Van Dung v Minister for Immigration and Border Protection - [2021] FedCFamC2G 106

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Van Dung v Minister for Immigration and Border Protection [2021] FedCFamC2G 106

File number(s): MLG 1446 of 2017

Judgment of: JUDGE RILEY

Date of judgment: 1 October 2021

Catchwords: MIGRATION – Administrative Appeals Tribunal – subclass 801 partner visa – whether the Tribunal took into account irrelevant considerations – whether the Tribunal conducted itself in such a way as to give rise to a reasonable apprehension of bias.

Legislation:
Migration Act 1958 ss 5F, 359A, 360(1) and (2)(a)

Migration Regulations 1994 reg.1.15A

Cases cited:
BOX16 v Minister for Immigration and Border Protection [2020] FCA 80

CNY17v Minister (2019) 268 CLR 76; (2019) 375 ALR 47; [2019] HCA 50

He v Minister for Immigration and Border Protection (2017) 255 FCR 41; (2017) 161 ALD 1; [2017] FCAFC 206

Goodwin v Commissioner of Police[2012] NSWCA 379

Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370; (1998) 54 ALD 654

Michael Wilson & Partners Ltd v Nicholls(2011) 244 CLR 427; (2011) 282 ALR 685; (2011) 86 ALJR 14; [2011] HCA 48

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 162 CLR 39

Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng(2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 178 ALR 421; (2001) 75 ALJR 679; (2001) 22(6) Leg Rep 2; [2001] HCA 17

Minister for Immigration & Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118

NADH of 2001 v Ministerfor Immigration and Multicultural and Indigenous Affairs(2004) 214 ALR 264; [2004] FCAFC 328

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 75 ALD 1; (2003) 201 ALR 437; (2003) 77 ALJR 1909; [2003] HCA 60

Re Refugee Review Tribunal; Ex parte H(2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20; [2001] HCA 28

SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

Division Division 2 General Federal Law

Number of paragraphs: 267

Date of last submission/s: 17 August 2021

Date of hearing: 10 August 2021

Place: Melbourne

Counsel for the Applicant Roz Germov

Solicitor for the Applicant MP Migration Law

Solicitor advocate for the First Respondent Sophie Roberts

Solicitor for the First Respondent Mills Oakley

Counsel for the Second Respondent No appearance

Solicitor for the Second Respondent Mills Oakley
ORDERS

MLG 1446 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
PHAM VAN DUNG
Applicant

AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

1 OCTOBER 2021

THE COURT ORDERS THAT:
1.The application filed on 6 July 2017 be deemed to:
(a)include in ground 1(d) particulars (vi) to (viii) set out in the proposed amended application dated 19 July 2021; and
(b)exclude grounds 2(a) to (c) inclusive.

2.The applicant’s application to have leave to amend the application filed on 6 July 2017 to include a new ground 2(a) be refused.
3.The application filed on 6 July 2017 be dismissed.
4.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 RILEY
INTRODUCTION

