Tangkaepin v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1115
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tangkaepin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1115
File number(s): SYG 1965 of 2020 Judgment of: JUDGE LAING Date of judgment: 1 December 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal’s decision was arbitrary, irrational or legally unreasonable – whether the Tribunal failed to conduct the review required by s 348 of the Migration Act 1958 (Cth) – whether the Tribunal failed in its procedural fairness obligations – allegation of apprehended bias – application dismissed Legislation: Migration Act 1958 (Cth) ss 5CA, 359, 360, 361
Migration Regulations 1994 (Cth) rr 1.03, 1.05A, Sch 2 cll 802.212, 802.221
Cases cited: Browne v Dunn (1894) 6 R 67
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Commissioner of ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780
Hutchinson v Comcare (No 2) [2021] FCA 284
Huynh v Minister for Immigration and Border Protection [2015] FCA 701; (2015) 232 FCR 497
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100; (2016) 70 AAR 22
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; (2018) 265 FCR 177
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Van Dung v Minister for Immigration and Border Protection [2021] FedCFamC2G 106
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 6 July and 17 October 2023 Place: Sydney Solicitor for the Applicant: Mr N Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1965 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KUNARKORN TANGKAEPIN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Child (Residence) (Class BT) visa.
BACKGROUND
The applicant is a citizen of Thailand. He applied for the visa that is the subject of these proceedings on 30 May 2018. The visa application was sponsored by his father (sponsor).
On 21 May 2019, the Delegate refused the visa application.
The applicant applied to the Tribunal for review of the Delegate’s decision on 31 May 2019.
On 15 July 2020, the applicant attended a hearing before the Tribunal. Evidence was also given at the hearing by his sponsor.
On 22 July 2020, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal considered that there was insufficient evidence before it to establish that the applicant was the child of the sponsor for the purposes of s 5CA of the Migration Act 1958 (Cth) (Act). This was noting the applicant’s delay in producing the original (untranslated) version of his birth certificate, and the fact that there was no evidence from a translator connecting a document in Thai script to the translation that had been provided (at [8]-[15]).
The Tribunal stated that it had considered further criteria in case it was wrong in reaching this conclusion (at [15]). The Tribunal stated that cl 802.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was a time of application requirement that the applicant be a “dependent child” of an Australian citizen, permanent visa holder, or eligible New Zealand citizen.
The Tribunal set out the definition of “dependent child” in r 1.03 of the Regulations as follows:
dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i) is dependent on that person; or
(ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.
The Tribunal set out the definition of “dependent” in r 1.05A of the Regulations as follows:
1.05A Dependent
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
…
The Tribunal had concerns regarding the financial evidence that had been given by the applicant. The Tribunal observed that the applicant had denied having another bank account, despite transfers apparently made by reference to his name. The Tribunal considered that the applicant had generally “played dumb” when asked about specific transactions and had then only admitted to having another account after his agent had interjected that the applicant “might” have one. The Tribunal did not consider that the applicant had made a “full and frank disclosure of the totality of his financial circumstances”. The Tribunal considered that there was inconsistency in the financial evidence that had not been satisfactorily explained, and that the applicant had attempted to mislead the Tribunal in relation to the statements that had been provided (and omitted). This led the Tribunal to find the applicant to be an “unreliable witness” and to give his evidence “no weight” (at [24]-[34]).
The Tribunal considered that it was “highly unlikely” that the applicant and the sponsor were living together during the period claimed, and rejected the applicant and sponsor’s evidence to the contrary. The Tribunal found the sponsor’s evidence “also to be unreliable” and therefore accorded it “no weight”. The Tribunal was concerned by the limited evidence of fund transfers from the sponsor, which was considered to raise doubt regarding the extent to which (if at all) the applicant was dependent upon him. The Tribunal considered that the applicant and the sponsor had given inconsistent evidence regarding the amount of money given to the applicant per week and that the applicant had given “vague answers” regarding deposits from the sponsor. Despite the applicant claiming to have primarily lived with his sponsor in Brisbane, his bank statements showed regular transactions on the Gold Coast and the applicant was unable to identify any Brisbane based transactions on his account (at [35]-[45]).
