephen v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 441
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Stephen v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 441
File number(s): MLG 2007 of 2018 Judgment of: JUDGE A KELLY Date of judgment: 6 June 2022 Catchwords: MIGRATION – Apprehended bias – Judicial review of decision of Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) (Subclass 485) visa – where decision maker paid regard to all the circumstances of relationship between applicant and sponsor as set out in the regulations – where Department visited applicant’s parent’s home in India and conducted interviews there – where applicant and sponsor gave evidence at Tribunal hearing – where Tribunal was not satisfied the applicant’s relationship with the sponsor was genuine – applicable principles – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5CB, 5F, 31, 65, 474, 476
Migration Regulations 1994 (Cth), reg 1.15A, Sch 2 cl 801.221
Cases cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Craig v South Australia (1995) 184 CLR 163
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZOUO v Minister for Immigration (2015) 297 FLR 190SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 24 May 2022 Place: Melbourne Solicitor for the applicant: Carina Ford Counsel for the applicant: Mr S. Sharify Solicitor for the first respondent: Australian Government Solicitor Counsel for the first respondent: Mr M. Hosking ORDERS
MLG 2007 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAMUEL SHARON THILLUVALURI STEPHEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
6 JUNE 2022
THE COURT ORDERS THAT:
1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship and Multicultural Affairs.
3.The amended application dated 4 May 2022 be dismissed.
4.The applicant pay the costs of the first respondent fixed in the sum of $7,853.
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
KELLY A, J
Introduction
By amended application filed on 4 May 2022, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 June 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant a Partner (Residence) (Class BS) (Subclass 801) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
The sole ground of review advanced by the amended application was that the decision under challenge was tainted by apprehended bias. For the reasons which follow, I am unable to accept that jurisdictional error is demonstrated in the decision or the process by which it was made.
Background
The applicant a male citizen from India now aged 36 years first arrived in Australia in 2009 having previously held a student visa. On 28 August 2012, the applicant lodged an application for a combined partner visa (being comprised of the Partner (Temporary) (Class UK) (Subclass 820) and the Subclass 801 visa), doing so on the basis of a spousal relationship with a sponsor, Ms Bui, an Australian citizen.
On 6 February 2014, the Department requested from the applicant further evidence to support his claim that he and Ms Bui were validly married under Australian law, had a mutual commitment to a shared life to the exclusion of all others and had a relationship that was genuine and continuing and that they lived together. On 1 April 2014, the applicant was granted a temporary partner visa until a decision was made in respect to his visa application.
On 10 December 2014, the applicant departed Australia, later returning on 3 January 2015.
On 23 June 2015, the Department visited the residence in India of his applicant’s parents where interviews were conducted of his brother, cousin, a neighbour and his parents. During those interviews, the Departmental officers were told that the applicant had been previously married and that the marriage (to an Indian national) had occurred during his visit to India in 2014. Information supplied by those persons indicated the applicant had married his cousin and that the marriage ceremony in Hyderabad had been attended by some 3,000 persons. Further, the persons interviewed denied knowledge of the applicant’s relationship in Australia with Ms Bui.
On 20 October 2015, the Department notified the applicant of the visit that had been made to his parents’ home in India and he was invited to comment upon the information that was provided during the interviews conducted there. Although granted an extension to provide information in response to that information (on 17 November 2015, 31 December 2015 and 2 February 2016), over that four month period, the applicant did not respond to the invitation.
On 17 May 2016, the Minister made a decision to refuse to grant the applicant a visa, doing so on the basis that information gleaned from the applicant’s documentation and interviews conducted by the Department suggested the applicant was not the spouse or de facto partner of the sponsor as defined in ss 5F or 5CB of the Act and, as such, the applicant did not meet sub-cl 801.221(2) of the Migration Regulations 1994 (Cth) (regulations).
On 7 June 2016, the applicant lodged an application for review of the decision by the Tribunal.
On 6 April 2018, the Tribunal invited the applicant to attend a hearing on 30 April 2018. Responding to that invitation, on 12 April 2018, the applicant informed the Tribunal of his intention to attend the hearing and requested the release of information kept on file by the Tribunal. On 27 April 2018, the applicant informed the Tribunal of several other witnesses he wished to attend to give oral evidence and further submitted a written submission. After a series of adjournments, on 5 June 2018, the Tribunal conducted a hearing.