This is an application for 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 a partner visa.
BACKGROUND
In section A of his written submissions filed on 19 July 2021, the applicant provided the following background to the matter:
1.The Applicant is a male Vietnamese national now aged 29 who arrived in Australia on 15 March 2011 as the holder of a student visa authorising him to remain in Australia until 27 December 2016: Court Book (“CB”)-3, 45.
2.On 19 November 2012, the Applicant lodged an application for a subclass 820 Partner Provisional visa (“the subclass 820 partner visa”) with the First Respondent’s Department: CB 2-25.
3.The Applicant was sponsored for the subclass 820 partner visa by his wife, Tran Thu Thao Do (“Ms Do”), an Australian citizen by birth: CB-11; CB 26-34.
4.The couple met on 15 May 2011 and they married on 17 November 2012: CB-14; 60.
5.The Applicant was granted a subclass 820 partner visa on 19 September 2014: CB 141-145.
6.The Applicant lodged an application for a subclass 801 Permanent Partner visa (“the subclass 801 partner visa”) on 9 May 2015: CB 193-208.
7.The couple have a son, … , who was born [in] … March 2015 in Prairiewood, New South Wales: CB 208.
8.The subclass 801 partner visa application was refused on 6 January 2016 on the basis that the First Respondent’s delegate, (“the primary decision-maker”), was not satisfied that the couple were in a genuine relationship: CB 256-260.
9.The Applicant sought review in the Migration and Refugee Division of the Administrative Appeals Tribunal (“the Tribunal”) on 9 January 2016:CB 274-275; 300-301.
10.In a letter dated 20 March 2017, the Tribunal invited the Applicant to comment on information in the Tribunal’s possession that alleged the Applicant was not in a genuine relationship with his wife and that he was in a relationship with another woman (Ms Thu Thao Nguyen – “Ms Nguyen”) with whom he had travelled to Vietnam on two occasions without the presence of his wife, Ms Do: CB-456.
11.In a letter dated 20 March 2017, the Tribunal invited the Applicant to provide DNA evidence for the purpose of demonstrating that he was the biological father of [the sponsor’s child]: CB-460.
12.The Applicant, through his legal representative, responded to the invitation to comment by email dated 4 April 2017 in which he denied the allegation concerning Ms Nguyen and advised that he and Ms Nguyen were friends since high school and that she was married and had her own family. The purpose of the Applicant’s travel to Vietnam was to take part in a property settlement arising out of his parents’ divorce: CB- 462.
13.The Applicant’s representative responded to the Tribunal’s request for a DNA test in an email dated 10 April 2017 advising that the couple did not wish to undergo that procedure as they had sufficient evidence to demonstrate that they had cohabited as spouses: CB 468-469.
14.Ms Do suffered a miscarriage on 17 June 2016: CB-394 and was pregnant for a third time by December 2016: CB-393.
15.The Applicant and his wife attended a hearing before the Tribunal on 4 May 2017: CB-466.
16.The Tribunal affirmed the decision to refuse the subclass 801 visa on 2 June 2017 because it was not satisfied that the Applicant and his wife were in a genuine spousal relationship: CB 573-584.
17.The Applicant filed an application for judicial review with this Honourable Court on 6 July 2017.
In his written submissions filed on 2 August 2021, the Minister provided the following background to the matter:
Background
1.The applicant is a male citizen of Vietnam who made a combined Partner (Subclass 820) and Partner (Subclass 801) visa application on 20 November 2012 on the basis of his marriage to an Australia citizen, Ms Do Tran Thu Thao (the sponsor) (CB 2-37).
2.On 19 September 2014, the applicant was granted a Partner (Subclass 820) (Temporary) visa (CB 143-145).
3.On 23 March 2015, the applicant requested further information from the Department about the processing of his Partner (Subclass 801) visa application (CB 150-151). The Department responded on 31 March 2015 indicating that additional information had been requested from his representative on 21 October 2014 (CB 146-147).
4.On 7 May 2015, the applicant’s representative provided further documents evidencing the relationship to the Department by (CB 159-186).
5.On 9 May 2015, the applicant lodged an online Partner visa application – information for permanent stage processing form (CB 193-206) and submitted various supporting documents, including a birth certificate for [the sponsor’s child], which listed the applicant as his father and the sponsor as his mother (CB 208).
6.On 28 November 2015 and 2 December 2015, officers of the Department made two attempted site visits at the applicant and sponsor’s claimed residential address (CB 243-247). The Department also unsuccessfully attempted to contact the applicant and sponsor by telephone on multiple occasions (CB 249).
7.On 6 January 2016, a delegate refused to grant the applicant a Partner (Subclass 801) visa because they were not satisfied that the parties were in a genuine spousal relationship (CB 256-260). The delegate’s decision record set out the following details:
a.The Department had received information that the applicant’s relationship with the sponsor was “contrived” and that the applicant had provided “a financial benefit” to the sponsor to ensure her support for his visa application (CB 256);
b.Department of Human Services’ records for the sponsor were received on 22 September 2015 (CB 256), which indicated that she had never declared her relationship with the applicant to the Department of Human Services (CB 257);
c.A Departmental officer attempted to contact the applicant and sponsor numerous times by telephone on 18, 21 and 22 December 2015 (CB 256); and
d.A Departmental officer contacted the applicant’s representative by telephone and invited the applicant to comment on adverse information but no response had been received (CB 256).
The Tribunal
8.On 9 January 2016, the applicant applied to the Tribunal for review of the delegate’s decision (CB 274-275).
9.By a letter dated 23 November 2016, the applicant was invited to attend a hearing scheduled for 19 December 2016 (CB 355-358), which was postponed to 25 January 2017 (CB 368-370) and then adjourned at the applicant’s request (CB 446-447).
10.On 20 March 2017, the Tribunal wrote to the applicant requesting DNA evidence of his claimed biological relationship with [the sponsor’s child] (CB 458-461) and invited him pursuant to s 359A to comment on or respond to (CB 454-457): an allegation received by the Department that the applicant was not in a spousal relationship with the sponsor and was in a relationship with Ms Thu Thao Nguyen; movement records obtained by the Department that indicated he had travelled in and out of Australia with Ms Nguyen while holding a Visitor visa and a Student visa; and his travel to Vietnam with Ms Nguyen between 29 May 2013 and 15 June 2013 and between 18 January 2015 and 7 March 2015, when he was also not accompanied by the sponsor.
11.On 4 April 2017, the applicant’s representative responded to the Tribunal’s s 359A invitation by email submitting that: the applicant and Ms Nguyen had been friends since they attended high school together; Ms Nguyen was “happily married” and had her own family; the applicant had travelled to Vietnam in 2013 and 2015 for family reasons; in 2013 Ms Nguyen travelled to Vietnam for a holiday; and in 2015 Ms Nguyen arranged her trip to Vietnam so that she could accompany the applicant as she needed his help to carry “a lot of gifts and souvenirs” (CB 462).
12.On 7 April 2017, the Tribunal invited the applicant to a re-scheduled hearing on 4 May 2017 (CB 466-467). Following the hearing on 4 May 2017 (CB 521-523), the applicant’s representative provided a further submission to the Tribunal by email on 18 May 2017 addressing concerns raised by the Tribunal during the hearing in relation to the sponsor’s failure to declare her relationship with the applicant to the Department of Human Services, the applicant’s “refusal” to undertake a DNA test and the applicant and sponsor’s “lack of knowledge” and inconsistencies in their evidence about various matters (CB 526-532).
13.On 24 May 2017, the applicant’s representative emailed a further submission to the Tribunal that stated the applicant had not agreed to undertake a DNA test because: the sponsor was pregnant with the couple’s third child at the time; her “stress …caused the lost (sic) of their second child”; and undertaking a DNA test would have caused the sponsor to feel humiliated and magnify her stress and anxiety. The representative requested that the Tribunal defer making its decision until after the birth of their child, as the applicant planned to explain to the sponsor that he was prepared to undertake DNA testing as requested after the birth (CB 557).
14.On 29 May 2017, the Tribunal wrote to the applicant inviting him to provide evidence that DNA testing had been arranged (CB 566-568). On 31 May 2017, the applicant’s representative responded that he had “no plan” to arrange a DNA test (CB 569).
The Tribunal’s Decision
15.On 6 January 2016, the Tribunal affirmed the delegate’s decision (CB 573-584).
THE TRIBUNAL’S REASONS
In section B of his written submissions filed on 19 July 2021, the applicant provided the following summary of the Tribunal’s reasons:
1.The Tribunal did not accept the documentary evidence submitted to it as demonstrating that the Applicant and his wife were in a genuine spousal relationship, finding that such documents can be obtained whether or not the relationship was genuine: CB 575 at paragraph 8.
2.The Tribunal concluded that the Applicant’s credibility was undermined because:
(a)of his failure to inform certain government agencies such as the New South Wales Department of Housing: CB 575 at paragraph 9; and Centrelink of his living arrangements: CB 575 at paragraph 10-11];
(b)he failed to comply with the condition student visa: CB 576 at paragraph 13;
(c)his decision to consult a migration agent before he had formalised his marriage raised the inference that the applicant’s motivation in entering the marriage was to assist his migration to Australia: CB 576 at paragraph 14;
(d)he travelled overseas without his wife on two occasions and as the Department had received allegations that the Applicant was in a relationship with Ms Nguyen [CB 577 at paragraph 16], it gave weight to those allegations given that his wife did not travel with him: CB 577-578 at paragraph 18;
(e)of the Applicant’s refusal to undergo a DNA test to prove the paternity of his son: CB-578 at paragraph 18;
(f)the applicant could not recall the name of his wife’s obstetrician [CB-579 at paragraph 27(b)] or [the sponsor’s child’s] birth weight: CB-580 at paragraph 27(e)
(g)the applicant did not have adequate knowledge about his wife’s miscarriage: CB 580 at paragraph 30;
(h)the applicant could not remember the expected delivery date of his third child: CB 581 at paragraph 31.
3.The Tribunal did not accept that the Applicant was the father of [the sponsor’s child], the miscarried child or the third child with whom Ms Do was pregnant at the time of the hearing but even if he were the father, the Tribunal was not satisfied that the parties had a genuine commitment to their relationship: CB-581 at paragraph 33.
4.The Tribunal did not accept that the sponsor could not recall details of how they found their marriage celebrant: [CB-583 at paragraph 41] the location of her husband’s university course [CB-583 at paragraph 42] or how much money was in her bank account or that of the Applicant’s: CB- 582 at paragraph 35.
In his written submissions filed on 2 August 2021, the Minister provided the following summary of the Tribunal’s reasons:
The Tribunal’s Decision
15.On 6 January 2016, the Tribunal affirmed the delegate’s decision (CB 573-584).
16.The Tribunal accepted that the parties were validly married (CB 574, [7]) and acknowledged that “a substantial amount of documentary evidence” had been presented which sought to address the various aspects of the relationship, but did not accept that such evidence was “dispositive of the issues” because “such documents and evidence can be obtained whether or not the relationship is genuine” (CB 575, [8]).
17.In relation to the parties’ living arrangements (reg 1.15(3)(b)(ii)), the Tribunal found the applicant’s evidence that he had not informed the Department of Public Housing that he had been living with the sponsor and his mother-in-law in public housing since 2012 showed his “willingness” to be untruthful with various government agencies (CB 575, [9]).
18.The Tribunal noted the delegate’s decision indicated that the parties had failed to inform Centrelink about their marriage and recorded the applicant’s evidence at the hearing that he knew they were doing the wrong thing by not informing Centrelink but were “short on money” (CB 575, [10]). The Tribunal found this also indicated the parties were willing to provide false information to government agencies in order to achieve benefits and that their “deliberate decision” to provide false information to Centrelink was relevant to its assessment of their overall credibility and the truthfulness of their claims in relation to the Partner visa application (CB 575-576, [10]-[11]).
19.Whilst it accepted that just because the applicant had been untruthful with government agencies it did not necessarily follow that his relationship with the sponsor was not genuine, but noted that its adverse findings were not based solely on these matters but on a “variety of factors” (CB 576, [12]).
20.In relation to the applicant’s evidence that he had stopped studying “about half a year” after he had come to Australia on a Student visa, the Tribunal found that his apparent lack of concern about the fact that he had been breaching the condition on his Student visa for two years by not studying indicated that he was willing to be untruthful in his dealings with “Immigration” in order to stay in Australia (CB 576, [13]).
21.Based on the applicant’s evidence that when the parties decided to get married, they sought the assistance of a migration agent before finding a marriage celebrant, the Tribunal had concerns that the applicant’s motivation for entering the marriage was to assist his migration to Australia (CB 576, [14]). In addition, given the parties’ claim to have committed to the relationship after the applicant had stopped studying and “must have realised that he could not have obtained another student visa”, the Tribunal formed the view that the applicant lacked commitment to the relationship and that being able to remain in Australia was “the sole reason for the marriage” (CB 577, [14]).
22.In relation to the allegations about the applicant’s relationship with Ms Nguyen, the Tribunal: found the fact that Ms Nguyen was married did not necessarily mean she was in a genuine and committed relationship with her partner, in the same way that the applicant’s marriage to the sponsor did not necessarily mean that he was her spouse (CB 577, [15]); accepted that the applicant and Ms Nguyen had a close relationship but found that did not allay its concerns about his overseas travel with Ms Nguyen and not the sponsor (CB 577, [16]); and found the applicant’s explanations as to why he and Ms Nguyen had travelled to Vietnam at the same time in 2013 and 2015 were “utterly implausible” and “unconvincing” (CB 577, [17]). The Tribunal observed that it would not normally consider an allegation received by the Department to be “helpful or probative” but in this case found the applicant’s travel with Ms Nguyen and the fact that the sponsor had not accompanied him supported the allegation. Accordingly, the Tribunal placed some weight on the allegation which suggested that the applicant was in a relationship with Ms Nguyen and not the sponsor (CB 577-578, [18]).
23.The Tribunal also placed “significant weight” on the parties’ refusal to undertake DNA testing to confirm the paternity of the child (CB 578, [19]). The Tribunal found the applicant was “well aware” that the paternity of the child was a live issue and a significant one (CB 578, [20]). It was not satisfied that the sponsor would be adversely affected if her child was to undertake DNA testing, as claimed by the applicant, as it would not involve her or her unborn child in any way (CB 578, [21]). The Tribunal was also not satisfied that the applicant was unable to cover the cost of DNA testing, as he had been able to find the funds for the visa application, migration agent’s fees, the review fees and various other expenses (CB 579, [23]). The Tribunal found the parties’ refusal to undertake testing indicated that they were aware the applicant was not the father of the child (CB 579, [25]). On the basis of the applicant’s refusal to undertake DNA testing and his very limited knowledge about the child, the Tribunal was not satisfied the applicant was the father of the sponsor’s child (CB 578-580, [26]-[29]).
24.Further, given the applicant’s lack of knowledge about the circumstances of the sponsor’s miscarriage, the Tribunal was not satisfied that he was the father of the sponsor’s second pregnancy that resulted in miscarriage, or that the parties relied on each other for comfort or emotional support and found the sponsor’s decision to have children in another relationship indicated that the relationship was not to the exclusion of all others (CB 581, [30]-[32]).
25.The Tribunal had regard to and made express findings in relation to the matters contained in reg 1.15A(3)(a)(ii),(iii),(iv) and (v)1 (CB 581-582, [34]-[47]). The Tribunal relevantly:
a.Considered the financial aspects of the relationship (CB 582, [34]-[37]) and was not satisfied that they had any joint liabilities, pooled their financial resources or shared day-today household expenses (CB 582, [37]);
b.Accepted that there were a number of statements from third parties who were prepared to state that the relationship was genuine and that the couple had provided photographic evidence of joint social activities but found they had been “somewhat selective” in their presentation as a couple because of their failure to inform Centrelink and the Department of Housing about their marriage (CB 582, [38]);
c.Accepted the parties were living together but found that did not necessarily mean they had established a joint household and was not satisfied that the parties had joint responsibility and care for the child (CB 582, [39]); and
d.Was not satisfied that the couple provided each other with companionship and emotional support or that they saw the relationship as a long term one or had a mutual commitment to the relationship (CB 584, [47) due to the sponsor’s poor recollection of the arrangements for their marriage (CB 583, [41]) and the applicant’s decision to travel to Vietnam while the sponsor was heavily pregnant (CB 583, [45]-[46]).
26.Whilst the Tribunal accepted that certain aspects of the relationship pointed to its genuine nature, it found that the applicant and sponsor were not credible and was not satisfied their relationship was genuine and continuing or to the exclusion of others (CB 384, [48]-[49]).
27.The Tribunal affirmed the decision under review on the basis that it was not satisfied the applicant met cl 801.221 of Schedule 2 to the Regulations (CB 384, [50]-[52]).
LEGISLATION

