Tadese v Minister for Immigration
[2020] FCCA 1885
•10 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TADESE v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1885 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – extension of time application – Minister consenting to the extension of time – matter proceeding as a final hearing – partner visa – DNA test showing that the likelihood of the applicant and his wife being half-siblings compared with unrelated individuals was 66 to 1 – half-sibling relationship a prohibited degree of relationship – Tribunal not satisfied that the applicant and his wife were not within a prohibited relationship – therefore, Tribunal not satisfied applicant and his wife were spouses or in a de facto relationship. |
| Legislation: Marriage Act 1961, ss.23B(2), 88D, 88F, 88G Migration Act 1958, s.477(1), 477(2) Federal Circuit Court Rules 2001, r.44.05(2)(c) |
| Cases cited: Briginshawv Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34 |
| Applicant: | DANIEL A TADESE |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1580 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 21 May 2020 |
| Date of last submission: | 21 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 10 July 2020 |
REPRESENTATION
| Counsel for the applicant: | Rolf Sorensen |
| Solicitors for the applicant: | Goz Chambers Lawyers |
| Advocate for the first respondent: | Keith Sypott |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
Pursuant to s.477(1) of the Migration Act 1958, the time for the applicant to file an application in this court be extended to 21 July 2017.
The requirement in r.44.05(2)(c) of the Federal Circuit Court Rules 2001, to file an affidavit explaining the delay in filing these proceedings, be dispensed with.
The application filed on 21 July 2017 and amended on 24 April 2020 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG1580 of 2017
| DANIEL A TADESE |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for an extension of time to review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant’s wife a partner visa.
Extension of time application
The Tribunal’s decision was made on 12 June 2017. Under s.477(1) of the Migration Act 1958 (“the Act”), any application to this court is to be filed within 35 days of the date of the Tribunal’s decision. The application to this court was not filed until 21 July 2017. Consequently, the application was four days late. As such, the applicant required an extension of time in which to bring the application. Under s.477(2) of the Act, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.
In the present case, the Minister consented to the extension of time. In the circumstances, I consider that it is appropriate to grant an extension of time in this case.
In addition, the Minister noted that the applicant had failed to file an affidavit explaining his delay, in contravention of r.44.05(2)(c) of the Federal Circuit Court Rules 2001. The Minister proposed that the court make an order dispensing with the requirements of that rule. That is sensible, and such an order will be made.
Substantive application
Notwithstanding that the application required an extension of time, a registrar listed the matter for final hearing before Judge McNab on a specified date. As all migration matters are now in the registrar’s docket, the matter was relisted to me. The notice of listing simply said that the matter was listed for hearing. Once it was clear that the Minister consented to an extension of time, the parties were content to proceed with the matter as a final hearing on the allotted day, so that occurred.
At the final hearing, the applicant relied on his written submissions, save that he referred to some additional authorities. The Minister relied on his written submissions and made two additional points which are addressed below.
The applicant’s claims
In his written submissions filed on 7 May 2020, the Minister summarised the applicant’s claims as follows:
4.The applicant is an Australian citizen, having acquired Australian citizenship on 25 August 2011.1 His wife, the visa applicant, is an Ethiopian national.
1 Court Book (CB) 81.
5.On 7 May 2012 the visa applicant applied for the visa on the basis that she was married to the applicant.2
2 CB 16-126.
6.On 4 September 2012 a delegate wrote to the visa applicant advising that she had noticed a resemblance between the visa applicant and the applicant and that she considered they may be related as siblings. The delegate asked that the visa applicant and applicant undertake DNA testing.3 The applicant and visa applicant provided DNA samples for testing.
3 CB 133-136.
7.On 20 November 2012 Genetic Technologies provided a report on their analysis of the DNA samples. The report relevantly stated that:
7.1.it was just as likely that the visa applicant and applicant were unrelated individuals as they were biological full siblings; and
7.2.it was 66 times more likely that the visa applicant and applicant were half-siblings than that they were unrelated individuals and that this was ‘moderately strong evidence’ to support the proposition that they were related as biological half- siblings.4
4 CB 141-143.
8.The applicant was invited to comment on the findings of the report. By way of a letter dated 11 January 2013 the visa applicant stated that he and his wife were puzzled by the test results, that they believed there was an error during the sample collection or testing process and that they would like another chance to take a DNA test.5
5 CB 148-149.
9.On 31 July 2013 the Department asked Genetic Technologies whether the DNA test results might indicate a cousin relationship and whether, if the visa applicant and the applicant were to undergo the same test, the results may differ. Genetic Technologies responded on 1 August 2013, advising that:
9.1.a cousin relationship was not tested for and they did not offer such testing;
9.2.the sibling test was based on how much DNA was shared between the visa applicant and the applicant;
9.3.if the visa applicant and applicant were cousins they would share less DNA than if they were half-siblings;
9.4.as a result of the DNA shared between the visa applicant and applicant, the chances of a cousin relationship was lower than a half-sibling relationship, but ‘possible’; and
9.5.undertaking the DNA test again would produce the same result.6
10.… The delegate found that the visa applicant and the applicant were half-siblings and, as a result, the visa applicant was not the spouse or de-facto partner of the applicant.7
6 CB 155-156.
7 CB 164-168.
The proceedings in the Tribunal
In his written submissions filed on 7 May 2020, the Minister summarised the proceedings before the Tribunal as follows:
The first Tribunal decision
11.On 2 May 2014 the applicant lodged an application for review of the delegate’s decision with the Tribunal.8
8 CB 172-183. At this time, the Tribunal was the ‘Migration Review Tribunal’.
12.On 23 February 2015 the Tribunal held a hearing, and granted the applicant until 10 March 2015 to provide a further DNA report addressing the reliability of the 2012 DNA report.9 An extension to 31 March 2015 was granted after the applicant advised that he and his wife had engaged Bioservices Pty Ltd with a view to obtaining a further DNA report.10
9 CB 200-202.
10 CB 204-205, 209-210.
13.On 1 April 2015 the applicant sent the Tribunal a letter advising that more time was required in order to provide further DNA evidence. It was said that the specimen collection agencies in Ethiopia would not assist until there was a letter from the Tribunal advising that a DNA sample was required.11