The Tribunal found that there was insufficient verifiable evidence of financial support from the sponsor to the applicant, or that the applicant was wholly or substantially dependent on the sponsor for his basic needs during the 12 months leading up to the visa application (at [43]).
The Tribunal was not satisfied that the applicant was a dependent child of the sponsor, either at the time of application or at the time of its decision. Accordingly, the Tribunal found that the criteria for the visa in cl 802.212 and 802.221(1) were not met. The Tribunal therefore affirmed the Delegate’s decision (at [46]-[50]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings before this Court through an application filed on 19 August 2020. The applicant ultimately relied upon an amended application filed on 28 August 2023.
The applicant relies on four grounds of review:
1.The decision is arbitrary, irrational, or legally unreasonable.
Particulars:
(i)The Tribunal found that there was insufficient evidence before it to satisfy it that the Applicant was the child of the sponsor under s5CA of the Migration Act 1958.
(a)In support of his claim that he is the child of the sponsor, the Applicant provided a translation of his birth certificate. At a hearing before it, the Tribunal requested that the Applicant provided the original of his Thai birth certificate, as requested. Despite complying with the Tribunal’s request, the Tribunal found that there was insufficient evidence before it to satisfy it that the Applicant was the child of the sponsor, because the Applicant did not provide ‘evidence from the translator’ that the document was the Applicant’s birth certificate, evidence that the Tribunal did not request, and in relation which it, in substance, stated at hearing that it did not require.
(b)The Tribunal also had before it the following, showing the Applicant’s Thai personal identification number of [redacted]:
(b)(i) The Applicant’s Thai passports.
(b)(ii) The Applicant’s birth certificate (English translation).
(b)(iii) The Applicant’s birth certificate (Thai).
(b)(iv)The Applicant’s Household Registration record (English translation).
(c)The Tribunal also had before it the following, showing the Sponsor’s Thai personal identification number of [redacted]:
(c)(i) The sponsor’s Thai passports.
(c)(ii) The Applicant’s birth certificate (English translation).
(c)(iii) The Applicant’s birth certificate (Thai).
(c)(iv)The Applicant’s Household Registration record (English translation).
(d)Given that the Tribunal had a certified translation of the birth certificate and given that the original birth certificate was provided as requested, and given that it had received oral evidence from the sponsor that the Applicant is his child, it was arbitrary, or irrational or legally unreasonable to find that there was insufficient evidence before it to satisfy it that the Applicant was the child of the sponsor.
(e)Furthermore, the Tribunal had before it documents issued by the Thai authorities that had personal identification numbers on them relating to the Applicant and the sponsor. Those documents included a household registration record of the Applicant that listed the sponsor as the Applicant’s father (the veracity of which the Tribunal did not reject), and the Applicant’s birth certificate. Given that documentation, and the oral evidence of the Applicant and the sponsor, it was arbitrary, or irrational or legally unreasonable to find that there was insufficient evidence before it to satisfy it that the Applicant was the child of the sponsor.
2.The Second Respondent failed to conduct the review required by s348 of the Migration Act 1958.
Particulars
(i)In conducting the review under s348 of the Migration Act 1958, the Tribunal was required to give genuine consideration to the information and evidence before it.
(a) The particulars at Ground 1 above are repeated.
(b)The Tribunal was required to give genuine consideration to the information and evidence before it for the purposes of determining the claim that the Applicant is the son of the sponsor. It failed to do so, such that it failed to conduct the review required by the Migration Act 1958. The decision is therefore infected with jurisdictional error.
(ii)In conducting the review under s348 of the Migration Act 1958, the Tribunal was required to give genuine consideration to the information and evidence before it.
(a)The Tribunal had before it the following evidence showing that the Applicant was a student in the Gold Coast:
(a)(i) The Applicant’s Form 80, at questions 20 and 54.
(a)(ii)Educational certificates from Browns English Language School, The Eagle Academy and Holmes Institute, and a letter confirming his study at Holmes Institute.