Section 5F of the Migration Act 1958 (“the Act”) provides that:
(1)For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2)      For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c)the relationship between them is genuine and continuing; and
(d)they:
(i)        live together; or
(ii)       do not live separately and apart on a permanent basis.
(3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Reg.1.15A of the Migration Regulations 1994 (“the Regulations”) provides that:
(1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)       a Partner (Migrant) (Class BC) visa; or
(b)       a Partner (Provisional) (Class UF) visa; or
(c)       a Partner (Residence) (Class BS) visa; or
(d)       a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)      The matters for subregulation (2) are:
(a)       the financial aspects of the relationship, including:
(i)        any joint ownership of real estate or other major assets; and
(ii)       any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day‑to‑day household expenses; and
(b)       the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii)any joint liabilities; and
(iii)any sharing of the responsibility for housework; and
(c)       the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d)       the nature of the persons’ commitment to each other, including:
(i)        the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv)whether the persons see the relationship as a long‑term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
THE PROPOSED AMENDED GROUNDS
The applicant filed his initiating application in this court on 6 July 2017. By orders made by the registrar on 6 March 2018, the applicant was given leave to file and serve an amended application by 28 days prior to the final hearing. As the final hearing was listed on 10 August 2021, the applicant was required to file and serve any amended application by 13 July 2021.
The applicant filed a proposed amended application six days late, on 19 July 2021, without leave. The question of whether the applicant would be permitted to rely on the proposed amended application was reserved to the final hearing. At the final hearing, the parties indicated that they would be content for the question to be dealt with in the reserved judgment, and argued the points fully.
The Minister opposed leave being granted to include the proposed new ground 2, on the basis that it was not arguable, but did not oppose leave being granted to amend ground 1(d), as proposed in the document filed on 19 July 2021. The proposed amendment to ground 1(d) added particulars (vi) to (viii).
Consequently, I will order that the application be deemed to include in ground 1(d) particulars (vi) to (viii) as set out in the proposed amended application filed on 19 July 2021, and consider below whether the applicant should be given leave to rely on the proposed new ground 2.
It is also worth noting at this stage that the applicant expressly disavowed reliance on the point raised in He v Minister for Immigration and Border Protection (2017) 255 FCR 41; (2017) 161 ALD 1; [2017] FCAFC 206, which required the Tribunal to expressly or impliedly deal with the matters mentioned in each of the paragraphs and subparagraphs of reg.1.15A(3) of the Regulations.
GROUND 1
The first ground of review in the amended application filed on 19 July 2021 is:
1. The Tribunal failed to determine the review application according to law.
Particulars
(a)The Tribunal was required by sections 5F(2)(a)-(d) of the Migration Act 1958 (Cth) (as amended – “the Act”) and clause 801.211 (2)(a) of part 820 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) to determine whether the Applicant and his sponsor were in a genuine, spousal relationship to the exclusion of all others.
(b)Pursuant to section 5F(3) of the Act, regulation 1.15A(3)(a)-(d) requires the Tribunal to take into account a number of matters including the financial aspects of the relationship, the nature of the couple’s household, the social aspects and the nature of the couple’s commitment to each other.
(c)In determining that the Applicant was not in a genuine, mutually committed spousal relationship, the Tribunal took into account irrelevant considerations such as:
(i)the failure of the sponsor’s mother to notify the New South Wales Department of Housing (“Housing NSW”) that the Applicant was living at the premises provided by Housing NSW;
(ii)the failure of the sponsor to notify Centrelink that she was in a married relationship with the Applicant;
(iii)the Applicant’s purported non-compliance with his student visa conditions;
(iv)The Applicant and his sponsor’s decision to open but not use a Westpac bank account; and
(v)The Applicant’s inability to remember the exact weight and length of his infant son at birth.
(d)The Tribunal conducted the hearing in manner that would cause a reasonably well informed observer to conclude that the Tribunal had reached a decision prior to the hearing that was not amenable to change regardless of the documentary and oral evidence submitted by the Applicant.
(i)The Applicant refers and repeats the matters specified in paragraph 1(c) above.
(ii)The Applicant provided extensive documentation to demonstrate the matters specified in regulation 1.15A(3)(a)-(d) but at paragraph 35 of its reasons for decision, the Tribunal dismissed that documentation as contrived.
(iii)The Applicant provided medical and psychological evidence concerning the Sponsor’s fragile mental state and inability to cope with stress since she suffered a miscarriage but this evidence was dismissed by the Tribunal at paragraph 43 of its reasons for decision as “self-serving and unreliable”.
(iv)At paragraph 19 of its reasons for decision, the Tribunal states that the Applicant and his sponsor refused to undertake DNA testing to determine the paternity of their son even though the couple were not requested to do so by either the First Respondent’s delegate or the Tribunal.
(v)The Tribunal’s reasons indicate it doubted that the Applicant was the father of the sponsor’s child and elevated DNA testing to a mandatory pre-requisite to a finding that the couple were in a genuine, spousal relationship yet the Tribunal then stated at paragraph 33 of its decision that even if it were to accept that the Applicant was the father of the sponsor’s child, the Tribunal did not consider the circumstances of the case indicated that the couple were committed to a genuine spousal relationship.
(vi)The Tribunal noted in at paragraph 24 of its reasons that in his submissions dated 25 May 2017, the Applicant had stated that he would be willing to undergo a DNA test after the birth of the couple’s third child. The Tribunal was highly selective in its citation of the Applicant’s evidence in that it found that the Applicant’s credibility was undermined because he had stated that the couple could not afford the cost of the DNA test whereas the Applicant had stated in his submission that he wished to defer the DNA test because he did not wish his wife to be subjected to further stress and risk another miscarriage.
(vii)The Tribunal’s selective use of the evidence before it and the belligerent tone in which it conducted the hearing from the outset raises a strong inference that it had approached the review with a closed mind.
(viii)The Tribunal’s decision was contrary to the evidence it cited in paragraph 48 of its reasons for decision.
As can be seen, ground 1 contains two subgrounds, namely:
(a)taking into account irrelevant considerations: ground 1(c); and
(b)apprehended bias: ground 1(d).
GROUND 1(C): IRRELEVANT CONSIDERATIONS
As is well known, the test for whether a decision maker took into account irrelevant considerations was explained by Mason J (as his Honour then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 162 CLR 39 to 42 as follows:
15. The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s.5(2)(b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:
(a)The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ... The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation[1947] EWCA Civ 1; (1948) 1 KB 223, at p 228, that a decision-maker must take into account those matters which he “ought to have regard to" should not be understood in any different sense in view of his Lordship’s statement on the following page that a person entrusted with a discretion” must call his own attention to the matters which he is bound to consider".
(b)What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.
(c)Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision … A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision …
(d)The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned … .It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power … I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, at pp.230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss.5(2)(g) and 6(2)(g) of the ADJR Act in these terms. The test has been embraced in both Australia and England … However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied … But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice … . So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.
(e)The principles stated above apply to an administrative decision made by a Minister of the Crown … However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.
In the present case, the applicant did not explain why the matters complained of were irrelevant, except by saying that the matters did not go directly to the genuineness of the relationship. However, that submission does not take account of the fact, discussed below, that the Tribunal was entitled to consider the credibility of the applicant and the sponsor, and rely on evidence unrelated to the relationship for that purpose.
The Minister submitted that the nominated matters were relevant, because the Tribunal was required by reg.1.15A(2) of the Regulations to consider “all of the circumstances of the relationship”. I am not entirely persuaded by that argument, as the applicant’s non-compliance with the conditions of his student visa had, at most, a tenuous connection to the relationship. However, the other matters mentioned in the previous paragraph can be fairly characterised as being among the circumstances of the relationship, and therefore relevant.
In any event, I will address the various matters in order.
GROUND 1(C)(I)
Ground 1(c)(i) is:
the failure of the sponsor’s mother to notify the New South Wales Department of Housing (“Housing NSW”) that the Applicant was living at the premises provided by Housing NSW …
The Tribunal addressed the applicant’s failure to notify Housing New South Wales (“Housing NSW”) that the applicant was living at the premises provided by Housing NSW in paragraphs 9 and 12 of its reasons for decision, which are as follows:
9.The applicant informed the Tribunal that he and the sponsor have been living with his mother in law in public housing since about 2012 but he stated he did not inform the Department of Housing about his residence there. The applicant suggested that he was not aware that he had to inform the agency but the Tribunal does not accept that either the applicant, or his partner or his mother in law, who is the principal tenant, would be unaware of their obligations to inform the Department about the tenants living at the premises. Notably, the sponsor told the Tribunal that they did inform the Department of Housing and that she told the applicant about it. In his post-hearing submission to the Tribunal, the applicant claims that they are unsure whether the Department of Housing was informed. The issue of concern to the Tribunal is not whether the Department of Housing was informed but with the applicant’s conduct concerning his obligations towards government agencies. The applicant appeared to be indifferent about his legal obligations towards the Department of Housing, which is (sic) of concern to the Tribunal because in the Tribunal’s view, it shows his willingness to breach the law and to be untruthful with various government agencies.
…
12.The Tribunal acknowledges the representative’s submission to the Tribunal of 19 May in which he argues that the couple’s decision not to provide information about the relationship to various government agencies does not mean the relationship is not genuine and that this is not uncommon. The Tribunal accepts that submission but the Tribunal does not draw a conclusion that the relationship is not genuine only because it was not declared to Centrelink and housing authorities. The Tribunal’s conclusion is that the applicant and the sponsor are not persons of credibility and that they are willing to be untruthful in their dealings with the government agencies to obtain a favourable outcome. The issue here is their overall credibility and that is relevant to the issues that arise for the determination of this Tribunal. Further, the Tribunal’s findings are not based solely on the couple’s failure to inform government agencies about the relationship but on a variety of factors which are set out in this decision. As for the claim that the applicant was not born in Australia and is not familiar with the government arrangements, the Tribunal finds that explanation unpersuasive. Firstly, having lived in Australia, the applicant could have acquired such knowledge and secondly, an obligation to provide truthful information to government agencies is not exclusive to Australia and the Tribunal is of the view that the applicant would be well aware of it from Vietnam. The Tribunal also does not accept the applicant’s argument that a particular level of intelligence or mental complexity is required to be cognisant of one’s obligation to provide truthful information to government agencies. The Tribunal is mindful that the claimed low level of education and mental complexity has not precluded the partners from leading normal lives and engaging in daily activities. It did not preclude the applicant from seeking and obtaining a Student visa in Australia and engaging in at least some study in Australia. Their evidence to the Tribunal is that they specifically discussed the requirement to inform Centrelink about the relationship but decided not to because they did not want the sponsor’s income to be affected. That is, the decision was not made because of the couple’s lack of understanding or any form of incapacity but it was a deliberate decision to preserve their income. The Tribunal is not satisfied that the couple’s particular characteristics prevented them from being truthful with the government agencies.