11 CB 211.
14.On 2 April 2015 the Tribunal affirmed the delegate’s decision.12
12 CB 215-221.
Remittal to the Tribunal
15.On 10 May 2016 her Honour Judge Jones made orders by consent quashing the Tribunal’s decision and remitting the application to the Tribunal to be determined according to law. The notation to those orders provides that:
In making its decision, the Second Respondent fell into jurisdictional error by unreasonably refusing to further adjourn the review to provide the applicant and sponsor with an opportunity to undertake another DNA test.13
16.On 21 June 2016 the applicant sent submissions and material to the Tribunal highlighting that his son had been granted Australian citizenship by descent and that this had occurred after a DNA test concluded that this child was his and the visa applicant’s biological child.14
17.On 12 December 2016 the Tribunal sent the applicant a letter offering the him further time to undergo DNA testing disproving a sibling relationship with the visa applicant.15 In response, the applicant advised that he did not consider further DNA testing was necessary in light of the DNA test undertaken in late 2015, which confirmed the parentage of his son.16
18.On 16 March 2017 the Tribunal held a hearing.17 The applicant provided further submissions post-hearing.18 On 12 June 2017 the Tribunal affirmed the delegate’s decision.19
13 CB 224-225.
14 CB 235-245.
15 CB 247-254.
16 CB 261-276. See, in particular, CB 264 at [9].
17 CB 307-310.
18 CB 311-317.
19 CB 321-330.
The Tribunal’s reasons for decision
In his written submissions filed on 7 May 2020, the Minister summarised the Tribunal’s reasons for decision as follows:
19.The Tribunal’s decision record recounts that, at hearing, it urged the applicant, if he considered that the 2012 DNA test results were defective, to undergo further DNA testing and indicated that it was prepared to wait ‘however long it may take’ if the applicant wished to pursue a further DNA test: [20].
20.The Tribunal was concerned by two post-hearing submissions made by the applicant’s representative.
20.1.First, it was erroneously claimed that the applicant had not given evidence at hearing. It recalled that the applicant had given oral evidence and that this was evidenced by the hearing record.
20.2Second, the Tribunal rejected the suggestion that at hearing it had contended that the applicant’s application would not succeed as a matter of law without a DNA report countering the 2012 DNA report, and noted that it had stated at hearing that ‘it may place greater weight on the 2012 DNA report, given the review applicant’s refusal of the Tribunal’s offer to undergo further DNA testing’: [22]-[24].
21.The Tribunal noted that the issue before it was whether the visa applicant satisfied cls 309.211 and 309.221 of Sch 2 to the Regulations, and that this required the consideration of whether, at both the time of the visa application and at the time of the Tribunal’s decision, the applicant was the spouse or de facto partner of an Australian citizen or permanent resident or eligible New Zealand citizen: [25].
22.The Tribunal noted that s 5F of the Migration Act 1958 (Cth) (the Act) provided that a person is the ‘spouse’ of another person if those two persons are in a married relationship. It outlined the relevant criteria for a ‘married relationship’, including that persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act20: [26].
23.The Tribunal noted that s 23B(1)(b) of the Marriage Act 1961 (Cth) (the Marriage Act) provided that a marriage in Australia is void if the parties are within a ‘prohibited relationship’ and that s 88D(2)(c) of the Marriage Act rendered foreign marriages invalid if the parties are in a prohibited relationship. It also noted that s 23B(2)(b) of the Marriage Act provided that a marriage between a brother and sister, whether of full blood or half blood, was a prohibited relationship. Accordingly, it observed that if the applicant and visa applicant were related as half-siblings, their marriage would be invalid for the purposes of the Act, irrespective of whether their relationship was genuine and continuing: [36].
24.The applicant’s representative had submitted, with reference to the Procedures Advice Manual 3 (the PAM3), that little weight should be given to the applicant’s decision to not undergo such testing: [37]. The Tribunal noted that the PAM3 did not bind it and that the situation before it differed from other cases where DNA testing had yet to occur. It also noted that the matter had been remitted to it on the basis that the Tribunal, as previously constituted, had unreasonably refused to adjourn the review in order to enable the applicant to undertake another DNA test: [38].
25.The Tribunal had regard to the applicant’s evidence that he was ‘shocked’ by the results set out in the 2012 DNA report, that there was an ‘initial investigation’ prior to his marriage by family members that concluded that he and the visa applicant were not related and that, after receiving the 2012 DNA test results, he and the visa applicant consulted their respective families who had confirmed that there was no biological connection between the applicant and visa applicant: [44].
26.The applicant had claimed that he and the visa applicant had not undertaken further DNA testing as they found the 2012 DNA test process to be ‘humiliating, and emotionally and financially stressing’. The Tribunal rejected this claim, citing the applicant’s statements to both the Department and Tribunal (as previously constituted) that he and the visa applicant wished to undertake further DNA testing to prove that the conclusions in the 2012 DNA report were incorrect: [46]-[48].
27.The Tribunal accepted that the conclusions in the 2012 DNA report were not definitive; however, it noted that this analysis was scientifically undertaken and that the report assessed the most likely relationship between the applicant and visa applicant. Such an assessment was, in the Tribunal’s view, ‘probative evidence’ and ‘extremely relevant’: [49].
28.In relation to the 2015 DNA test, the Tribunal noted that this test only involved the applicant and his son, and that it offered no assessment of whether there was a biological relationship between the applicant and visa applicant. The Tribunal did, however, accept that the 2015 DNA test evidenced that the applicant’s son was the biological child of the applicant and visa applicant”: [50].
29.The Tribunal placed significant weight on the 2012 DNA test report in making its assessment of the validity of the marriage. It also placed significant weight on the applicant’s refusal to participate in further DNA testing, notwithstanding that this was the specific reason for the remittal of his application by this Court in 2016. The Tribunal found that the applicant and visa applicant were related by family, notwithstanding the evidence that their relationship was genuine and that they, and their wider circle of friends and family, may not have been aware of this biological connection. It concluded that it was not satisfied that the applicant and visa applicant were not within a prohibited relationship and that, therefore, they were not married to each other under a marriage that was valid for the purposes of the Act: [51]-[52].
30.As to any de facto relationship, the Tribunal was not satisfied that the parties were not related by family. It concluded that s 5CB(2) of the Act was not satisfied, and that the visa applicant was not the de facto partner of the applicant: [53]-[56].
20 Act s 5F(2)(a). See also s 12.
Grounds of review
The application has nine grounds of review, most of which have multiple sub-grounds. By my count, the application has 26 grounds or sub-grounds. I will address them in the order set out in the application.
Ground 1
The first ground of review in the application is:
The Second Respondent failed to review the decision of the Second Respondent, or to address itself to whether or not grounds existed on which it should be satisfied that the Applicant and his wife were not related by family; by: …
There then followed a number of sub-grounds, as follows.