Tribunal’s decision
On 7 June 2018, the Tribunal made a decision affirming the Minister’s decision to refuse the visa application and provided a copy of a statement of reasons for doing so (Reasons). The Tribunal was not satisfied the applicant’s relationship with the sponsor was genuine:
44.The Tribunal has considered the totality of the couple’s circumstances. The Tribunal acknowledges that some aspects of the relationship point to its genuine nature, but the Tribunal has considerable concerns about other aspects. The Tribunal has formed the view that the couple do not share their finances in any meaningful way, and while the Tribunal accepts that they may live at the same premises, the Tribunal is not satisfied they have established a joint household. The Tribunal has formed the view that the parties take little interest in each other’s affairs and that the applicant is reluctant to inform his friends and relatives about the relationship. The Tribunal has formed the view that the parties do not have a mutual commitment and do not view their relationship as a long term one. Overall, the Tribunal is not satisfied that at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied the applicant meets cl.801.221. . .
Procedural history
On 11 July 2018, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit deposed by his solicitor sworn on the same day and to which she exhibited a copy of the Tribunal’s decision and Reasons.
By a response filed 31 July 2018, the Minister opposed the application seeking its dismissal on the ground that the decision under review was not affected by jurisdictional error.
On 4 May 2022, the applicant filed an amended application, abandoning his original grounds of review and advanced in their place a single, particularised ground of review.
Statutory framework
The Regulations may prescribe criteria for a visa: Act, s 31(3). Relevantly to this matter,
cl 801.221(2)(c) of the regulations requires that at the time of a decision an applicant is the ‘spouse’ of his or her ‘sponsoring partner’.As relevant to a partner visa, s 5F supplies a definition of the term Spouse which reads:
(1)For the purposes of the Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
In forming an opinion upon the criteria in s 5F(2), regard must be had to all the circumstances of the relationship as set out in reg 1.15A(3) which includes the following matters:
(3) The matters for subregulation (2) are:(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
Judicial review
If the decision is a privative clause decision, it is not amenable to judicial review: Act, s 474(2). A decision upon the merits review of a visa application is not amenable to judicial review unless it is vitiated by jurisdictional error: Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76].
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Ground of review – apprehended bias
The sole ground of review in the amended application for review (omitting underlining) reads:
The Second Respondent (Tribunal) fell into jurisdictional error by engaging in conduct that would give rise to a reasonable apprehension of bias.
PARTICULARS
1.1 At hearing, the Tribunal asked questions of the Applicant and his supporting witnesses, the reasonably perceived purpose of which was to find any contradictions between the statements of the witnesses and the material provided in support of the application, regardless of the importance of such contradictions to the issue of whether the Applicant was the Sponsoring Partner’s spouse.
1.2The Tribunal relied on these inconsequential contradictions, and made irrational adverse findings of fact in support of its ultimate conclusions that the relationship between the Applicant and Sponsoring Partner was not genuine.
As the particulars to the amended ground of review disclose, the applicant contends apprehended bias is made out because, on proper analysis, the Reasons demonstrate the Tribunal was seeking to identify any discrepancy in the materials as to justify its findings. The particular aspects of the Tribunal’s conduct relied upon as establishing apprehended bias were identified in the careful submissions of counsel for the applicant and are addressed below.
Applicable principles – bias
The applicable principles were not in dispute. At the outset, the test for reasonable apprehension of bias is to be distinguished from the test for actual bias and is whether the evidence establishes that a fair-minded lay observer might reasonably apprehend the Tribunal might not have brought an impartial and unprejudiced mind to the applicant’s case for review.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the application for testing bias involves identification of what it is said might lead the decision-maker to decide the case other than on its legal and factual merits; articulation of the logical connection between that matter and a departure from deciding the case on its merits; and assessment of whether, in all the circumstances, the fair-minded lay observer might reasonably apprehend that such a departure might occur. The test for apprehended bias requires the court to consider what it is that might lead a decision-maker to stray from the merits of the case, and then to articulate a logical connection between that thing and the feared deviation from the merits. In CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, the test “does not depend on anything which happens at the time of decision, or later”.
As counsel for the applicant submitted, a key feature of the relevant statutory context, when making findings upon, for example, the genuineness of a relationship, is that Tribunal hearings are conducted in the context of the inquisitorial decision-making regime under the Act: see, Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at [27] (Gleeson CJ, McHugh, Gummow and Hayne JJ); NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 (NADH) at [19] (Allsop J; Moore and Tamberlin JJ agreeing); SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [24], [34] (Flick J; Allsop CJ agreeing); SZOUO v Minister for Immigration (2015) 297 FLR 190 at [25] (Judge Manousaridis) (SZOUO).