The issue went to the applicant’s credibility, and what the Tribunal appears to have perceived to be the applicant’s indifference to telling the truth to government agencies. The Tribunal appears to have relied on that matter, among many others, when it said at paragraph 48 of its reasons for decision that:
48.The Tribunal acknowledges that much of the couple’s oral evidence was consistent (despite the claimed poor memory and mental health issues affecting the sponsor). The Tribunal acknowledges that the parties have considerable knowledge about each other. The Tribunal acknowledges there is a substantial amount of supporting documentary evidence and the Tribunal accepts that certain aspects of the relationship point to its genuine nature. Against these considerations, the Tribunal has formed the view that both the applicant and the sponsor are not persons of credibility. The Tribunal has formed the view that the applicant is not the father of the sponsor’s children (the son and the two unborn children) and the Tribunal is not satisfied the relationship is to the exclusion of all others.
It was not irrelevant, in the Peko-Wallsend sense, for the Tribunal to assess the applicant’s reliability as a witness, and to rely on the applicant’s dealings with other government agencies for that purpose. Moreover, the failure to disclose to Housing NSW where the applicant lived went to the question of public declarations about the relationship, which in turn went to the social aspects of the relationship. The Tribunal was bound to consider that issue.
GROUND 1(C)(II)
Ground 1(c)(ii) is:
the failure of the sponsor to notify Centrelink that she was in a married relationship with the Applicant[.]
The Tribunal addressed this issue in paragraphs 10, 11 and 12 of its reasons for decision. Paragraph 12 is set out above and paragraphs 10 and 11 are as follows:
10.The primary decision record indicates the visa applicant and the sponsor also failed to inform Centrelink about the marriage. The applicant explained to the Tribunal that he knew he had to inform Centrelink but they were short of money and did not have enough to cover their expenses, so they did not inform. The applicant said he knew he was doing the wrong thing. The applicant’s evidence indicates that the applicant was well aware that he and the sponsor were providing false information to Centrelink and breaching the law by doing do, but the couple chose to do it anyway because they wanted to get benefits from Centrelink. The applicant expressly told the Tribunal that he knew the information they provided to Centrelink was incorrect but they discussed it with the sponsor and decided to provide incorrect information in order to get the benefits. That indicates that both the applicant and the sponsor are not persons of credibility and that they are willing to provide false information to government agencies in order to achieve benefits. In the Tribunal’s view, that raises serious concerns about the couple’s overall credibility and their evidence concerning the nature of their present relationship.
11.The sponsor told the Tribunal that she made a mistake in not informing the Centrelink and that the applicant should not be punished for it. The Tribunal is of the view that the issue here is more significant than a mere mistake by the sponsor because the applicant’s evidence to the Tribunal is that the partners made a deliberate decision to provide false information to Centrelink about their marital status because they were short of money and wanted to get more. It was not a mistake but a deliberate and considered decision by both parties to falsify their claims to obtain a benefit. In the Tribunal’s view, that is relevant in assessing the couples’ overall credibility and the truthfulness of their claims in relation to the present application.
Again, the Tribunal appears to have relied on that matter in making its findings at paragraph 48 of its reasons for decision. And again, it was not irrelevant, in the Peko-Wallsend sense, for the Tribunal to assess the applicant’s reliability as a witness, and to rely on the applicant’s dealings with other government agencies for that purpose. Moreover, the failure to disclose to Centrelink that the applicant and the sponsor cohabited went to the question of public declarations about the relationship, which in turn went to social aspects of the relationship. The Tribunal was bound to consider that issue.
GROUND 1(C)(III)
Ground 1(c)(iii) is:
the Applicant’s purported non-compliance with his student visa conditions …
The Tribunal addressed this issue at paragraph 13 of its reasons for decision, which is as follows:
13.The applicant told the Tribunal that after coming to Australia on a Student visa, he did the course for about half a year but stopped studying in 2012 because his parents divorced. Yet, the applicant did not depart Australia, despite the fact that he was holding a Student visa and believed he could not continue with his course. The applicant explained to the Tribunal that he was depressed and did not know what to do and did not want to return to Vietnam to see his parents being divorced. The applicant’s evidence is that he had the Student visa until about 2014 but did not study since 2012. The fact that the applicant was breaching his Student visa conditions by not engaging in any studies for a period of about two years did not appear to have concerned him. Again, the Tribunal is concerned by the applicant’s willingness to be untruthful in his dealings with Immigration in order to remain in Australia.
Again, the Tribunal appears to have relied on that matter in making its findings at paragraph 48 of its reasons for decision. And again, it was not irrelevant, in the Peko-Wallsend sense, for the Tribunal to assess the applicant’s reliability as a witness, and to rely on the applicant’s dealings with the Department of Home Affairs for that purpose.
GROUND 1(C)(IV)
Ground 1(c)(iv) is:
The Applicant and his sponsor’s decision to open but not use a Westpac bank account …
The Tribunal addressed this issue in paragraph 36 of its reasons for decision. Paragraphs 34, 35 and 37 of the Tribunal’s reasons for decision are also relevant, for context. Paragraphs 34 to 37 of the Tribunal’s reasons for decision are as follows:
34.The Tribunal has considered the financial aspects of the relationship. There is evidence that the couple operate a joint bank account and they provided documentary evidence of various transactions and joint purchases and joint names on various documents. As noted above, the fact that the parties put both names on various documents does not necessarily indicate that they pool their resources because no verification is done as to how the funds are obtained.
35.The applicant’s evidence to the Tribunal is that they have a joint account and the sponsor has a separate account in her own name where the Centrelink payments are made. The applicant could not state how much money the sponsor had in her own account while the sponsor did not know how much money there was in either her own account or the joint account. The Tribunal asked the parties about recent significant transactions on the joint account. The applicant said a recent significant transaction was a purchase of his brother’s air ticket from New Zealand. The sponsor was unaware of that purchase. The applicant explained to the Tribunal that his brother had repaid the amount, so it was not an expense, however, the Tribunal’s question was about the significant transactions in the account and not expenses. The applicant subsequently stated to the Tribunal in his written submission that his wife knew about the sale of the car but while the Tribunal accepts that she may have been familiar with some transactions, the Tribunal has formed the view that the sponsor had little familiarity with the operation of the joint account. In the Tribunal’s view, if the parties did genuinely operate a joint account, they would have greater awareness of the transactions on that account. The Tribunal acknowledges that the account shows a variety of transactions and that there were a number of receipts provided with the application but the Tribunal is concerned that these arrangements were made only for visa purposes.
36.The applicant presented with his application evidence of a joint account at Westpac. He told the Tribunal that this account was only used for a short period and he had no recollection of that account. Both the applicant and the sponsor told the Tribunal they did not use the Westpac account because they did not like the bank, which brings into questions (sic) their motivation in opening the account with the bank they did not like and which they did not intend to use. The Tribunal is concerned that they did so to assist the applicant’s migration application.
37.The Tribunal acknowledges that the parties do have a joint account which shows transactions and there is other evidence of joint purchases. However, given their limited knowledge relating to their financial arrangements, the Tribunal is not satisfied the couple pool their resources. The Tribunal has formed the view that the documentary evidence was prepared for the purpose of the visa application and that it does not accurately reflect the parties’ financial arrangements. The Tribunal is not satisfied the applicant and the sponsor have joint liabilities, that hey pooling (sic) of financial resources or have legal obligations owed to the other. The Tribunal is not satisfied they [have a] sharing of day-to-day household expenses.
As the Tribunal stated at paragraph 36 of its reasons for decision, it was concerned that the applicant and respondent opened the joint Westpac account only to assist the applicant’s migration application. All of the bank accounts of the applicant and his sponsor were obviously relevant considerations, because the Tribunal was expressly required to consider the financial aspects of the relationship. It was not irrelevant that the applicant and the sponsor opened a joint account that they did not use. It was not an irrelevant consideration for the Tribunal to be concerned that the joint account was opened to assist the applicant’s migration application, especially in view of the Tribunal’s various other reasons for doubting the credibility of the applicant and the sponsor.
GROUND 1(C)(V)
Ground 1(c)(v) is:
The Applicant’s inability to remember the exact weight and length of his infant son at birth…
The Tribunal addressed this issue in paragraphs 26, 27 and 28 of its reasons for decision, which are as follows:
26.Having regard to the above concerns, the Tribunal is not satisfied that the applicant is the father of the child.
27.The Tribunal is supported in its view by the applicant’s very limited knowledge about the child. Thus, the applicant
a.could not recall when he found out about the sponsor’s pregnancy, although he said it was a month after she conceived
b.could not recall the name of the sponsor’s obstetrician, stating it was an English name which was hard to pronounce. The Tribunal is mindful that the applicant was previously undertaking a Bachelor of Finance in Australia and that may suggest he should have sufficient English to remember one English name.
c.told the Tribunal he only attended one or two medical appointments with the sponsor during her pregnancy because he was too busy working and his mother in law was taking care of his wife. The applicant said the obstetrician was in Cabramatta but could not state the address or the name of the medical centre.
d.said the sponsor was in hospital following the birth of the child for ‘a few days’ but said he could not remember how much time she spent in hospital. He ultimately suggested four or five days but he said he was not certain.
e.could not state the weight or the height of the child at birth. He thought the weight was under 3 kg but he did not really know and he did not know the height at all. The applicant explained to the Tribunal that he was stressed and was concerned about the health and well-being of his wife and child but he also told the Tribunal there was nothing wrong with the child’s health and the Tribunal is mindful that the applicant had ample time since the stressful day of the child’s birth to think about that information.
28.The Tribunal has formed the view that the applicant has minimal knowledge relating to the birth of the child and for that reason also, the Tribunal is not satisfied that the applicant is the father of that child.
As can be seen, the Tribunal formed the view that the applicant is not the father of the sponsor’s child for the reasons discussed in the paragraphs preceding paragraph 26 of its reasons for decision. Those reasons largely concerned the applicant and the sponsor’s decision not to have a DNA test to prove the applicant’s paternity. The subsequent reasons, set out in paragraph 27, including the applicant’s ignorance of the child’s birth weight and length, were expressly stated to be matters that supported the Tribunal’s view, previously formed, that the applicant was not the father. However, in paragraph 28 of its reasons for decision, the Tribunal did say that the applicant’s ignorance of five matters in relation to the child’s gestation and birth was an independent reason for not accepting that the applicant was the child’s father.
The applicant’s knowledge of various matters about the sponsor’s child’s gestation and birth were not irrelevant, in the Peko-Wallsend sense, because a detailed knowledge of the various matters mentioned would have supported a finding that the applicant was the father. While it might be irrelevant, in the sense of trifling, that a person cannot recall his first-born child’s birth weight and length two years after the event, it was not an irrelevant consideration in the Peko-Wallsend sense when taken with the various other matters that the applicant did not know about the sponsor’s child’s gestation and birth.
Moreover, the applicant’s ignorance of many details about the gestation and birth of the sponsor’s child went to the question of whether the applicant really was the father of the child, and that went to the question of the genuineness of the relationship between the applicant and his sponsor.
I am not persuaded that the Tribunal took into account any irrelevant considerations.
GROUND 1(D): APPREHENDED BIAS
Ground 1(d) begins as follows:
The Tribunal conducted the hearing in manner that would cause a reasonably well informed observer to conclude that the Tribunal had reached a decision prior to the hearing that was not amenable to change regardless of the documentary and oral evidence submitted by the Applicant.
The applicant then set out eight sub grounds, which I address below in order.
The test for apprehended bias is well established. It arises where a fair-minded, properly informed, lay observer might reasonably think that the decision-maker might not bring an impartial mind to the making of the decision: Re Refugee Review Tribunal; Ex parte H(2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20; [2001] HCA 28 at [28] and [29].
In Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng(2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 178 ALR 421; (2001) 75 ALJR 679; (2001) 22(6) Leg Rep 2; [2001] HCA 17 at [72], it was explained that a mind is not impartial if it is:
... so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
Conduct which might give rise to a reasonable apprehension of bias in curial proceedings might not do so in administrative proceedings, where the decision-maker undertakes most if not all of the questioning: NADH of 2001 v Ministerfor Immigration and Multicultural and Indigenous Affairs(2004) 214 ALR 264; [2004] FCAFC 328 at [19].
In his written submissions on this issue, the Minister made the following additional points:
35.… It is not permissible to have recourse to the decision-record in order to establish apprehended bias.⁴ Nor, in any event, should any inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Tribunal’s reasons.⁵
36.An allegation of apprehended bias is serious and must be “distinctly made and clearly proved”.⁶In the context of the Tribunal, “robust and forthright testing of the [applicant’s] claims by the Tribunal … does not sustain a finding of apprehended bias”.⁷ Further, a decision-maker is obliged by the principles of apprehended bias to appear to keep an open mind, not an empty mind. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.
: Michael Wilson & Partners Ltd v Nicholls (2001) 244 CLR 427 at [67]-[68]; MZZBT v Minister for Immigration & Anor [2013] FCCA 462 at [45]
: VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]
: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] (Jia Legeng)
: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [24], quoting with approval NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [19]
In Michael Wilson & Partners Ltd v Nicholls(2011) 244 CLR 427; (2011) 282 ALR 685; (2011) 86 ALJR 14; [2011] HCA 48, Gummow A-CJ, Hayne, Crennan and Bell JJ said:
[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.
[68]The Court of Appeal was wrong to take account as it did of the reasons for judgment published by Einstein J after the trial in deciding whether in this case there was a reasonable apprehension of bias. ...
(emphases added), (footnotes omitted).
Basten JA explained in Goodwin v Commissioner of Police[2012] NSWCA 379 at [15] the effect of Michael Wilson as follows:
The test of reasonable apprehension of bias, formulated by reference to how a fair-minded bystander might view the matter before determination of the case, cannot rely on the final judgment: Michael Wilson & Partners Ltd v Nicholls[2011] HCA 48; 244 CLR 427 at [67] (Gummow ACJ, Hayne, Crennan and Bell JJ). Where a party seeks to rely upon a final judgment, following an earlier recusal application based on a reasonable apprehension of bias, it will usually be necessary to plead actual bias: Michael Wilson & Partners at [65] and [68]. Actual bias was not relied upon in the present case and it would be necessary, therefore, to put to one side any concerns arising from the flaws in the approach adopted by the primary judge, as revealed in the final judgment, in order to address the challenge based on apprehended bias, raised at the commencement of the second hearing below. ...