Ground 1(a)
The first aspect of ground 1 is as follows:
a.failing in Paragraphs 3, 38, 44 and 49 of its Decision to state any sufficiently clear or rational basis for its conclusion at Paragraph 49 that the results of the 2012 DNA test were probative and extremely relevant evidence, by not stating what these results indicated was the actual likelihood of the Applicant and his wife being siblings …
The relevant paragraphs of the Tribunal’s reasons for decision were as follows:
3.The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 and cl.309.221. The delegate relied on a DNA test result (‘the 2012 DNA test result’) to find that the review applicant and the visa applicant are half-siblings:
Based on the autosomal STR results presented on Table 1, the statistical likelihood of Daniel Tadese and Genet Hailu Abebe being related as biological half siblings, compared to unrelated individuals, was calculated as 66 to 1. Based on the above statistical analysis of the autosomal STR results, there is moderately strong evidence to support the proposition that Daniel Tadese and Genet Hailu Abebe are related as biological half siblings.
[This quotation is from the Genetic Technologies Corporation Pty Ltd report dated 20 November 2012.]
…
38.The Tribunal notes that PAM3 is not binding on it. However, this case differs in any event in that there is already DNA test result evidence from 2012 which the DNA lab considered constitutes moderately strong evidence that the review applicant and the visa applicant are related as biological half siblings. Furthermore, this case was remitted by consent on 10 May 2016 because the Tribunal, as previously constituted, was found to have acted unreasonably in refusing to adjourn the review to provide the visa applicant and the sponsor an opportunity to undertake another DNA test.
…
44.The representative submitted that when the review applicant and the visa applicant learned of the 2012 DNA test result they were shocked. They consulted their respective families in order to ascertain whether there is any biological connection between the families. However, these consultations indicated that there was no biological connection or traces of any kind of lineage between the families. It was said that the parties provided to the Department letters from their respective communities and churches confirming that no such connection exists between their families and, in particular, a letter from the church where they married which confirmed they could not have done so if they were biologically related. The representative submitted that the 2012 DNA test result evidence “appeared to be inconclusive” and the Tribunal should place greater weight on the 2015 DNA test result evidence which proved that the child is the biological child of the couple and the overall circumstances of the applicant’s case.
…
49.The Tribunal accepts that the 2012 DNA test result is not definitive. However, the siblingship analysis that was undertaken scientifically assesses the most likely relationship between the tested parties in terms of whether they are full siblings (having both mother and father in common), half siblings (having either just their father or just their mother in common) or not siblings (and thus having no common parent). The higher the value the higher the chances that the tested parties are blood siblings. The Tribunal considers that the representative’s post hearing submissions would require it, in effect, to ignore or set aside this probative evidence which the Tribunal considers to be extremely relevant to its determination.
In relation to this sub-ground, the applicant submitted that:
10.The Applicant contends the Second Respondent not only failed to identify a sufficiently clear or rational basis for concluding at Paragraph 49 of its Decision that the 2012 DNA test results were: “probative and extremely relevant evidence”, by not stating what these results indicated was the actual likelihood the Applicant and his wife were half-siblings; but consequently had no basis for any assessment of what weight if any to attach to the Applicant's failure to participate in further DNA testing[.]
11.The 2012 DNA Test results just assert/ allege the Applicant and his Wife are more likely to be siblings then unrelated individuals by a ratio then asserted to indicate: “moderately strong evidence” exists they are half-siblings. It doesn't indicate how this converts to actual likelihood they are half-siblings, compared to a ratio of the likelihood that they are siblings as opposed to unrelated individuals.
It is thus not apparent to a non-scientifically- qualified lay observer exactly what is meant by the assertion the evidence in favour of the Applicant and his Wife being half-siblings is: “moderately strong”. As such, there is no basis for the Second Respondent's finding the 2012 DNA Test results are: probative and extremely relevant evidence" as to whether this is so or not[.]
12.Moreover, the First Respondent's Department failed to receive a satisfactory response from testers about the possibility the results indicated the Applicant and His Wife were cousins, not half-siblings ( See correspondence at Page 155 of Court Book ). Despite the testers not stated this was impossible to test or it might yield a result indicating relative mathematical likelihoods of precisely the propositions the Department asked about, the First Respondent's Delegate failed to further consider this. The Second Respondent similarly failed to recognise or attribute any weight to this, further highlighting lack of any basis for finding 2012 DNA Test results are: “probative and extremely relevant evidence” in favour of the Applicant and his Wife being half-siblings. The finding simply fails to reflect the fact that the alleged: “probative and extremely relevant evidence” was produced as a result of what a non-scientifically-qualified lay-person could only regard as incomplete and ambiguous communications conducted by officers of the First Respondent's Department who failed to secure clearer and more complete answers from the alleged experts with whom they were communicating[.]
13.This is particularly so given the Second Respondent's power under Section 349 of the Act to exercise all the powers and discretions that the First Respondent's Delegate was authorised to exercise and required by Section 353(b) to act according to substantial justice and merits of the case. The Second Respondent thus failed, as per Willcox and Madgwick JJ in Sellamuthu, supra, at Paragraphs 16-8 ( quoting Kirushanthan Paramananthan v Minister for lmmigration&Multicultural Affairs; Minister for lmmigration&Multicultural Affairs v Vijayakumar Sivarasa [1998] FCA 1693) to: “determine the substantive issues raised by the material and evidence before it…. a fundamental incident of the inquisitorial function of an administrative tribunal…. and in doing so make findings on the questions central to that determination… Whatever else ‘substantial justice’ may require it certainly demands that a decision actually be made in respect of the significant issues posed in the case”. It additionally neglected to: “give the questions before it for its determination ‘proper, genuine and realistic consideration upon the merits”.
Similar observations were made in: Satheeskumar v Minister for Immigration & Multicultural Affairs [1999] FCA 1285, at Paragraph 15, WAIJ v Minister for lmmigration&Multicultural&lndigenous Affairs [2004] FCAFC 74, per Lee and Moore JJ, at Paragraph 16 and VHAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 376, at Paragraph 18[.]
In relation to this sub-ground, the Minister submitted that:
34.By ground 1(a), the applicant contends that the Tribunal failed to identify a sufficiently clear or rational basis for its finding at [49] that the 2012 DNA test results were ‘probative evidence’ and ‘extremely relevant’ by not stating what these results indicated was the actual likelihood that the applicant and his wife were half-siblings.
35.The basis for the Tribunal’s conclusion that the 2012 DNA test results were ‘probative evidence’ and ‘extremely relevant’ is evident in [49] of its reasons. It stated that, although the results were not definitive, the analysis was undertaken scientifically and considered the likelihood of the applicant and visa applicant being siblings, half- siblings or not siblings. The Tribunal’s underlying reasoning is unremarkable and does not disclose any kind of illogicality or irrationality.