Submissions
The applicant submitted that, in the same way as SZOUO, the Tribunal asked questions of the applicant’s supporting witnesses and made findings that expose a reasonable apprehension of bias (from [14] to [17] of the applicant’s submissions):
14.The Tribunal conducted a hearing in 2018 with the Applicant, the Applicant’s parents, the Sponsor, the Sponsor’s daughter, the Sponsor’s friend, the Sponsor’s ex-husband, and the Sponsor’s son giving evidence.
15.It is submitted that the Tribunal asked questions of the couple and their supporting witnesses, with inconsequential or understandable contradictions in the answers being used by the Tribunal to support findings that the relationship was not genuine.
16.The Tribunal also made findings which were irrational and appear to have little to no bearing on the question of whether the relationship was genuine.
17.Taken as a whole, it is submitted that these matters give rise to the reasonable apprehension that the Tribunal did not bring an objective mind to the task of determining whether the relationship was genuine.
The applicant addressed each of those matters as described above, from which bias was said to be disclosed. While the submissions at [14] were introductory and [16]-[17] were essentially conclusory, the heart of the complaint lay in [15] above; namely, that the questions posed by the Tribunal were framed so as to give rise to inconsequential contraditions.
While some of the applicant’s submissions were framed in terms of illogicality or irrationality, counsel made plain that the use of those terms was not intended to engage principles of legal unreasonableness but instead as a label or shorthand characterisation of the conduct which bespoke a conclusion of apprehended bias.
The respondent submitted that the applicant’s submissions sought to isolate and criticise particular aspects of the Tribunal’s reasoning, and thereby paint those isolated aspects of the Tribunal’s reasoning as demonstrating that the Tribunal had not brought an open mind to the review. The respondent submitted that when the Tribunal’s decision record was read fairly and as a whole, there was nothing in any of the impugned aspects of the Tribunal’s reasoning, either considered individually or in combination, which permitted an inference that a fair-minded observer might reasonably have apprehended that the Tribunal might not bring an impartial mind to the review. The respondent further contended that a wide range of matters were covered in detail by the Tribunal before it concluded that it was not satisfied the applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that the relationship was genuine and continuing.
Resolution
Particular reliance was placed upon SZOUO v Minister for Immigration & Anor (2015) 297 FLR 190, as illustrating the type of conduct which might properly attract such a characterisation. There the nature of questions posed by a Tribunal to a person whose visa application was grounded upon their Christianity were apparently directed to ascertaining the applicant’s depth of knowledge on a number of biblical references at [30] (from the Book of Genesis, the identity of the first recorded murder victim; the object being carried by the dove flying from Noah’s Ark; the nature of the plague which beset Egypt and the name of Moses’s sister). It was perhaps, entirely unsurprisingly that the court had little difficulty in concluding that the nature of such questions were more designed to trip up the applicant on her lack of general knowledge than to determine whether she had genuinely held a Christian belief: (2015) 237 FLR 190, [32]. In reaching that conclusion, the court applied the principle stated by von Doussa J in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, [38]. Contextually, I note that von Doussa J dismissed a challenge based upon apprehended bias and in doing so, observed that the mere fact a Tribunal had made adverse findings against an applicant did not give rise to an inference of bias.
The foregoing principles from SCAA have been cited on many occasions.
The transcript of the hearing before the Tribunal was not in evidence.
The applicant accepted it would be a rare and exceptional case where a reasonable apprehension of bias could be demonstrated solely from the published reasons for a decision and acknowledged that in this case no transcript of the hearing had been adduced in evidence. In my view, while epithets such as ‘rare’ and ‘exceptional’ may be of some use as indicating that an applicant asserting apprehended bias faces a high bar, the adoption of such conclusory terms should not be permitted to distract attention from the settled principles to be applied in such cases. Equally, it has long been settled that an allegation of apprehended bias must be firmly established and that a conclusion of apprehended bias is not to be reached lightly: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J). See also R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553 (the Court); SZRUI [2013] FCAFC 80 at [22] (Flick J).
Individual aspects of the Tribunal’s reasoning
The applicant grounded his application upon the combined effect of the Tribunal’s treatment of matters relating to (i) the sponsor’s Centrelink debt; (ii) the applicant’s superannuation policy; (iii) the applicant’s knowledge of the sponsor’s criminal convictions; (iv) the applicant not accompanying the sponsor to court; (v) the applicant’s relationship with his stepdaughter; and (vi) placing more weight on unfavourable evidence.