(b)The reasons of the Tribunal, and the questions asked by it at the hearing, reveal that it was oblivious to the fact of the Applicant studying in the Gold Coast from 2014 to at least the date of the visa application being made, which was on 30 May 2018. The failure was reflected in the Tribunal’s reasons, evidence by its finding at [37] and [48] of its reasons that:
37.The Tribunal considers it highly unlikely that the applicant was living with his sponsor at or near New Farm during this period, and rejects the evidence of the applicant and the sponsor to the contrary.
…
45.The applicant’s bank statement do not lie, and attest to regular transactions at Coles and Woolworth’s outlets on the Gold Coast during the period when the applicant was supposed to be living in Brisbane.
(c)The Tribunal was required to give genuine consideration to the information and evidence before it for the purposes of determining the claim that the Applicant was the dependent child of the sponsor. It failed to do so, with adverse findings being made as a result, such that it failed to conduct the review required by the Migration Act 1958.
(iii)The Tribunal was required to put the sponsor of the Applicant, and the Applicant, on notice that it had credibility concerns about the sponsor being the father of the Applicant and about the sponsor providing support to the Applicant, which was said to show that the Applicant was his dependent.
(a)In support of his claim that he is the child of the sponsor, the Applicant indicated on a Response to Hearing Invitation sent to him by the Tribunal that he wished his father sponsor to appear as a witness at a hearing.
(b)The Tribunal exercised its discretion pursuant to s361 of the Act to allow the sponsor to appear before it to give oral evidence.
(c)The sponsor confirmed he is the father of the Applicant, in response to Tribunal asking the sponsor if he is the father of the Applicant. Furthermore, throughout the Tribunal’s questioning to the sponsor, the Applicant was referred to by the Tribunal as ‘your son’. There was no reason for the sponsor to believe that the Tribunal did not accept that the Applicant was his son.
(d)The sponsor also confirmed that the Applicant was dependent on him, that he lived with him in Brisbane, and that the Applicant lived with him in Brisbane three weeks out of every four weeks, the remainder being in the Gold Coast, in the 12 months before the visa application was made.
(e)At no point in the hearing, or after the hearing, did the Tribunal put the sponsor, or the Applicant, on notice that the credibility of the sponsor’s sworn evidence was in issue.
(f)In the particular circumstances, the Tribunal failed to give the sponsor a meaningful opportunity to address the credibility concerns that it had with the sponsor. That failure constitutes legal unreasonableness, such that it constructively failed to exercise its jurisdiction…
4.The Tribunal failed to accord the Applicant procedural fairness and or the decision is irrational, arbitrary or legally unreasonable.
Particulars:
(i) The Tribunal stated in its reasons:
24.The Tribunal raised with the applicant his Commonwealth Bank bank statements for the period 1 May 2017 to 30 October 2018 in respect of an account number ending with the figures 0671. These contained frequent entries “Transfer to other Bank Commbank app sam”. The Tribunal asked the applicant if he sometimes uses the name “Sam”, and he agreed that he did. He repeatedly denied having another bank account, and insisted that these transactions reflected internet online purchases he had made. He generally “played dumb” when questioned regarding specific transactions.
(a)The Tribunal failed to put to the Applicant that it considered that he was playing ‘dumb’, thereby failing to accord the Applicant procedural fairness and committing jurisdictional error, given that the Tribunal consequently found that the Applicant was not a reliable witness and gave the Applicant’s evidence no weight. Furthermore, the Tribunal gives no examples of the Applicant playing dumb. In the absence of examples of the Applicant playing dumb, the decision is irrational, arbitrary or legally unreasonable, such that the decision is infected with jurisdictional error.
5.There is an apprehension of bias.
Particulars:
(i)The Tribunal was not satisfied that the Applicant was the child of the sponsor.
(a)In the circumstances where the Tribunal was not satisfied that the Applicant was the child of the sponsor, a reasonable person would apprehend bias in relation to the Tribunal then proceeding to determine whether the Applicant was the dependent child of the sponsor.
Ground 1 and (2)(i)
Ground 1 contended that the Tribunal’s finding that there was insufficient evidence that the applicant was the child of the sponsor was arbitrary, irrational, or legally unreasonable. The applicant observed that he had provided a copy of his original (untranslated) Thai birth certificate to the Tribunal, as had been requested at the Tribunal hearing. Despite this, the Tribunal found that there was insufficient evidence before it to satisfy it that the applicant was the child of the sponsor, because the applicant did not provide “evidence from the translator” that the document was the applicant’s birth certificate. The applicant submitted that this was evidence that the Tribunal did not request, and in relation which it, in substance, had stated at hearing that it did not require.