36.The applicant also argues that the 2012 DNA test results do not indicate how the ’66 to 1’ ratio converts to a likelihood that the applicant and visa applicant are half-siblings and that an unsatisfactory response was received by the Department about the likelihood of the applicant and visa applicant being cousins. 22 This contention is little more than a plea for merits review.
22 Applicant’s submissions (AS) at [11]-[12].
The applicant’s submission in his paragraph 10, that the Tribunal failed to identify a sufficiently clearly and rational basis for concluding that the 2012 DNA test results were probative and extremely relevant, is not sustainable. It was not disputed that the 2012 DNA test was undertaken by a laboratory qualified in genetic testing and tested DNA provided by the applicant and his wife. That is sufficient to make the 2012 DNA test results probative and extremely relevant.
The applicant then submitted in paragraph 10 that it was incumbent upon the Tribunal to state the actual likelihood of the applicant and his wife being half-siblings. It was not necessary for the Tribunal to go beyond noting the results of the 2012 DNA test, which were to the effect that the statistical likelihood of the applicant and his wife being half-siblings, compared to unrelated individuals, was 66 to 1 and was moderately strong evidence of them being half-siblings. Contrary to the applicant’s submissions, the Tribunal did articulate in lay terms the likelihood of the applicant and his wife being half-siblings. The Tribunal noted that the evidence provided by the lab was moderately strong evidence. That is a description in lay terms.
The applicant then submitted that, because of the supposed errors made by the Tribunal just mentioned, the Tribunal had no basis to attach weight to the applicant’s failure to participate in further DNA testing. This issue arose in circumstances described by the Tribunal as follows:
47.In January 2013 the review applicant wrote to the Department claiming that he and the visa applicant strongly believed there was some sort of error during the DNA sample collection or testing process, such as human error in collecting and storing the sample or in the process of analysing the data. On that basis, he requested that he and his spouse be given a chance to take another DNA test to demonstrate that they are not related as biological halfsiblings.
48.Furthermore, the representative wrote to the previously constituted Tribunal on 6 March 2015 requesting an extension of time to provide further DNA evidence as the review applicant and the visa applicant had engaged DNA Bioservices Pty Ltd to obtain a further DNA report, which was anticipated to take 3 weeks to obtain. Whilst the Tribunal granted an extension of time until 31 March 2015 for this evidence to be submitted, the representative advised on 1 April 2015 that the visa applicant was finding it difficult to obtain further DNA evidence because specimen testing agencies in Ethiopia would not get involved unless there was a letter from an authority authorizing the DNA test. Accordingly, the representative requested that the Tribunal provide such a letter. Although the previously constituted Tribunal refused to do so (which in essence was the ground upon which the case was later remitted by consent from the Federal Circuit Court), the Tribunal as presently constituted provided the requested letter on 12 December 2016. However, the review applicant has refused to participate in a further DNA test, notwithstanding that the Tribunal has offered to wait for the outcome of such testing.
…
51.… The Tribunal also places significant weight on the review applicant’s refusal to participate in further DNA testing with the visa applicant notwithstanding that this was the specific reason for the remittal of this case by consent from the Federal Circuit Court on 10 May 2016.
In my view, it was open to the Tribunal to place weight on the applicant’s failure to submit the results of a further DNA test of himself and his wife. The Tribunal’s failure to wait for a further DNA test result was the ostensible reason for the matter being remitted to the Tribunal. The fact that the applicant asked for time to submit the results of a further DNA test, but, when given the opportunity, declined to do so, undermines the applicant’s earlier suggestion that there may have been a technical error in the 2012 DNA test result.
The submission in paragraph 11 of the applicant’s submissions repeats the point that the Tribunal did not determine the actual likelihood of the applicant and his wife being half-siblings. As stated above, the Tribunal did not need to say more on that issue than it did.
The submission at paragraph 12 concerns the issue of whether the applicant and his wife might have been cousins, and thus not within a prohibited degree of relationship. A senior visa processing officer wrote to the lab on 31 July 2013 saying (CB156):
I have received results for one of our clients. (Your Reference G32475, Our Reference 2012049671) where it was concluded that there is moderately strong evidence the clients are biological half siblings. It was calculated to be 66 to 1 chances.
In a similar situation, could these results reflect a cousin relationship?
Also, if the clients were to undergo the same tests, would the above result also be concluded?
A senior scientist from the lab replied on 1 August 2013 saying (CB155):
In regards to the results for the sibship case (Our Reference G32475, Your Reference 2012049671), we did not test for a cousin relationship between these two individuals and we don’t offer that testing at our laboratory. Our sibling test is based on how much of their DNA they have in common and as cousins they would be more distantly related than as half siblings (so share less of their DNA), so in my opinion the chances of that relationship would be lower, but it is possible.
The message from the senior scientist was clear. What she said was that it is possible that the applicant and his wife are cousins, but that is less likely than that they are half-siblings. With that evidence, there was no need for a specific further test. DNA tests cannot produce definitive and categorical answers. They deal with probabilities. The evidence before the Tribunal was clear that it was more likely the applicant and his wife were half-siblings than that they were cousins. The applicant’s complaint in paragraph 12 of his written submissions is without substance.
Similarly, the allegations in paragraph 13 of the applicant’s written submissions are simply misplaced. The Tribunal did make a decision on the significant issues before it.
Ground 1(b)
The second aspect of ground 1 is as follows:
b.failing in Paragraphs 3, 38, 44 and 49 of its Decision to have regard for the objectively inconclusive results of the 2012 DNA test before characterising them as probative and extremely relevant evidence …
The relevant paragraphs of the Tribunal’s reasons for decision are set out above.
In relation to this sub-ground, the applicant submitted that:
15.In this context, the Second Respondent also failed to have regard to the 2012 DNA test's objectively inconclusive results before characterising them as probative and extremely relevant evidence and thus effectively improperly placed an onus on the Applicant to produce further evidence to counter those results. The 2012 DNA test's objectively inconclusive results are apparent from the results themselves and subsequent correspondence at Pages 142 and 155 of the Court Book. In noting in Paragraph 44 of its Decision that: "The representative submitted that the 2012 DNA Test evidence 'appeared to be inconclusive"', the Second Respondent failed to recognise the Applicant's representative's submission was simply reflecting what was apparent from the documents produced by the First Respondent's Department itself[.]
The correspondence at CB142 is the original test results from the lab, which stated that:
Based on the autosomal STR results presented on Table 1, the statistical likelihood of Daniel Tadese and Genet Hailu Abebe being related as biological half siblings, compared to unrelated individuals, was calculated as 66 to 1.
ŸBased on the above statistical analysis of the autosomal STR results, there is moderately strong evidence to support the proposition that Daniel Tadese and Genet Hailu Abebe are related as biological half siblings.