In the way in which the applicant’s submissions were framed it was said that the reasons indicated the Tribunal was clutching at any inconsistency, which together with others, would demonstrate that the parties’ relationship was not genuine.
While I address them in turn, I note that the applicant’s submissions sought to isolate and criticise particular aspects of the reasoning, and to paint those isolated aspects as demonstrating that the Tribunal had not brought an open mind to the process of review. As counsel for the Minister correctly submitted, a fair-minded lay observer would be taken to be aware of the nature of the application for review before the Tribunal and, at least in broad terms, the key features of the criteria prescribed by the regulations and that the grant or refusal of the visa application depended upon ministerial satisfaction of those criteria.
I also accept that such a fair-minded observer would reasonably expect that in the course of the inquisitorial process to be undertaken upon a merits review under the Act, the applicant would be confronted with matters which may have brought his version of events into question, including those which the decision-maker found to be troubling and where the evidence adduced raised doubts to be explored. So much was common ground.
(1) Centrelink debt
In addressing whether other requirements for a spousal relationship were met, the Tribunal acknowledged some evidence indicated the parties’ finances were shared but concluded, on the whole of the evidence, it was not satisfied that they did so: [14]. The Reasons examined several aspects of the parties’ financial arrangements, one of which related to when the sponsor had first informed Centrelink of the parties’ relationship: [14(c)]. It also addressed the account to which the applicant had deposited his Centrelink payments and the type of Centrelink payments being received by the sponsor at a time when she was working: [18], [21(c)].
The applicant correctly submitted that the Tribunal had accepted that both the applicant and the sponsor were familiar with the Centrelink debt and that they may not have been expected to recall the precise amount or to give evidence which mirrored that of the other. However, it was submitted the inability of the applicant and the sponsor to have a more precise recall about this issue did not ground an adverse (‘baseless’) finding as to their credit on this issue.
I agree in the submission of counsel for the Minister that it was open to the Tribunal to take into account the significant difference in the answers given by the applicant and the spouse in relation to the quantum of this debt. I also agree that this finding served to underpin the more general finding that the applicant and spouse had limited knowledge about the financial affairs of the other and that they did not meaningfully discuss their finances: [14]-[15].
It cannot be said that the Tribunal simply ignored the explanations which were given by the applicant. To the contrary, it clearly considered them but was not satisfied of and did not accept those explanations.
(2) Superannuation
The Tribunal at [18] found it odd that while the applicant had thought about changing the nominated beneficiary of his superannuation fund, at the same time, had not thought about changing his pay arrangements so that his pay would be deposited to a joint account: [18]. Contrastingly, the sponsor’s evidence was that she had “thought about it” and had made arrangements for her Centrelink payments to be deposited to her own account and her pay to be deposited to a joint account. Overall, the Tribunal concluded the parties’ arrangements were deliberately settled to separate their finances: [18].
Counsel for the applicant pointed up the marked distinction between arrangements relating to the nomination of beneficiaries under a superannuation scheme on the one hand with those concerned as to the account to which pay or other entitlements might be deposited. It was also submitted to be quite common for parties’ incomes to be deposited to separate accounts.
So much might be accepted. Indeed that was the Tribunal’s finding at [18]. I do not accept that the use of the expression “odd” in the context in which it was employed in the Reasons at [18] is in anyway supportive of an inference of apprehended bias. I also agree that the applicant simply invites the Court to disagree with the merits of the Tribunal’s findings of fact.
(3) Sponsor’s criminal convictions
The Tribunal found the applicant had limited knowledge about the sponsor’s criminal convictions: [21(c)]. This was but one of the three factors relied upon by the Tribunal as serving to inform its concern as to the parties’ claim to cohabitation.
In the way in which the applicant’s submissions were framed, attention was drawn to the sponsor’s National Police Certificate that was reproduced and demonstrated convictions over the period 1996-2012 variously relating to offences of dishonesty, the keeping of a common gaming house, trafficking or possession of heroin and entering a casino whilst being subject to an exclusion order. Counsel for the applicant emphasised that all convictions predated the parties’ relationship. Counsel for the respondent submitted the Tribunal was entitled to take into account that the applicant had a limited knowledge of the sponsor’s criminal history.
As stated above, the Tribunal’s finding that it had concerns as to the parties’ claim to cohabiting was based upon several matters, one of which included the applicant’s ignorance of the sponsor’s criminal history. More particularly, while his evidence had been that the sponsor had spent two years in jail, the national police certificate indicated that in December 2002, the sponsor had been sentenced to a term of imprisonment for three years and nine months. Before me, there was no exploration of the possibility that both of those propositions may be true (that is, the sponsor may have been granted parole after two years).