Given this, and given that the Tribunal had before it documents apparently issued by the Thai authorities that had personal identification numbers on them relating to the applicant and the sponsor, as well as oral evidence from the applicant and the sponsor, the applicant submitted that it was arbitrary, or irrational or legally unreasonable for the Tribunal to have found that there was insufficient evidence that the applicant was the child of the sponsor.
The applicant relied upon the following exchanges contained within the transcript of the Tribunal hearing that is in evidence before the Court (Transcript):
Q140Yes. You are yet to produce your original birth certificate either to the department or this tribunal.
A (INT) I only have one. I can send it next week.
Q141 Why can’t you send it until next week?
A (INT) I can do it this week. I'm waiting for the translation.
Q142You’ve already sent a translation some considerable time ago to the department. You were asked to provide the original to the department and you haven't provided it to the department or this tribunal.
A(INT) I did give it to the Immigration. I only have the photocopy, I don’t have the original.
Q143Are you saying you gave the original untranslated birth certificate to the department?
A (INT) You mean the Immigration?
Q144Sorry, are you asking me a question? Don’t ask me questions please, answer my question. Did you give the original untranslated birth certificate to the department?
A(INT) I give Immigration the copy of the original and the translation. It’s not the original, just copy.
Q145Yes, I accept it would be a photocopy or a scanned copy. There’s no record of that having been received. How soon could you send the tribunal a copy of the - or email to the tribunal your original birth certificate, a copy of your original birth certificate?
A (INT) This week.
Q146 Why such a broad answer, why can’t it be done today?
A Yes, I can give you today.
Q147 Okay.
A But scan - scan original.
Q148 Yes, can you send that in by 4 o’clock this afternoon?
A (INT) Yes.
Q149Very well. Thank you for that. Okay. Now, are there any questions you’d like to ask me?
A (INT) No.
I interpose to note that I accept the applicant’s submission that his question, in seeking to clarify what the Tribunal had asked, was entirely appropriate. It is unclear why the Tribunal responded in the manner that it did at this point of the hearing. It may be that there was some misunderstanding of what had been asked. Nonetheless, at the hearing before the Court, the applicant expressed that this part of this exchange was not relied upon for the purposes of advancing his case.
In any event, I accept on the basis of the above that the Tribunal asked the applicant for a copy of the untranslated version of his birth certificate, which he subsequently provided. I accept that the Tribunal did not ask the applicant for further certification from an interpreter. However, I do not accept the applicant’s submission that the Tribunal, in substance, stated at the hearing that it did not require anything further from an interpreter linking the translation that had been provided to the untranslated document.
The Tribunal’s reasoning immediately surrounding its findings on whether the applicant was the sponsor’s child was as follows (at [9]-[14]):
9. In the course of his application, the applicant provided a document which appeared to be a certified copy of his birth certificate, but failed to produce the original for verification of the translation. This document named the sponsor as the applicant’s biological father, but was incapable of verification. The Department wrote to the applicant on 15 February 2019 requesting among other things, a copy of the original (i.e. untranslated) birth certificate, however as at the date of the decision under review, 21 May 2019, it had not been provided.
10. On 19 June 2020, the Tribunal wrote to the applicant inviting him to provide:
Information in support of claims that you are a dependent in accordance with r. 1.05A(1)(a), and the definition of dependent child under regulation 1.03(b)(i) Information in support of claims that you meet the definition of “dependent’ in regulation 1.05A, and “child of a person” under section 5CA, and “dependent child” under regulation 1.03, and satisfies clause 802.212. If you intend to rely upon regulations 1.03(b)(ii) and 1.05A(1)(b), information of any claims of incapacity.
11. Notwithstanding this invitation, as at the commencement of the hearing, the applicant had still not provided a copy of the original untranslated copy of his birth certificate.