The correspondence at CB155 is the email from the senior scientist set out above.
In relation to this sub-ground, the Minister submitted that:
42.By this ground the applicant contends that the Tribunal failed to have regard to the 2012 DNA test’s ‘objectively inconclusive’ results before characterising them as ‘probative evidence’ and ‘extremely relevant’. It is said that the results are objectively inconclusive having regard to ‘the results themselves’ and ‘subsequent correspondence’ at CB 142 and 155.25
43.This ground may be a reference to the fact that the 2012 DNA test results provided that there was a 66 to 1 likelihood of the visa applicant and applicant being half- siblings, as opposed to stating that it was a certainty that such a relationship existed. The Tribunal noted at [49] that these results were not ‘definitive’, but that they cast light on the most likely relationship between the visa applicant and applicant.
44.The applicant does not identify what aspect of the subsequent correspondence at CB 142 and 155 renders the 2012 DNA test results ‘objectively inconclusive’. This appears to be a reiteration of previous argument that the 2012 DNA test results do not indicate how the ‘66 to 1’ ratio converts to a likelihood that the applicant and visa applicant are half-siblings, and that an unsatisfactory response was received by the Department about the likelihood of the applicant and visa applicant being cousins. Again, the applicant is seeking merits review of the Tribunal’s decision.
25 AS at [15].
This sub-ground asserts that the 2012 DNA results were objectively inconclusive. In a sense, they were, because DNA results are inherently incapable of establishing absolutely the closeness of the relationship between people. DNA results by their nature concern likelihoods, rather than absolute truths.
However, the Tribunal’s task was not to determine absolutely the genetic relationship between the applicant and his wife. The Tribunal’s task was to determine whether or not it was satisfied that the applicant and his wife were not within a prohibited relationship. The Tribunal was not satisfied that the applicant and his wife were not within a prohibited relationship. The 2012 DNA test was probative and extremely relevant in answering that question.
Ground 1(c)
The third aspect of ground 1 is as follows:
c.consequently having no basis for any assessment of what weight if any to attach to the Applicant’s failure to participate in further DNA testing …
In addition to the paragraphs set out above, the relevant paragraphs of the Tribunal’s reasons for decision were as follows:
24.Rather, and in response to the representative’s question as to whether the Tribunal was intending to base its decision solely on the 2012 DNA test result evidence, the Tribunal indicated that it was not - it would base its decision on all the evidence before it but it may place greater weight on the 2012 DNA test result evidence, given the review applicant’s refusal of the Tribunal’s offer to undergo further DNA testing.
…
37.The representative maintained at the Tribunal hearing that he was aware of case law stating that DNA evidence should not be given greater weight where there are other factors, as here. His subsequent submission initially refers to the Department’s procedural guidelines (PAM3) regarding the fact that there is no legal power to compel an applicant to undergo DNA testing, applicants are not obliged to undertake DNA testing when it is suggested and, for various reasons, little weight should be given to an applicant’s decision not to undergo testing.
…
43.The representative also referred to Kumar and the Minister for Immigration and Citizenship [2009] AATA 124 (February 2009) in which the Tribunal was said to have considered when DNA testing is an optional relationship verification strategy in the family visa, Australian citizenship and refugee visa streams. However the Tribunal rejects the representative’s submission about the decision in Kumar, as the selectively quoted paragraph (and purported confirmation that little weight should be given to an applicant’s decision not to undergo DNA testing) was, in fact, simply the part of the decision that sets out the legislative framework by citing verbatim the contents of PAM3. That paragraph, therefore, has no more relevance to the present circumstances than PAM3, which is not binding on the Tribunal. Furthermore, Kumar was a (non-binding) AAT decision that also dealt with the interpretation of s.16(2)(a) of the Australian Citizenship Act 2007. It is, therefore, not relevant to this assessment as it does not address a situation where DNA evidence has already been obtained, as here, which suggests that the visa applicant and the review applicant are half-siblings.
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51.Having considered all of the oral evidence and the various written submissions and other documentation submitted, such as the visa applicant’s birth certificate, the Tribunal places significant weight on the 2012 DNA test result evidence in making its assessment of the validity of the marriage. The Tribunal also places significant weight on the review applicant’s refusal to participate in further DNA testing with the visa applicant notwithstanding that this was the specific reason for the remittal of this case by consent from the Federal Circuit Court on 10 May 2016.
In relation to this sub-ground, the applicant relied in his written submissions in relation to ground 1(a).
In relation to this sub-ground, the Minister submitted that:
37.By ground 1(c), the applicant contends that the Tribunal ‘consequently’ had no basis for any assessment of the weight that should attach to the applicant’s failure to participate in DNA testing. The applicant’s submissions at [10]-[13] do not contain any elaboration of the meaning of, or argument in support of, ground 1(c).
For the reasons discussed above, it was open to the Tribunal to place weight on the applicant’s failure to undertake a further DNA test.
Ground 1(d)
The fourth aspect of ground 1 is as follows:
d.consequently failing to make clear and unambiguous findings as to credibility of evidence; contrary to the Applicant’s reasonable expectation this would occur in accordance with Paragraph 10 of the AAT’s Guidelines on Assessment of Credibility at:
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Paragraph 10 of that guideline stated that:
The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
The relevant paragraphs of the Tribunal’s reasons for decision were as follows:
50.In determining whether the marriage between the review applicant and the visa applicant is a valid marriage for the purposes of the Act, the Tribunal has considered the DNA evidence which indicates that the visa applicant and the review applicant share one common parent. The Tribunal has also considered the review applicant’s oral evidence that he and the visa applicant are not related in any way and that there was an initial investigation by their respective families as to whether they are closely related and this was found not to be the case. Although the 2015 DNA test only involved the review applicant and [his child, X] (not the visa applicant), the Tribunal also accepts that the review applicant and the visa applicant are the biological parents of their child, [X], who was born on 21 October 2014.
51.Having considered all of the oral evidence and the various written submissions and other documentation submitted, such as the visa applicant’s birth certificate, the Tribunal places significant weight on the 2012 DNA test result evidence in making its assessment of the validity of the marriage. The Tribunal also places significant weight on the review applicant’s refusal to participate in further DNA testing with the visa applicant notwithstanding that this was the specific reason for the remittal of this case by consent from the Federal Circuit Court on 10 May 2016.