From my review of the Reasons, nothing in the way in which the Tribunal approached this topic or the manner in which evidence about these convictions was employed suffices, whether alone or in combination with the other matters relied upon, to support an inference of apprehended bias. I consider the Tribunal’s treatment of this topic to be quite unremarkable.
(4) Accompanying the sponsor to court
Next, attention was drawn to the Tribunal’s consideration of whether the applicant and sponsor provided one another with comfort and emotional support. Again, one of the three factors referred to by the Tribunal at [40(c)] as undermining an affirmative finding that the parties did provide such support was that the applicant had not accompanied the sponsor to court in 2012 when she was convicted for a series of offences relating to the handling, receipt and retention of stolen goods. From the reasons the applicant told the Tribunal he had not accompanied the sponsor to court on this occasion because she had not asked him to do so.
The Tribunal observed that the parties had been in a relationship for about 12 months at this time and regarded it as a factor that signified a lack of commitment and emotional reliance by the parties upon one another.
I agree in the submissions of counsel for the respondent that it was open to the Tribunal to take into account the absence of the applicant in court when she appeared to answer these charges. Nothing in the approach taken indicates that a fair-minded observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the question it was required to consider.
(5) Applicant’s relationship with stepdaughter, and Sonia
As noted above, when the applicant was still (and relatively recently) married to the sponsor, he had participated in December 2014, in a ‘commitment ceremony’ to a woman named Sonia in India. While the Tribunal accepted this engagement was subsequently broken off, it considered the ceremony cast doubt on the relationship of the applicant and sponsor.
The Tribunal was also concerned that the applicant’s stepdaughter was unaware of this ceremony. The applicant submitted that the Tribunal could not seriously expect the stepdaughter to have been aware of the ceremony and asked how a failure to disclose the commitment ceremony to the stepdaughter had any bearing on whether or not the applicant had a close relationship with the stepdaughter as he claimed. The applicant complained that the issue of the stepdaughter’s lack of knowledge with respect to the commitment ceremony was one of the factors relied upon to support the Tribunal’s findings as to the absence of a close relationship with those stepchildren.
The Tribunal addressed this issue at [24]. I agree that in making a finding as to the absence of a close relationship with these children, the Tribunal took into account many matters of which this was but one. Counsel for the respondent correctly observed it would be expected that the decision record would focus in part upon matters adverse to the applicant as the Tribunal’s Reasons were provided to identify the material facts for affirming the decision under review. By extension, insofar as the applicant’s submissions complained of matters that were not mentioned in those Reasons, I agree that this criticism is not valid having regard to the function to be performed by the Tribunal when providing reasons.
(6) Treatment of favourable evidence
The applicant also drew attention to what was described as the ‘summary dismissal’ of documentary evidence that was provided in support of the application: [10]. It was submitted the reference to and dismissive attitude taken towards this evidence indicated an extreme attitude supportive of an inference of apprehended bias particularly when contrasted with the approach taken by the decision-maker to adverse material. Relatedly, attention was given to the finding of the Tribunal that the applicant had ‘simply memorised the information he thought he may be asked but had no deeper interest in the children’s affairs’: [24].
In the course of oral submissions, counsel for the applicant also drew attention to the manner of the Tribunal’s reasoning at [4] and [38] and which were relied upon as being indicative of apprehended bias on the part of the decision-maker. For these purposes I have re-examined the whole of the Reasons and, contrary to the applicant’s submissions, accept the Tribunal was giving reasons for deciding to affirm the delegate’s decision. For those reasons, the Tribunal’s decision record necessarily contained findings adverse to the applicant.
Conclusion
Having regard to each of the matters relied upon, whether individually or taken as a whole,
I am not persuaded a fair-minded observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the question on merits review whether it had been satisfied that the criteria for the grant of the visa, and in particular those prescribed by the regulations, had been satisfied. Nor am I satisfied there has been the demonstration of a logical connection between the matters so identified and a departure from the consideration of those criteria on their merits.
Accepting the fair-minded lay observer would be taken to be aware of the inquisitorial nature of the process including, in at least, broad terms, the applicable criteria, I am not persuaded that such an observer would regard the manner in which the Tribunal dealt with the issues before it (and in some cases in robust terms) as supporting an inference of apprehended bias. For the avoidance of doubt, and putting aside the rare and exceptional threshold suggested in cases where the challenge relies upon the reasons of the decision-maker alone, the allegations in this case are not firmly established.
The application should be dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 6 June 2022
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