12. During the course of the hearing, the applicant initially said that he had not provided his original birth certificate because he was waiting on a translation, and could provide it in about a week. The Tribunal pointed out to the applicant that he had previously provided a purported translation of his birth certificate, and it was the original which the Tribunal was seeking. The applicant then agreed that he could provide the untranslated copy of the original to the Tribunal by 4 pm on the day of the hearing, and the Tribunal agreed to allow that period of time for him to do so.
13. Following the hearing the applicant delivered a document which appeared to be in Thai script to the Tribunal. There is an implied assertion by the applicant that this document is a copy of his birth certificate and is that which was provided for the purposes of the purported translation previously provided. However there is no evidence from the translator that this is in fact the case.
14. In the circumstances, there is insufficient evidence before the Tribunal to satisfy it that the applicant is the child of the sponsor under s.5CA of the Act.
If this had been the totality of the Tribunal’s reasoning regarding this issue, then it may not have been sustainable. As the applicant submitted, the Tribunal relied heavily in the above passages upon the absence of something for which it had not asked. It did not engage in detail with the evidence before it. It did not expressly engage in these paragraphs with the evidence that had been given by the applicant and his sponsor in respect of the relationship, including their oral evidence that had been given at the Tribunal hearing. It did not expressly refer to the correlation between the identification documents such as the apparently matching personal identification numbers that appeared across a number of them (including on the untranslated birth certificate). The latter two issues were submitted by the applicant under ground 2(i) to warrant finding that the Tribunal failed to give genuine consideration to the evidence before it: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [44]-[45].
However, I accept the Minister’s submission that the Tribunal’s reasoning must be considered fairly and in its totality. Whilst another decision maker (or the Court) may well have reasoned differently regarding the adequacy of the documents provided, including regarding the features that may have supported their adequacy such as the commonality of identification numbers, this does not mean that the Tribunal in the present case was bound to reason in this way: see Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal) at [45].
I am not persuaded that it was closed to the Tribunal not to have accepted that it had sufficient evidence before it confirming that the earlier translation of the birth certificate was of the document put forward as the untranslated birth certificate. This is even though parts of the document may have appeared similar. The applicant has provided to the Court an affidavit confirming that a translation of the annexed untranslated birth certificate, when translated, did indicate that the sponsor was the applicant’s father. However, this evidence was not before the Tribunal. It appears that it could have been placed before the Tribunal, had the Tribunal asked for it. However, I am not persuaded that the Tribunal’s omission in not doing so, and then reasoning in the manner that it did, is capable of reaching the high thresholds associated with grounds such as irrationality or legal unreasonableness. This is in circumstances where the Tribunal had identified additional concerns regarding the applicant’s evidence, such as his delay in providing the translation. It is also where the Tribunal considered at [15]-[47] of its decision that it would have not have found that the applicant met the criteria for the visa, even if it had been satisfied that the applicant was the sponsor’s child.
In the balance of the Tribunal’s reasoning, the Tribunal identified significant concerns regarding the credibility of the applicant and the sponsor (at [22]-[46]). The Tribunal found the applicant and the sponsor to be unreliable witnesses, and expressed that it was therefore unwilling to place any weight upon their evidence (at [34]). Within this context, I find the more likely inference not to be that the Tribunal overlooked the evidence given by the applicant and his sponsor, to the effect that the applicant was his sponsor’s child. The more likely inference is that the Tribunal was unwilling to place material weight upon this evidence, given the credibility concerns that it identified elsewhere in its decision.
Having regard to the above, on balance, I am not persuaded that the Tribunal failed to give “genuine” consideration to the identification documents that the applicant submitted (including the translated household registration record), simply because the details of those documents (including the commonality of details such as names and identification numbers) were not referenced in the Tribunal’s decision. As was observed by the Minister, care must be taken in applying labels such as “genuine” to the consideration required: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [26]-[27] per Kiefel CJ, Keane, Gordon, Steward JJ. The Tribunal was not required to refer to every aspect of the evidence before it, where it concluded that the part of the evidence in question was incapable of materially bearing upon its decision.