52.Notwithstanding the Tribunal accepts that the review applicant and others in their community, such as the church where they married, may not have been aware that he and the visa applicant are related by family, having considered all of the evidence and submissions before it, including the evidence of a genuine relationship and the Tribunal’s findings outlined at paragraphs 28 to 35, the Tribunal is not satisfied that the parties are not within a prohibited relationship. Therefore, the Tribunal is not satisfied that the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
(emphasis added)
In relation to this sub-ground, the applicant submitted that:
14.It is further submitted the deficiencies in the Second Respondent's fact-finding processes outlined in the last four Paragraphs of these Submissions resulted in failure to make clear and unambiguous findings as to credibility of evidence; contrary to the Applicant's reasonable expectation this would occur in accordance with Paragraph 10 of the AAT's Guidelines on Assessment of Credibility referred to in Paragraph 1(d) of his Grounds of Review. The finding that the 2012 DNA test results were: "probative and extremely relevant evidence was thus reached as a result of jurisdictional error which then determined the comparative weight the Second Respondent attached to the Applicant's evidence he and his wife were not half-siblings ( See Paragraphs-8, 10-2, 14, 19, 21, 24, 26, 29-35, 44-7 and 50-2 of Second Respondent's Decision and correspondence, Statutory Declarations and Submissions at Pages 135, 142, 148-9, 153, 155, 237, 263-4, 313-6 of Court Book regarding Inconclusiveness of DNA Test Results; matters relevant to reasons for reluctance to undergo Further DNA Testing and consultations between the Applicant and his Wife and their respective families resulting in advice that they are not related )[.]
In relation to this sub-ground, the Minister submitted that:
38.By this ground the applicant contends that the Tribunal failed to make ‘clear and unambiguous findings as to credibility of evidence’, contrary to the ‘reasonable expectation’ that the Tribunal would act in accordance with paragraph 10 of its Guidelines on Assessment of Credibility (the Guidelines). The submissions in support of this ground rely on the ‘deficiencies’ in the Tribunal’s fact-finding argued under grounds 1(a) and (c).23
39.No irrationality or illogicality is disclosed in the Tribunal’s finding that the 2012 DNA test results were ‘probative’ and ‘extremely relevant’. Otherwise, the applicant’s arguments are in the nature of a plea for merits review.
40.The Tribunal’s findings regarding the 2012 DNA test results were clear and unambiguous: the material was ‘probative evidence’ and ‘extremely relevant’.
41.Additionally, to the extent that this ground seeks to rely upon an alleged non- compliance by the Tribunal with its Guidelines on the Assessment of Credibility (the Guidelines), such Guidelines do not bind the Tribunal and any failure to recite, apply or act in accordance with them does not disclose jurisdictional error.24
23 AS at [14].
24 See, in particular, AAY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2593 at [37] (Blake J), citing SZUZK v Minister for Immigration and Border Protection [2016] FCA 498 at [22] (Bromwich J)
In oral submissions, the Minister also relied on M100 of 2004 v Minister for Immigration and Citizenship (2007) 213 FLR 63 at 102; [2007] FMCA 829, where I said:
The High Court in Peko-Wallsend held that a matter is a relevant consideration that must be considered if the applicable legislative instrument expressly or impliedly requires that the matter be considered. In my view, the Act does not expressly or impliedly require the Tribunal to have regard to the gender guidelines or the credibility guidelines. The gender and credibility guidelines consist of statements of general principle and educational guidance about matters including the demeanour of the [applicant]. I do not perceive anything in the Act that expressly or impliedly requires the Tribunal to consider guidelines of that nature, such that a failure to do so would vitiate the Tribunal’s decision.
In the present case, the Tribunal actually accepted that the applicant, his wife, their church and others in their community, may not have been aware that the applicant and his wife were half-siblings. Obviously, the applicant and his wife could have been half-siblings secretly, for example, if his mother had had an affair with her father, or had been raped by her father, or if her mother had had an affair with his father or had been raped by his father. Obviously, if a rape had occurred, neither person involved might have known the identity of the other person, even if they both attended the wedding of their children many years later.
Because the Tribunal did not base its reasoning on the applicant and his wife lacking in credibility, it was unnecessary for the Tribunal to apply the credibility guidelines. In addition, for the reasons given by the Minister, it was unnecessary for the Tribunal to apply the credibility guidelines.
Ground 1(e)
The fifth aspect of ground 1 is as follows:
e.failing in Paragraphs 9-11, 14, 16-20, 23-4, 36, 38, 42-4, 48 and 51-2 of its Decision to apply applicable statutory provisions in seeking to reach a state of satisfaction as to whether the Applicant and his wife were not siblings; specifically Section 88F and 88G of the Marriage Act 1961 (Commonwealth), which required that the Applicant’s marriage to his wife be prima facie recognised as valid …
In addition to the paragraphs set out above, the relevant paragraphs of the Tribunal’s reasons for decision were as follows:
9.On 12 December 2016 the Tribunal, as presently constituted, wrote to the review applicant noting that the representative’s submission did not address the issue that formed the basis of the delegate’s decision, namely the delegate’s finding that the applicant and the sponsor are half siblings. On that basis, the Tribunal invited the applicant and the sponsor to undergo DNA testing in order to disprove a sibling relationship.
10.On 27 December 2016 the representative sought and obtained an extension of time to respond to the Tribunal’s offer of DNA testing. The representative submitted, however, that it was unnecessary for the Tribunal to request further DNA testing in light of the outcome of DNA testing proving that [X] is the biological child of the couple which resulted in his being granted Australian Citizenship by Descent (‘the 2015 DNA test result’).
11.On 6 January 2017 the Tribunal received a statutory declaration by the sponsor which described the process he had gone through to obtain [X]’s Australian Citizenship by Descent. The sponsor reiterated that it was unnecessary to undergo DNA testing in light of the 2015 DNA test result which resulted in [X] being granted Australian Citizenship.
…
14.At the hearing, the Tribunal discussed with the review applicant the 2012 DNA test result referred to in the delegate’s decision. In evidence, the review applicant maintained that the visa applicant is not his sister; he said that he does not have a biological relationship to her.
…
16.Asked how that evidence proves he and the visa applicant are not half-siblings, the review applicant stated that [X] was given Australian citizenship after DNA testing proved [X] is his biological child.
17.Asked again how that evidence proves he and the visa applicant are not half-siblings, the review applicant stated that he does not know why but they don’t have any relationship at all because his family and her family are not related. He said that according to his religion there was an initial investigation by the family as to whether they are closely related or not and after that it was decided for marriage.
18.The Tribunal suggested that the 2015 DNA evidence establishing that he is [X]’s biological father did not, in effect, undermine the 2012 DNA test result evidence suggesting that the sponsor and the visa applicant are half siblings. The Tribunal noted that if the evidence indicates, and the Tribunal finds, that he and the visa applicant are half-siblings, their marriage would be invalid for the purposes of the Act because marriages between brothers and sister, including half siblings, are prohibited relationships. Furthermore, in order to satisfy the requirements of a de facto relationship a couple cannot be related by family: s.5CB(2). The Tribunal suggested that on the evidence it may not be satisfied that the parties’ marriage is valid because they are within a prohibited relationship. Similarly, the Tribunal noted that it may not be satisfied that a valid de facto relationship exists because on the evidence it may find that the sponsor and the visa applicant are related as half siblings.