However, more recently, in CNY17v Minister (2019) 268 CLR 76; (2019) 375 ALR 47; [2019] HCA 50, Kiefel CJ and Gageler J in the High Court said:
[20]The question whether conduct has resulted in a breach of the bias rule falls to be determined in light of the totality of the circumstances that exist at the time when that question arises. Where the question arises for determination after the Authority has made a decision on a review, the totality of the circumstances includes the decision and the reasons that the Authority has given for the decision.
[21]Establishment of an apprehension of bias on the part of the Authority then requires the taking of two essential steps: first, identification of the factor which it is postulated might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits; and, second, articulation of how that factor might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits. Taking those two steps is necessary to provide the foundation for the third and critical step in the application of the bias rule. That is the step of assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred. In taking that third step, “it is the court’s view of the public’s view, not the court’s own view, which is determinative”.
(footnotes omitted).
Also in CNY17, Nettle and Gordon JJ said at [55]:
As the rule applies to any decision which is subject to the principles of procedural fairness, it applies “not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers”. The rule is concerned with public confidence in the administration of justice. It is important to the quality of decisions being made and to the confidence and cooperativeness of individuals affected by those decisions. By enhancing the appearance and actuality of impartial decision-making, it fosters public confidence in decision-makers and their institutions.
(footnotes omitted).
Also in CNY17, Edelman J said at [135]:
[135]Apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry. If apprehended bias is assessed at the conclusion of a hearing, as the appeal in this case requires, then the reasons for decision might reveal matters relevant to the consideration of whether a reasonable apprehension exists. It would be absurd if, on the one hand, remarks made by the decision maker during the course of a hearing could be considered as part of an assessment of the presence of reasonable apprehension of bias but, on the other hand, remarks at the conclusion of the proceeding could not. However, remarks at the conclusion of a proceeding or in reasons for decision are only one of the circumstances to take into account. In Michael Wilson & Partners Ltd v Nicholls, a joint judgment of four members of this Court cautioned against the error of assuming a reasonable apprehension of a decision maker’s bias and using comments in the reasons for judgment by the decision maker to “confirm, enhance or diminish the existence of a reasonable apprehension of bias”.
(footnotes omitted).
I take it therefore that the court can look at the Tribunal’s reasons for decision, as one of the circumstances of the matter, to determine whether a reasonable apprehension of bias may have arisen.
When assessing whether a reasonable apprehension of bias may have arisen in Tribunal proceedings, it is important to remember that s.360 of the Act relevantly provides that:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it ...
…
That means that the scheme of the Act is that, before a Tribunal hearing commences, the Tribunal usually would have considered all of the material before it, and would have concluded that it was insufficient to decide the review in the applicant’s favour. That is, typically, the Tribunal commences a hearing unsatisfied of the merits of the applicant’s case. If the Tribunal had been satisfied of the merits of the applicant’s case, the Tribunal would have decided the matter in the applicant’s favour, and there would have been no hearing at all.
In some cases, prior to a hearing, the Tribunal will be simply unsatisfied of the merits of an applicant’s case. In other cases, the Tribunal might have formed a negative view, or even a strongly negative view, of the merits of the applicant’s case prior to the commencement of the hearing. However, that circumstance does not give rise to a reasonable apprehension of bias. The question is whether the negative view, or strongly negative view, is amenable to change in the light of the new evidence and submissions that emerge during the hearing, or in post hearing submissions.
THE APPLICANT’S SPECIFIC SUBMISSIONS RE APPREHENDED BIAS
The applicant’s written submissions on apprehended bias were not directed specifically to any particular sub ground. I will address those written submissions first, and then address each of the individual matters raised by the applicant in relation to the reasonable apprehension of bias point, and then consider their cumulative effect.
The sponsor’s inability to recall certain matters
The applicant said in section C at paragraphs 5 to 7 of his written submissions filed on 6 August 2021:
5.… In the present case, the Tribunal was highly critical of Ms Do’s inability to recall details of financial transactions, how much was in her and the Applicant’s bank accounts, where the Applicant’s university was located or how they found their marriage celebrant. The Tribunal had evidence before it from Ms Do’s general practitioner that she was awaiting an appointment to consult a psychologist as there was a strong history of mental illness in her family and she was suffering from poor concentration and significant increase in forgetfulness [CB 393].
6.The Tribunal also had a report from a psychologist, Dr Michael King, that Ms Do had poor memory and reasoning ability: CB 401. The Tribunal states at paragraph 21 of its reasons for decision [CB-578] that it acknowledged various medical reports concerning Ms Do and accepted that she suffers from a number of health issues. However, the Tribunal later in its reasons at paragraph 43 [CB-583], dismissed Dr King’s report because Ms Do obtained it after the hearing at the behest of her legal representative to address concerns the Tribunal had with Ms Do’s evidence.
7.In his post-hearing submission, the Applicant’s legal representative drew the Tribunal’s attention to Dr King’s report and noted that both the Applicant and Ms Do were assessed with scientifically accepted diagnostic tools in Vietnamese and English which revealed that they both had low capacity for mental complexity and average intelligence which could explain why they failed to inform government departments of their circumstances: CB- 528. The Tribunal dismissed Dr King’s report as self-serving and unreliable because it was prepared specifically to address the deficiencies in the oral evidence: CB-583 at paragraph 43. The Tribunal did not state in its reasons why it thought Dr King’s diagnostic tools or conclusions were in themselves unreliable. It is contended that dismissing corroborative evidence because it was intended to assist the Applicant’s case undermines the Tribunal’s ability to conduct its review: Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 at p. 377.
The applicant did not say precisely which paragraph or sentence of the Full Court’s decision in Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370; (1998) 54 ALD 654 at p.377 he relied on. However, it seems he probably intended to rely on the following passage, where Einfeld J said:
By itself the fact that the presentation of the letters was designed to assist the appellants’ case for refugee status says nothing about their veracity. Even if the letters were procured for that purpose, no definitive conclusion adverse to their truth could be drawn, especially on the ground that they arrived in Australia not long before the Tribunal hearing. If the appellants learned in November 1995 that the tenant and the sister could provide truthful material to support the arrest and detention of the sister-in-law and were advised that such material would assist their case at the Tribunal, it is obvious that letters to that effect would arrive in Australia not long before the hearing. The contemporaneity of these events, albeit much less precise than the Tribunal appears to have found or assumed, is therefore by itself not in the least suspicious. A positive finding that they were false would in these circumstances be unjustified by the facts found.
The Tribunal said in relation to the sponsor’s evidence:
41.The sponsor could not explain to the Tribunal where they found the marriage celebrant. She had difficulty remembering whether the celebrant was Vietnamese. She could not state whether they saw a migrant agent before or after they arranged the marriage but thought it was after they found the celebrant. The applicant’s evidence is that the marriage celebrant was recommended by their migration agent. The sponsor told the Tribunal that a long time has passed and she cannot remember but the Tribunal notes that this is the sponsor’s one and only marriage and it is of concern to the Tribunal that she has such poor recollection of these events.
42.The sponsor did not know where the applicant did his university course. She could not explain why the sponsor decided to remain in Australia instead of leaving Australia after he stopped studying. In his post-hearing submission the applicant explains that his wife suffers from poor memory and could not recall. The Tribunal is mindful that the sponsor’s poor memory did not affect her recollection of many other events and circumstances of this relationship. The applicant also suggests that the question was too complex for his wife to understand. The Tribunal has not formed the view that the sponsor had any difficulties understanding the question. Rather, she appears to have been unfamiliar with the answer and has not offered even a simple explanation, even if she was incapable of offering a complex one. The Tribunal notes that the parties claim to have been in a relationship by that time and the applicant claims he was very depressed as a result of his parents’ divorce. If these claims were true, it is of concern to the Tribunal that the sponsor would be either unaware or could not recall the applicant’s depression at the time the relationship started.
43.The Tribunal has considered the psychologist’s report provided to the Tribunal on 25 May. The Tribunal considers it problematic that the sponsor sought psychological assessment in January 2017 and again in May 2017 after the Tribunal hearing. She obviously sought that assessment in response to the Tribunal’s concerns arising from the couple's oral evidence and at the behest of her legal representative. The report indicates that the specific question posed to the psychologist is whether the sponsor’s memory could have been confused about aspects of her wedding ceremony. That clearly arises from the couple’s oral evidence at the hearing. The Tribunal has considerable concerns about the veracity and the probative value of a report that has been prepared specifically to address deficiencies in the presented evidence. In the Tribunal’s view, such evidence is self-serving and unreliable.
44.Nevertheless, the Tribunal has made allowances for the sponsor’s particular circumstances and for the parties’ general nervousness. The Tribunal notes that the adverse findings made throughout this decision are not only based on the sponsor’s poor recollection of events and the discrepancies in oral evidence but on a combination of factors, many of which are entirely unrelated to the sponsor, such as the applicant’s own evidence and the applicant’s conduct. The psychologist’s report does not alleviate the Tribunal’s concerns.
Following the Tribunal hearing, the applicant’s advisers asked a psychologist to provide a report. The psychologist said in his report dated 25 May 2017 that the applicant’s adviser asked him to answer a question “along the lines of”:
… is it possible that this client could become confused about one particular aspect of her wedding ceremony - in a situation where she is under scrutiny in a quasi-legal forum [CB559].
The sponsor’s evidence about the nationality of her wedding celebrant seems to be the “one particular aspect” of her wedding ceremony that the applicant was so concerned about that he sought further evidence from a psychologist. The sponsor’s evidence on this point was that her wedding celebrant was a Vietnamese person: transcript page 45, exhibit MP-1 to the unsworn affidavit of Maria Psihogios filed on 15 July 2021. However, according to the marriage certificate, the celebrant’s name was Jeff Prem Singh: CB171. If Mr Singh is in fact Vietnamese, it would have been easier, cheaper and more reliable for the applicant to obtain a statutory declaration to that effect from Mr Singh than to obtain a further psychologist’s report. It probably follows that the sponsor’s evidence about Mr Singh being Vietnamese was wrong. The applicant then had no option but to try to show that the sponsor had cognitive issues.
In these circumstances, the Tribunal had “considerable concerns” about the veracity and probative value of the psychologist’s report, and considered it to be self-serving and unreliable. The Tribunal did not expressly say so, but it is perhaps implicit that the Tribunal considered that the sponsor had exaggerated her cognitive issues for the purposes of the psychological assessment.
In any event, the Tribunal then went on to explain that the Tribunal had made allowances for the sponsor’s circumstances, and said that its decision was based on a combination of factors, many of which were entirely unrelated to the sponsor.
Meadows is obviously correct in saying that a letter being presented to assist an applicant’s case says nothing about the veracity of the letter. But, in the present case, unlike Meadows, the relevant document was obtained after the Tribunal hearing, to remedy a particular flaw in the sponsor’s evidence, and did not do so in a persuasive way. In those circumstances, the Tribunal was justified in being concerned about the probative value of the report, and regarding it as self-serving.
I do not consider that the Tribunal’s handling of this issue gives rise to a reasonable apprehension of bias.
Vietnamese cultural norms
The applicant said in section C at paragraphs 8 to 12 of his written submissions filed on 6 August 2021:
8.The legal representative’s post-hearing submission also drew the Tribunal’s attention to Vietnamese cultural norms which the Tribunal needed to take into account as Vietnamese people such as the Applicant who were not born or raised in Australia did not organise their lives in the way persons from a western culture might do, or have the same attitude towards details of pregnancy, miscarriage and DNA tests: CB 530-531.
9.The Tribunal’s attention was drawn to the judgment of Tamberlin J in Surya Cahyana v Minister for Immigration and Multicultural Affairs [1998] FCA 390 in which he held:
“The test must be applied with a due appreciation of the cultural context in which the marriage takes place. In Lynham v Director-General of Social Security (1984) 52 ALR 128 at 131, Fitzgerald J pointed out that: ‘… it is… important that the departmental officers or tribunal charged with the task at least take into account what is the norm for the peer group of the applicant. Only in this way can the legislation be fairly and justly accommodated to a multi-racial and otherwise diverse society”.
10.It is contended that the Tribunal failed to take into account Vietnamese cultural norms in determining whether the couple had a genuine commitment to their marriage and instead imposed its own values in assessing the relationship.
11.It is settled law in Australia that a couple can have a genuine and mutual commitment to a shared life even if they were not in love: Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5; (2016) 236 FCR 303 at 317[53]; 319[62]; or if aspects of their marriage were bad; Singh v Minister for Immigration [2016] FCCA 114 (“Singh”) or even if one party was motivated to marry to gain social or economic advantages: by Minister for Immigration, Local Government and Ethnic Affairs v Dhillon [1990] FCA 144 at [11]. In Singh supra, Judge Riley noted:
“The tribunal was clearly of the view that a fundamentally flawed relationship cannot simultaneously be a relationship in which the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others. That view is mistaken. There is clearly a significant percentage of marriages in which the parties have an appalling relationship. These marriages are nevertheless genuine and the parties to them, at least for a time, have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The family law jurisdiction of this court deals with the aftermath of such marriages on a daily basis” at [53].
12.The Tribunal appeared to be imposing its own value system on the Applicant and his wife. It equated the couple’s failure to inform government departments of their changed circumstances or to comply with student visa requirements as being inimical to their credibility in having a genuine marital relationship even though it accepted the witness statements submitted in support of the Applicant and his wife which attested to the genuineness of their relationship: CB 582 at paragraph 38.
The Tribunal expressly dealt with the alleged Vietnamese cultural norms about DNA tests at paragraph 20 of its reasons for decision saying:
… In evidence to the Tribunal the applicant said that DNA testing is not common in Vietnamese culture. The Tribunal does not accept that this is so. It is not uncommon for applicants who appear before this Tribunal, including Vietnamese applicants, to volunteer or agree to undertake DNA testing and the Tribunal is not satisfied that any cultural considerations prevent such tests to be done in the present case.
That finding was open to the Tribunal. It does not give rise to a reasonable apprehension of bias. Moreover, the applicant did not provide any evidence of Vietnamese cultural norms regarding DNA tests, apart from his own assertions. The Tribunal was entitled to dismiss those assertions, in the context of the applicant being dishonest in his dealings with Centrelink and dishonest in relation to his student visa and all the other evidence in the case. (Following the Tribunal hearing, the applicant did provide to the Tribunal a Vietnamese Cultural Profile. However, it did not address DNA tests).
I accept that the Tribunal seemed to have a middle class attitude to pregnancy care. My understanding is that public patients do not have a dedicated obstetrician.
I also accept that the Tribunal may have overemphasised the applicant’s and sponsor’s lack of knowledge about the baby’s length and weight. For young people having a baby in a foreign country, such details might be easily forgotten.
However, the weight given to particular items of evidence are matters for the Tribunal, and even errors of fact are not necessarily jurisdictional errors. It does not seem to me that these issues give rise to a reasonable apprehension of bias, in the overall context of the case. They were legitimate points for the Tribunal to raise.