Whilst it would have been desirable for the Tribunal to have expressed itself in greater detail, it is apparent that the Tribunal considered the most significant identification document before it to have been the translation of the birth certificate. However, the Tribunal was unwilling to accept that evidence in the absence of clear evidence connecting the translation to the original (or untranslated) version. Although another decision maker may have reasoned differently, I am not persuaded that the Tribunal was legally precluded from reasoning in this manner. I am therefore not persuaded that the Tribunal failed to engage intellectually with the balance or the detail of the identification evidence, simply because it did not expressly do so at [9]-[14] of its decision.
For the above reasons ground 1, and the aspects of ground 2 that relate to the Tribunal’s reasoning regarding whether the applicant was the sponsor’s child, are unable to succeed. Even if I had accepted that error had been demonstrated, this would not have established jurisdictional error capable of justifying the Tribunal’s decision being set aside. This is because the Tribunal found that the applicant was unable to meet the criteria for the visa, even if it had been satisfied that the applicant was the sponsor’s child (at [15]-[46]): see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780. The applicant accepted that he needed to succeed in relation to more than these grounds in order to succeed in these proceedings. For the reasons that follow, I have not accepted that relevant error has been demonstrated in relation to the other grounds.
Ground 2
The balance of ground 2 contended that the Tribunal failed to conduct the review required, by failing to:
(a)consider evidence at questions 20 and 54 of the applicant’s Form 80, and the educational certificates before it, indicating that the applicant was a student in the Gold Coast;
(b)put the sponsor and the applicant on notice that it had credibility concerns about the sponsor being the father of the applicant and about the sponsor providing support to the applicant, which was said to show that the applicant was his dependent. In the particular circumstances, this was said to have resulted in the sponsor being denied a meaningful opportunity to address the Tribunal’s credibility concerns, which was contended to have been legally unreasonable.
I accept the Minister’s submissions as to why the first of these contentions is unable to succeed. The Tribunal’s concern at [35]-[45] of its decision regarding the location of transactions was that the applicant’s bank records demonstrated regular transactions at Coles and Woolworths outlets on the Gold Coast during the period that he was claimed to have been living in Brisbane, and yet there were no Brisbane based transactions in the 12 months preceding the visa application that the applicant was able to identify. The difficulty, therefore, was not that there were transactions on the Gold Coast (which the applicant claimed to have frequently visited). The difficulty was that the applicant’s transactions almost exclusively occurred on the Gold Coast, when the applicant claimed to have been living in Brisbane. That concern was not answered by evidence that the applicant had studied at institutions located on the Gold Coast and, in any event, that was not the explanation given at the Tribunal hearing (where reference was made to the applicant visiting his friends and sister on the Gold Coast: pages 15 and 20-22 of the Transcript). I am therefore not persuaded that the Tribunal failed to consider this evidence, on account of the Tribunal not referring to it at [35]-[45] of its decision.
In relation to the second contention, the applicant relied upon Huynh v Minister for Immigration and Border Protection [2015] FCA 701; (2015) 232 FCR 497 (Huynh). In that case, Griffiths J concluded at [103]:
103.In the particular circumstances of this case, the Tribunal’s actions constitute unreasonableness in the legal sense. By not providing Mr Le with a meaningful opportunity to address the particular issues of concern regarding credibility which the Tribunal had and which are outlined in [33] above, it constructively failed to exercise its jurisdiction to review the delegate’s decision. That constitutes jurisdictional error. I emphasise that this conclusion reflects the particular facts of this case and, in my opinion, does not involve an impermissible review by the Court of the merits of the case.
The applicant submitted that, similarly in the present case, it was unreasonable for the Tribunal not to have put to the sponsor, or the applicant, the credibility concerns that it held in relation to the sponsor’s evidence. The sponsor, it was submitted, had a vested interest in the review. The Tribunal had elected to hear from him, pursuant to s 361 of the Act. It was submitted that the Tribunal referred to the applicant as the sponsor’s “son” when questioning the sponsor, and gave him no reason to consider that his evidence may not be believed. This was notwithstanding the significance of the sponsor’s evidence to the question of whether the applicant was his dependent child.