19.In response, the review applicant maintained that he and the visa applicant do not have a sibling relationship.
20.The Tribunal then granted a 3 week extension of time for the representative to make written post-hearing submissions. The Tribunal urged the sponsor, if he believed the 2012 DNA test process to have been defective in some way, to undergo further DNA testing with the visa applicant, noting that it was prepared to await the outcome of such further testing, however long it may take, if requested to do so.
…
23.The representative also misrepresented the Tribunal’s stance at the hearing in the following terms:
In summary the Member contended that the Applicant’s application could not succeed because as a matter of law legal presumptions unless the Applicant and his wife provides a counter DNA report to prove that they are not half siblings as reported as reported (sic) in the Department’s decision, which is the subject of these proceedings.
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36.A marriage in Australia is void for the purposes of the Act if the parties are within a prohibited relationship (s.23B(1)(b) of the Marriage Act 1961) whilst s.88D(2)(c) of that Act renders foreign marriages invalid if the parties are in a prohibited relationship. Prohibited relationships are defined by s.23B(2)(b) to include a marriage between a brother and a sister (whether of whole blood or half-blood). Therefore, if the review applicant and the visa applicant are related as half siblings, their marriage would be invalid for the purposes of the Act irrespective of whether the Tribunal is satisfied that the relationship is genuine and continuing.
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42.There is clear DNA evidence in this case which shows that the review applicant is [X]’s biological father and the Tribunal accepts that he is. Therefore, the parentage of [X] and/or the review applicant’s belief as to whether or not he is [X]’s biological father is not in issue. The Tribunal is considering whether, on the evidence, it can be satisfied that the review applicant and the visa applicant are not biological half-siblings and, therefore, in a prohibited degree of relationship.
…
44.The representative submitted that when the review applicant and the visa applicant learned of the 2012 DNA test result they were shocked. They consulted their respective families in order to ascertain whether there is any biological connection between the families. However, these consultations indicated that there was no biological connection or traces of any kind of lineage between the families. It was said that the parties provided to the Department letters from their respective communities and churches confirming that no such connection exists between their families and, in particular, a letter from the church where they married which confirmed they could not have done so if they were biologically related. The representative submitted that the 2012 DNA test result evidence “appeared to be inconclusive” and the Tribunal should place greater weight on the 2015 DNA test result evidence which proved that the child is the biological child of the couple and the overall circumstances of the applicant’s case.
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48.Furthermore, the representative wrote to the previously constituted Tribunal on 6 March 2015 requesting an extension of time to provide further DNA evidence as the review applicant and the visa applicant had engaged DNA Bioservices Pty Ltd to obtain a further DNA report, which was anticipated to take 3 weeks to obtain. Whilst the Tribunal granted an extension of time until 31 March 2015 for this evidence to be submitted, the representative advised on 1 April 2015 that the visa applicant was finding it difficult to obtain further DNA evidence because specimen testing agencies in Ethiopia would not get involved unless there was a letter from an authority authorizing the DNA test. Accordingly, the representative requested that the Tribunal provide such a letter. Although the previously constituted Tribunal refused to do so (which in essence was the ground upon which the case was later remitted by consent from the Federal Circuit Court), the Tribunal as presently constituted provided the requested letter on 12 December 2016. However, the review applicant has refused to participate in a further DNA test, notwithstanding that the Tribunal has offered to wait for the outcome of such testing.
In relation to this sub-ground, the applicant submitted that:
20.The Second Respondent's approach to relative weight to be attached to the 2012 DNA Test Results, Applicant's failure to undertake further DNA testing and other evidence in support of his case as referred to above in the last ten Paragraphs of these Submissions also resulted in it failing to properly reach a state of satisfaction as to whether or not the Applicant and his Wife were half-siblings; as reflected in Sub-Paragraphs (e)-(g) of the First Ground of Review. Firstly, the Second Respondent failed to recognise that Sections 88F and 88G of the Marriage Act 1961 ( Commonwealth ) required that the Applicant's marriage to his wife be prima facie recognised as valid, which it did not do for the reasons outlined above in the last four Paragraphs of these Submissions[.]
21.Under Section 88F of the Marriage Act: "Notwithstanding any other law, the question whether a marriage solemnised in a foreign country is to be recognised in Australia as valid shall be determined in accordance with the provisions of this Part, whether or not...determination of the question is incidental to... determination of another question".
Under Section 88G: "A document is, for all purposes, prima facie evidence of the facts stated in it and... validity of the marriage to which it relates if it purports to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have been solemnised in, or under the law of, a foreign country and purporting to have been issued by: (a) in the case of a marriage alleged to have been solemnised in a foreign country--an authority of that country or of that part of the country in which the marriage was allegedly solemnised; or: (b) in the case of a marriage alleged to have been solemnised under the law of a foreign country--an authority of that country[.]
It is not disputed that the Applicant and his Wife's marriage was evidenced in this manner and it should accordingly have been treated as prima facie valid[.]
22.The 2012 DNA test's results were erroneously given improper weight for reasons stated above in Paragraphs 10-5 of these Submissions. In this context, evidence supporting the Applicant's contentions regarding Inconclusiveness of DNA Test Results; matters relevant to reasons for reluctance to undergo Further DNA Testing and consultations between Applicant and his Wife and their respective families resulting in advice they are not related ( See Paragraphs 8, 10-2, 14, 19, 21, 24, 26, 29-35, 44-7 and 50-2 of Second Respondent's Decision and correspondence, Statutory Declarations and Submissions at Pages 135, 142, 148-9, 153, 155, 237, 263-4, 313-6 of Court Book) was erroneously assessed as insufficient to satisfy Second Respondent the Applicant and his wife are not half siblings. See also Paragraphs 15-9, 26-9 and 32 of these Submissions below regarding Second Respondent's failure to properly take into account Applicant's reasons for failing to undertake further DNA testing. The Second Respondent unreasonably rejected alternatively open conclusions. See for example: WAIJ, supra, at Paragraphs 40-54[.]
In relation to this sub-ground, the Minister submitted that:
55.By this ground the applicant contends that the Tribunal failed to recognise that ss 88F and 88G of the Marriage Act required that the applicant’s marriage to the visa applicant be recognised as prima facie valid.