In the transcript of the Tribunal hearing, at page 20 lines 29 to 38, the following appears:
MEMBER:The problem - let me just explain. The problem is that whether or not you’re in a genuine relationship, it’s not particularly difficult to get the documentary evidence. So you go to the bank and you open a joint account. I have no way of knowing whether you’re using that account or whether you set it up for immigration purposes. Or you put joint names on a bill. I have no way of knowing whether you both put money on the bill, or whether you’re just creating a piece of paper to show it to immigration. This evidence, this is not going to - in itself, is not going to be sufficient for me to be satisfied that you’re in a genuine relationship.
It was open to the Tribunal to not be satisfied by financial documents, in the context of all the other evidence in the case, on the basis that they could easily have been manufactured for migration purposes. The Tribunal, as a matter of natural justice, put its concerns to the applicant for comment. This passage does not give rise to a reasonable apprehension of bias.
c. transcript page 20, lines 39 to 42
In the transcript of the Tribunal hearing, at page 20 lines 39 to 42, the following appears:
INTERPRETER: Yes, I mentioned to Member I think that in my opinion, from Member’s point of view, it doesn’t matter how many evidence I provide, it’s never going to be enough. Could Member please give me a chance to explain everything?
This issue was discussed above. In addition, following this passage, the Tribunal did give the applicant ample opportunity to explain everything. This passage does not give rise to a reasonable apprehension of bias.
d. transcript page 20, lines 46 to 47 and page 21, lines 1 to 2
In the transcript of the Tribunal hearing, at page 20 lines 46 to 47, and page 21 lines 1 to 2, the following appears:
INTERPRETER: The first thing I want to say that with Member, it doesn’t matter how many evidence I provide, it’s never going to be sufficient. And if I go ahead and do DNA test, my wife is not an ordinary- not a normal person. Doing DNA test going to be significantly affect her.
This passage is the applicant’s words, not the Tribunal’s. Therefore, it cannot give rise to a reasonable apprehension of bias on the Tribunal’s part. However, dealing with the effect of the DNA test on the sponsor, the Tribunal explained that the sponsor herself would not need to submit to the test, and the sponsor would know that the applicant was not doubting her fidelity because it would have been clear to her that the DNA test was sought by the Tribunal, not the applicant. There was nothing untoward in the Tribunal proceeding in that way.
e. transcript page 21, lines 19 to 25
In the transcript of the Tribunal hearing, at page 21 lines 19 to 25, the following appears:
INTERPRETER: As I requested before, could Member please let me explain the whole thing before you asking me other questions. As I mentioned, according to Vietnamese culture that would be the last resort when the husband does not trust the wife. When a man think that the wife sleeping around, having affairs. Yes, secondly, it’s a wrong time to request that because my wife (indistinct) she doesn’t think like ordinary people do. My wife, at that time, could not bear with lots of pressure put on her.
This passage is the applicant’s words, not the Tribunal’s. Therefore, it cannot give rise to a reasonable apprehension of bias on the Tribunal’s part. In any event, the Tribunal did give the applicant ample opportunity to explain. The Tribunal’s response to the applicant was that the applicant and the sponsor were now in the territory of “last resort”, as they were pursuing a partner visa, where the Tribunal obviously had grave doubts about whether they were in a genuine, ongoing spousal relationship. Moreover, the Tribunal explained that the test would not be stressful for the sponsor if the applicant really were her child’s father. This passage does not give rise to a reasonable apprehension of bias.
f. transcript page 22, lines 10 to 13
In the transcript of the Tribunal hearing, at page 22 lines 10 to 13, the following appears:
INTERPRETER: As mentioned her way of thinking is not normal, it’s not the same way that ordinary people would think. As mentioned in our culture it would have a significant impact on my wife. My wife would feel that I don’t trust her.
This passage is the applicant’s words, not the Tribunal’s. Therefore, it cannot give rise to a reasonable apprehension of bias on the Tribunal’s part. In any event, the Tribunal dealt with the crux of this matter, observing that the sponsor would know that the DNA test was at the Tribunal’s request, not the applicant’s. Moreover, the Tribunal did not accept that Vietnamese culture prohibited a DNA test, saying at paragraph 20 of its reasons for decision:
… In evidence to the Tribunal the applicant said that DNA testing is not common in Vietnamese culture. The Tribunal does not accept that this is so. It is not uncommon for applicants who appear before this Tribunal, including Vietnamese applicants, to volunteer or agree to undertake DNA testing and the Tribunal is not satisfied that any cultural considerations prevent such tests to be done in the present case.
That finding was open to the Tribunal. The applicant provided a bundle of material about Vietnamese culture, but it did not address the question of DNA tests. This passage does not give rise to a reasonable apprehension of bias.
g. transcript page 22, lines 15 to 23
In the transcript of the Tribunal hearing, at page 22 lines 15 to 23, the following appears:
MEMBER:I do not accept that evidence, Mr Pham, because your wife would be perfectly well aware that we are doing DNA test for migration purposes and it has already been explained why the Department and the tribunal has concerns about your paternity. So I don’t think your wife will misunderstand that (indistinct) questioning faithfulness. You are doing this for migration purposes. So in the circumstances where you have refused to do the test on several occasions I might draw the conclusion that that is not your child.
In this passage, which followed immediately after the previous passage nominated by the applicant, the Tribunal explained that the DNA test was being sought by the Tribunal, so the applicant’s wife would not feel that the applicant was doubting her fidelity. The Tribunal then gave the applicant an opportunity to comment, as a matter of natural justice. This passage does not give rise to a reasonable apprehension of bias.
Paragraph 20
In section C in paragraph 20 of the applicant’s written submissions filed on 6 August 2021, the applicant said:
The Tribunal drew an adverse inference from the Applicant’s inability to remember the height of his first child when he was born: CB 580 at paragraph e. In response to the Tribunal’s questioning at the hearing about his child’s height and weight at birth, the Applicant responded that his child was 2.9 kilograms and that he was underweight: HT p. 22 at lines 38-40. However, he could not recall the child’s height as he was focused on the well-being of his wife and baby: HT p.22 at lines 45-48. The Tribunal pointed out that it had doubts as to whether the child was the Applicant’s: HT p.23 at lines 1-3: HR Part 2: 6.02-6.09; 6.42-7.30.
a. transcript page 22, lines 38 to 40
In the transcript of the Tribunal hearing, at page 22 lines 38 to 40, the following appears:
INTERPRETER: I remember my child weighed at that time 2.9 kilograms. To be honest I only pay attention to the health of my wife and my child. As long as they are safe I’m happy.
This passage is the applicant’s words, not the Tribunal’s. Therefore, it cannot give rise to a reasonable apprehension of bias on the Tribunal’s part.
b. transcript page 22, lines 45 to 48
In the transcript of the Tribunal hearing, at page 22 lines 45 to 48, the following appears:
INTERPRETER: To be honest I can’t remember exactly, because it’s been a long time, but the weight was under 3 kilograms. At that time I was worried that the baby might be weak, because the baby was a little bit underweight.
This passage is the applicant’s words, not the Tribunal’s. Therefore, it cannot give rise to a reasonable apprehension of bias on the Tribunal’s part.
c. transcript page 23, lines 1 to 3
In the transcript of the Tribunal hearing, at page 23 lines 1 to 3, the following appears:
MEMBER:I am not convinced that you actually know very much about this, about the birth of this child, Mr Pham, which (indistinct) that it’s not your child.
The indistinct words in this passage were, “supports my view”. In this passage, as a matter of natural justice, the Tribunal was alerting the applicant to how it perceived the state of the evidence and giving the applicant an opportunity to respond. This passage does not give rise to a reasonable apprehension of bias.
Paragraph 21
In section C in paragraph 21 of his written submissions filed on 6 August 2021, the applicant said:
The Applicant responded that he was more interested in focussing on his wife and child’s health rather than memorising details to answer the Tribunal later on: p. 23 at lines 6-10. The Tribunal’s remark that if one hundred parents were asked, every single one of them could give details about the birth of their child (HT p. 23 at lines 12-14) demonstrates the Tribunal’s value judgements were underpinning its evaluation of the Applicant’s evidence.
a. transcript page 23, lines 6 to 10
In the transcript of the Tribunal hearing, at page 23 lines 6 to 10, the following appears:
INTERPRETER: Yes, to be honest as a father if you’re concerned you worry about a weakness of your child you wouldn’t have time to think about other details. Yes, if, Member, in that situation would you care about the health of the wife and the kid or would you try to memorise the weight and the height so that you can answer to the tribunal later on.