However, as was submitted by the Minister, the case of Huynh involved different circumstances to the present. In Huynh, although Mr Le was not the review applicant, he was the visa applicant. The Tribunal had itself indicated that it wished for Mr Le to give evidence, in accordance with s 359 of the Act. Having sought that evidence, the Tribunal’s questioning of Mr Le was found to have been “highly perfunctory”. The questioning was general in nature, spanned approximately 5 minutes (including translations) and did not address the matters of apparent concern to the Tribunal. Part of the questioning was clearly not understood by the witness. As was emphasised by Griffiths J in Huynh, the decision turned on the particular circumstances of that case.
In any event, the correct approach to legal unreasonableness is not to analyse factual similarities or differences between individual cases, but to approach the relevant legal principles by reference to the particular circumstances of each case: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [84] per Nettle and Gordon JJ.
In the present case, the Tribunal questioned the sponsor in some detail about the issues of concern in the review, including where he and the applicant had lived, how often the applicant was on the Gold Coast as opposed to in Brisbane, and regarding the financial support that he claimed to have provided to the applicant. Whilst the Tribunal ultimately found the sponsor’s evidence to be unsatisfactory, this does not mean that it was unreasonable for the Tribunal not to have solicited further evidence from the sponsor. The Tribunal appears to have considered that it was able to make an assessment of the evidence that had been given.
The obligation under s 360 of the Act related to the applicant, and not the sponsor: Huynh at [63]. It was met in relation to the applicant. The applicant would have been sufficiently on notice of the issues on the review from the Delegate’s decision and from the questioning by the Tribunal. He had no basis for expecting that the sponsor’s evidence would be accepted and therefore was not in issue before the Tribunal. The Tribunal was not required to put to the applicant, much less the sponsor, its thought processes regarding the credibility of the evidence given in advance: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) at [47]-[48]. The rule in Browne v Dunn (1894) 6 R 67 did not apply: see Van Dung v Minister for Immigration and Border Protection [2021] FedCFamC2G 106 at [262]-[263] and the cases cited therein.
Having regard to the above, I am not persuaded that this aspect of ground 2 is able to succeed.
Ground 4
Ground 4 contended that the Tribunal denied the applicant procedural fairness and/or made a decision that was irrational, arbitrary or legally unreasonable. The applicant’s complaint in this regard stemmed from [24] of the Tribunal’s decision, where the Tribunal considered that the applicant had “played dumb” when asked about specific banking transactions. The applicant contended that this was irrational, arbitrary or unreasonable in the absence of specific examples. The applicant also contended that the Tribunal denied him procedural fairness in not putting to him that it considered that he was playing “dumb”, relying upon Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; (2018) 265 FCR 177 at [38]-[52].
I am not persuaded that procedural fairness, within the context of Part 5 of the Act, required the Tribunal to put to the applicant that it considered that he was “playing dumb” regarding his banking transactions. The applicant was sufficiently on notice that his claims to have been dependent upon his father were in issue from the Delegate’s decision and the Tribunal’s questioning, including by reference to his banking transactions. The applicant had no reasonable expectation that the Tribunal would necessarily accept his evidence about those transactions, including his references to having been “confused” about what was being put to him (at pages 9 to 11 of the Transcript). The Tribunal tested the applicant’s evidence regarding his banking transactions quite vigorously, putting to him at times that it found his evidence to be unsatisfactory or vague, and its concern that he had initially claimed to have only one banking account despite indications that he had another account (which was subsequently admitted).
I do not accept that by considering that the applicant was playing “dumb” regarding certain transactions, the Tribunal went so far as to find that his evidence was dishonest. Rather, by this expression the Tribunal appears to have formed an impression that the applicant’s evidence had been less than forthcoming, which had impacted upon its credibility. I consider that the Tribunal’s concerns in this regard were adequately put to the applicant at the hearing before the Tribunal. Further, as was submitted by the Minister, the Tribunal member was not generally “obliged to expose his or her mental processes or provisional views to comment before making the decision in question”: Commissioner of ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 592. The Tribunal was not required to provide the applicant with a “running commentary” regarding its subjective views on the quality of the evidence that he had given: SZBEL at [47]-[48].