56.Section 88F of the Marriage Act provides that the question whether a marriage solemnised in a foreign country is to be recognised in Australia as valid is to be determined in accordance with Part VA (which contains ss 88A to 88G27), whether or not the determination of the question is incidental to the determination of another question.
57.Section 88G relevantly provides that a document purporting to be a certified copy of a marriage certificate alleged to have been solemnised in, or under the law of a foreign country and purporting to have been issued by an authority of that country is, for all purposes, prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates.
58.It was unnecessary for the Tribunal to explicitly recite, or indeed give any consideration to, the prima facie position set out in s 88G of the Marriage Act. Had it found that the applicant and visa applicant were not in a prohibited relationship, it would have then been appropriate to give effect to the prima facie position in otherwise considering the validity of the marriage. However, having found that s 88D(2)(c) did apply, it was bound to find that the marriage was not valid. In this regard, s 88G acts only as a presumption of the facts stated in the marriage certificate and of the validity of the marriage; it does not act as a presumption that the parties to a marriage are not in a prohibited relationship.
27 But, see s 12 of the Act, which provides that Part VA applies as if s 88E of the Marriage Act were excluded.
In relation to this ground, the applicant submitted that:
47.It is submitted the Second Respondent conducted its hearing in a manner creating reasonable apprehension of bias. In Ebner v Official Trustee in Bankruptcy [2000) HCA 63; Gleeson, McHugh, Gummow and Hayne JJ held, at Paragraph 6, that such an apprehension could arise if: “a fair-minded lay. observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial”[.]
48.It is submitted the Second Respondent's conduct of the hearing gave rise to such a reasonable apprehension of bias in that it:
•failed to apply applicable statutory provisions in seeking to reach state of satisfaction as to whether Applicant and his wife were not half-siblings; specifically Sections 88F and 88G of the Marriage Act, which required Applicant's marriage to his wife be prima facie recognised as valid ( See Paragraphs 20-2 of these Submissions above ) and/ or:
•failed to apply standard of proof required by judgment in Briginshaw v Briginshaw (1938) 60 CLR 336 in seeking to reach state of satisfaction as to whether Applicant and his wife were not half-siblings ( See Paragraph 23 of these Submissions above ) and/ or:
•erroneously drew inference against Applicant for failing to participate in further DNA testing, erroneously applying judgment in Jones v Dunkel and/ or otherwise improperly placing onus on Applicant to produce further evidence to counter results of 2012 DNA test ( See Paragraphs 24-9 of these Submissions above ) and/ or:
•erroneously assessed significance of Applicant failing to participate in further DNA testing by reference to reason his case was remitted to Tribunal by Federal Magistrates' Court after an earlier Tribunal hearing ( See Paragraphs 16-9 of these Submissions above ) and/ or:
•consequently failed to remain open-minded and treated second Tribunal hearing as resumption of first and Applicant as being required to conduct his case by way of addressing outstanding issues raised at earlier hearing; contrary to Applicant's reasonable expectation he would be treated in accordance with Paragraphs 12 and 18 of the AAT's above mentioned Guidelines on Assessment of Credibility ( See Paragraph 19 of these Submissions above )[; and/or]
•consequently failed to treat the Applicant with fairness, dignity, sensitivity, respect and impartiality; contrary to his reasonable expectation he would be treated in accordance with Paragraphs 15, 19 and 24 of the AAT's above-mentioned Guidelines on Assessment of Credibility[.]
49.In particular, it is submitted that a reasonable apprehension of bias was created by the Second Respondent's dismissive attitude towards the Applicant's submissions, as outlined above, at Paragraphs 26-9 of these Submissions. This caused the record of the hearing to take on the tone of an adversary proceeding between the Applicant and the Second Respondent, in which the First Respondent and the DNA testers were reduced to ciphers from whom evidence was to be extracted for the purposes of pursuing this adversary contest. The reference to evidence not having been taken from the Applicant may have been unfortunate, but the manner in which this evidence was taken and absorbed was the subject of legitimate comment, as explained above in Paragraphs 10-2, 14, 26-9, 35-6 and 43-6 of these Submissions. Moreover, the issues raised by the Applicant with respect to the application of principles akin to those of burden and standard of proof similarly warranted more serious consideration, in light of the discussion of those issues above in Paragraphs 13 and 16-29 of these Submissions and their lengthy consideration in Kumar and Minister for Immigration and Citizenship [2009] AATA 124; (2009) 107 ALO 178; (2009) 50 AAR 96, at Paragraphs 69-71 and 87-131[.]
In relation to this sub-ground, the Minister submitted that:
79.By this ground, the applicant contends that the Tribunal’s conduct of the hearing, as reflected in its reasons for decision, gave rise to a reasonable apprehension of bias.
80.In order to establish an allegation of apprehended bias on the part of the Tribunal, such an allegation must be distinctly made and clearly proved.36 The applicant has done neither. His argument in support of this ground relies entirely on the content of the Tribunal’s reasons for decision, which are irrelevant to the objective assessment of whether a fair-minded lay observer would reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues.37
36 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Gleeson CJ and Gummow J).
37 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [67]-[68] (Gummow ACJ, Hayne, Crennan and Bell JJ).
The essence of an apprehended bias claim is that the decision-maker did something during the course of the proceedings, prior to the decision being made, that might have led a fair-minded lay observer to reasonably think that the decision-maker might not bring an open mind to the decision in the matter. Here, all bar one of the applicant’s arguments are based on the Tribunal’s reasons for decision. Obviously, by the time the Tribunal published its reasons for decision, it was allowed to have reached a definite conclusion.
The one exception was the argument in the last bullet point of paragraph 48 of the applicant’s submissions that the Tribunal:
consequently failed to treat the Applicant with fairness, dignity, sensitivity, respect and impartiality …
However, that argument, on its face, was based on the points made earlier in paragraph 48 of the applicant’s submissions, which all concerned the Tribunal’s eventual reasons for decision. Moreover, the applicant did not provide the usual evidence to support a claim of apprehended bias, such as the transcript of the proceedings and/or the audio of the proceedings.
While paragraph 48 of the applicant’s submissions referred to the Tribunal’s conduct of the hearing, the applicant did not identify anything untoward in the Tribunal’s conduct of the hearing before it. All of the applicant’s complaints were based on the reasons for decision themselves, which could only rarely demonstrate apprehended bias. Actual bias is another issue, but that was not raised.
Moreover, the supposed errors that the applicant said gave rise to a reasonable apprehension of bias were not errors at all, for the reasons explained above.
In the present case, nothing that has been alleged, and nothing that emerges from the Tribunal’s reasons for decision, supports an allegation of apprehended bias. This ground is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 10 July 2020
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