This passage is the applicant’s words, not the Tribunal’s. Therefore, it cannot give rise to a reasonable apprehension of bias on the Tribunal’s part.
b. transcript page 23, lines 12 to 14
In the transcript of the Tribunal hearing, at page 23 lines 12 to 14, the following appears:
MEMBER:Mr Pham, I suspect that if you go out there and ask a hundred parents of these details every single person will give the details about the birth of their child, particularly their first child.
In this passage, the Tribunal, as a matter of natural justice, was alerting the applicant to its perception of the evidence and giving the applicant an opportunity to respond. This passage does not give rise to a reasonable apprehension of bias.
Paragraph 22
In section C in paragraph 22 of his written submissions filed on 6 August 2021, the applicant said:
The Hearing Transcript demonstrates that Ms Do was intimidated by the Tribunal’s “quick fire” questioning of her concerning aspects of the couple’s finances and her responses rapidly deteriorated to “sorry? (HT p. 40: HR Part 2: 1.09.42 - 1.10.04; p. 42 at line 44: HR Part 2: 1.13.14 – 1.15.06, p. 43 at line 32); HR Part 2: 1.15.10 – 1.17.25; p. 44 at lines 2; 37; 47); ”I don’t really remember” (HT p. 41 at line 1; p. 43 at line 21; p. 46 at lines 1, 41): HR Part 3: 3.47 – 4.15; 9.36 – 9.49; “I don’t understand” (HT p. 40 at line 23). In response to the Tribunal’s question about whether she remembered the height and weight of her baby when he was born, Ms Do responded “No” HT p. 47 at line 45: HR Part 3: 12.02 - 12.09. The Tribunal asked if there was any reason why she could not remember to which Ms Do responded “I just don’t remember, sorry”: HT p. 48 at line 1: HR Part 3: 12.02 - 12.12. Ms Do also could not remember the full name of her obstetrician: HT p.47 at lines 14-30: HR Part 3: 11.09 - 11.22.
a. transcript page 40
In the transcript of the Tribunal hearing, at page 40, the following appears:
What work is your husband doing?---At the moment he is on trial doing
delivery, air conditioning.
For which company?---I - I don’t remember the company name, but I know it’s at a warehouse, and - yes, it’s not - yes, just like to move air conditioning unit.
How did he find a job?---He found through Gumtree.
And how long has he been there?---He only just got it last week.
Which day last week?---Last Monday.
You don’t sound very certain?---Yes, last Monday, yes.
How long is the trial for?---I think he said two weeks that he told me.
So when does he get paid?---Every - well, they said that if he worked at -
every fortnight he will get paid.
So do you know when he gets paid next?---I didn’t ask - well, he - we getting paid this week. So this week, but I don’t know what day he gets paid.
So your husband will get paid sometime this week?---Yes.
Why does he think he will get paid next week?---Sorry?
Why does your husband think that he will get paid next week?---Well, if he doesn’t get anything from this week then it might be coming next week.
Yes. You told me he gets paid this week, he thinks he gets paid next week, so which one is it?---Well, really, I don’t know the date, the exact date when he’s getting paid, but he said he gets paid fortnight.
(Indistinct) by the weeks, not the dates, so ---?---Sorry?
I am not asking you on which exact date he gets paid, I am asking you which week he gets paid. He told me next week, you think it’s this week?---Well, I heard that he’s getting paid fortnight, so I’m assuming that - if he started working last week I’m assuming it’s going to be this week.
What kind of work was he doing before?---He was a forklift driver.
A forklift driver?---Yes.
How long was he doing that for?---For quite a while. He was working with the agent, I think One Strategy.
The applicant submitted that this passage shows that the sponsor was intimidated by the Tribunal’s “quick fire” questioning. I do not accept that the passage demonstrates that, and I do not accept that the Tribunal’s questioning in this passage was at all untoward. Short questions are often commended for being easy to follow. This passage does not give rise to a reasonable apprehension of bias.
b. transcript page 42, line 44
In the transcript of the Tribunal hearing, at page 42 line 44, the following appears:
They must have told you what your debt was?---Sorry?
This passage concerned the amount that the sponsor was obliged to repay Centrelink. She said that she thought it was $12,000 but she was not sure. The Tribunal then asked the question set out above. It was a legitimate question, because it went to the extent of the sponsor’s dishonesty. This passage does not give rise to a reasonable apprehension of bias.
c. transcript page 43, line 32
In the transcript of the Tribunal hearing, at page 43 line 32, the following appears:
So why would that mean that he can’t study in Australia?---Sorry?
In this passage, the Tribunal was asking the sponsor why the applicant had stopped studying, and the sponsor said that he had family problems. The Tribunal then asked the question set out above. It was a legitimate question. This passage does not give rise to a reasonable apprehension of bias.
d. transcript page 44, lines 2 and 3
In the transcript of the Tribunal hearing, at page 44 line 2 and 3, the following appears:
So he said you met at a restaurant. What happened after that, how did your relationship with your husband develop?---Sorry?
This question was legitimate. It was perfectly proper, in the context of a partner visa application, for the Tribunal to ask how the claimed relationship developed. This passage does not give rise to a reasonable apprehension of bias.
e. transcript page 44, line 37
In the transcript of the Tribunal hearing, at page 44 line 37, the following appears:
When did you have a conversation about marriage?---Sorry?
This question was legitimate. It was perfectly proper, in the context of a partner visa application, for the Tribunal to ask when the parties discussed marriage. This passage does not give rise to a reasonable apprehension of bias.
f. transcript page 44, line 47
In the transcript of the Tribunal hearing, at page 44 line 47, the following appears:
When you had your formal marriage registration, how did you find the marriage celebrant?---Sorry, who?
This question was legitimate. It was perfectly proper, in the context of a partner visa application, for the Tribunal to ask how the parties found their marriage celebrant. This passage does not give rise to a reasonable apprehension of bias.
g. transcript page 41, line 1
In the transcript of the Tribunal hearing, at page 41 line 1, the following appears:
So when was that?---I don’t really remember.
In this passage, the Tribunal was asking about the applicant’s employment history. This question was legitimate. It was perfectly proper, in the context of a partner visa application, for the Tribunal to ask the sponsor what she knew of the applicant’s employment history. This passage does not give rise to a reasonable apprehension of bias.
h. transcript page 43, line 21
In the transcript of the Tribunal hearing, at page 43 line 21, the following appears:
So how much of the course has he done?---I really don’t remember.
This question was legitimate. It was perfectly proper, in the context of a partner visa application, for the Tribunal to ask how sponsor what she knew about the applicant’s study. This passage does not give rise to a reasonable apprehension of bias.
i. transcript page 46, line 1
In the transcript of the Tribunal hearing, at page 46 line 1, the following appears:
When did you first see a migration agent?---I really can’t remember.
This question was legitimate. It was perfectly proper, in the context of a partner visa application, for the Tribunal to ask the sponsor when she first saw a migration agent. This passage does not give rise to a reasonable apprehension of bias.
j. transcript page 46, lines 40 to 41
In the transcript of the Tribunal hearing, at page 46 lines 40 to 41, the following appears (Emma note: this is noted as line 41 only in the app’s subs at p.13):
Do you remember when you found out about your first pregnancy?---I don’t remember.
This question was legitimate. It was perfectly proper, in the context of a partner visa application in which the applicant was claimed to be the father of the sponsor’s child, for the Tribunal to ask the sponsor when she found out about her first pregnancy. This passage does not give rise to a reasonable apprehension of bias.
k. transcript page 40 line 22 and 23
The applicant’s submissions refer to page 40, line 23, but it seems the reference was meant to be to page 41, lines 22 and 23. In the transcript of the Tribunal hearing, at page 41 lines 22 and 23, the following appears:
You said the last job was his job as a handyman. So immediately before that what kind of work was your husband doing?---I don’t understand.
This question was legitimate. It was perfectly proper, in the context of a partner visa application, for the Tribunal to ask the sponsor about the applicant’s work history. This passage does not give rise to a reasonable apprehension of bias.
l. transcript page 47, line 45
In the transcript of the Tribunal hearing, at page 47 line 45, the following appears:
Do you remember the weight and height of your baby?---No.
This question was legitimate. It was perfectly proper, in the context of a partner visa application, for the Tribunal to ask the sponsor details of the birth of the child who was claimed to be the applicant’s. This passage does not give rise to a reasonable apprehension of bias.
m. transcript page 48, line 1
In the transcript of the Tribunal hearing, at page 48 line 1, the following appears:
Any reason for that?---I just don’t remember. Sorry.
In this passage, the Tribunal was asking the sponsor if there was any reason that she did not remember the height and weight of her baby at birth. This question was legitimate. As stated previously, it was a proper area of enquiry. This passage does not give rise to a reasonable apprehension of bias.
m. transcript page 47, lines 14 to 30