I am also unable to accept the applicant’s contention that the Tribunal’s reasoning was irrational, arbitrary or legally unreasonable because the Tribunal did not provide specific examples of the applicant playing “dumb”. The Tribunal’s reasoning was not irrational, arbitrary or unreasonable simply because the Tribunal did not itemise the answers given by the applicant that it relied upon. The Tribunal was able to have formed this impression of the applicant’s evidence without setting out that evidence, in complete detail, in its reasons for decision. It has not been demonstrated that the Tribunal’s assessment of the applicant’s evidence was relevantly closed to the Tribunal. In these circumstances, I am not persuaded that the high thresholds associated with grounds of irrationality, illogicality or unreasonableness have been met: see Sabharwal at [45].
Ground 5
Ground 5 contended apprehension of bias. This was said to have occurred because the Tribunal proceeded to determine whether the applicant was the dependent child of the sponsor, in circumstances where it was not satisfied that the applicant was the sponsor’s child.
The applicant relied what was said in MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100; (2016) 70 AAR 22 (MZAEU) at [44]-[46]:
44.However, the appellant relies both on the fact that the same member heard the matter and on the contents of the Second Tribunal Decision to contend that a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided. It is apparent from this description of the appellant’s contention that it involves looking back (“might not have brought”) rather than, as is usually the case in connection with apprehended bias, looking forward (“might not bring”). The appellant’s contention also relies on the wording of the decision of the Tribunal to seek to establish apprehended bias by way of prejudgment. In Michael Wilson & Partners Limited v Nicholls, Gummow ACJ, Hayne, Crennan and Bell JJ said (at [67]):
As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
(Footnote omitted, bold emphasis added.)
45.We do not read the above as precluding reliance on reasons for decision in support of an argument of apprehended bias. For example, the reasons for decision may record some aspect of the conduct of the hearing and be relied upon as evidence of that conduct. Or they may disclose some fact not previously known to the parties which supports an allegation of apprehended bias. However, as the above passage makes clear, one needs to be careful not to invert the proper order of inquiry by first assuming the existence of reasonable apprehension.
46.In Vakauta v Kelly, the High Court held that the observations made about the doctor in the course of the judgment amounted to ostensible bias because they would lead to the conclusion, in the mind of the reasonable or fair-minded observer, that the judge was heavily influenced by views he had formed on other occasions rather than by an assessment based on the case in hand: see at 573-574 per Brennan, Deane and Gaudron JJ, at 579 per Dawson J, at 588 per Toohey J. This case makes clear that, in some circumstances, apprehended bias may arise or be apparent from reasons for decision.
However, in MZAEU, apprehended bias was ultimately not found. In any event, the present matter is a different case to MZAEU. This is a case in which the Tribunal, by reference to the evidence before it, reasoned as part of the one decision that it was not satisfied that the applicant met two aspects of a criterion for the grant of the visa.
The applicant’s case on ground 5 appears to have been premised upon the understanding that the Tribunal’s reasoning proceeded in a linear fashion, because of the order of its expression in the Tribunal’s reasons for decision. The applicant submitted that this was also supported by the Tribunal’s statement at [15] that it had “elected to consider the further criteria”, in case it was wrong in reaching its conclusion that it was not satisfied that the applicant was the sponsor’s child within the meaning of s 5CA of the Act. However, the reasons for decision were an expression of the decision that had been reached by the Tribunal. The mental processes that informed that decision would not have been expected to have proceeded in a necessarily linear fashion. Rather, they would have been expected to have proceeded from a holistic consideration of all of the evidence before the Tribunal.
I do not accept that a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the determination of the question of whether an applicant was a person’s “dependent child”, because it was expressed in a later numbered paragraph to its determination of whether the applicant was the sponsor’s “child”, in circumstances where the Tribunal had elected to consider both questions in case it was wrong about whether the “child” criterion was met. As was submitted by the Minister, the fact that the Tribunal was not satisfied that more than one element of a definition was made out is not reflective of bias. The mere fact of adverse findings, including on more than one issue, does not give rise to any inference about the Tribunal’s state of mind whilst these matters were under consideration: cf SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] and Hutchinson v Comcare (No 2) [2021] FCA 284 at [58].
I am therefore not persuaded that ground 5 is able to succeed.
CONCLUSION
For the above reasons, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 1 December 2023
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