In the transcript of the Tribunal hearing, at page 78 lines 14 to 30, the following appears:
Who was the obstetrician?---Sorry?
Who was your obstetrician? Who was looking after you during your pregnancy?---My husband and my mum.
Sorry, in terms of a doctor. You must have had a doctor presumably who looked after you. You went and saw every few weeks or whatever. Who was that?---A midwife is what you’re saying or ---
It’s probably a doctor. An obstetrician who looks after you and the midwife who does the blood tests and whatever needs to be done. Did you have a doctor who was looking after you throughout your pregnancy?---Yes, my family doctor.
What was his or her name?---Victor.
Victor who?---That’s the doctor's name. I don’t know the full name.
These questions were legitimate. As stated previously, these questions concerned a proper area of enquiry. This passage does not give rise to a reasonable apprehension of bias.
GROUND 1(D)(VIII)
Ground 1(d)(viii) is:
The Tribunal’s decision was contrary to the evidence it cited in paragraph 48 of its reasons for decision.
Paragraph 48 of the Tribunal’s reasons for decision is as follows:
The Tribunal acknowledges that much of the couple’s oral evidence was consistent (despite the claimed poor memory and mental health issues affecting the sponsor). The Tribunal acknowledges that the parties have considerable knowledge about each other. The Tribunal acknowledges there is a substantial amount of supporting documentary evidence and the Tribunal accepts that certain aspects of the relationship point to its genuine nature. Against these considerations, the Tribunal has formed the view that both the applicant and the sponsor are not persons of credibility. The Tribunal has formed the view that the applicant is not the father of the sponsor’s children (the son and the two unborn children) and the Tribunal is not satisfied the relationship is to the exclusion of all others.
The Tribunal in paragraph 48 of its reasons for decision was clearly attempting to synthesise the various matters and weigh them up. The Tribunal acknowledged that certain aspects of the evidence supported the applicant’s case and other aspects did not. Ultimately, the Tribunal was not satisfied that the applicant and sponsor were in an ongoing, genuine spousal relationship. It was open to the Tribunal to reach that conclusion, even though some evidence went the other way. This paragraph does not give rise to a reasonable apprehension of bias.
Conclusion on apprehended bias
None of the individual items mentioned by the applicant give rise to a reasonable apprehension of bias. Nor, in my view, do any or all of those items cumulatively. The Tribunal member conducted the hearing in a reserved and circumspect manner. She was not at all belligerent or overbearing. Her questions were directed to matters that she was entitled to ask about.
GROUND 2
In his proposed amended application filed on 19 July 2021, the applicant abandoned his existing ground 2 and substituted the following proposed ground:
The Tribunal did not comply with Section 360(1) of the Act.
Particulars
(a)At paragraph 32 of its reasons for decision, the Tribunal concluded that the Applicant’s wife had decided to have children in another relationship which meant that the Applicant the Applicant could not satisfy section 5F(2)(b) of the Act and its failure to put this to the Applicant or his wife during the hearing prevented them from giving evidence relating to a material issue in relation to the decision under review.
As discussed above, the proposed amended application was filed late. The Minister opposed the applicant being given leave to amend to include this ground, on the basis that it was not arguable. The parties suggested to the court that the question of leave to amend ground 2 be dealt with in the reserved judgment, and I agreed to do that. The point was fully argued.
Paragraph 32 of the Tribunal’s reasons for decision is as follows:
For all these reasons, the Tribunal has formed the view that the applicant is not the father of the son or in relation to the second pregnancy that resulted in miscarriage. The couple’s refusal to undertake DNA testing to date (the Tribunal acknowledges the applicant’s undertaking to speak to the sponsor about DNA testing at some time in the future but considers it inadequate) and the applicant’s limited knowledge about the child and the circumstances of the pregnancies all suggest that there is no relationship between the applicant and the children. The Tribunal does not consider that the applicant is the father. The sponsor’s decision to have children in another relationship indicates that the present relationship is not to the exclusion of all others. It also raises concerns about the child’s birth certificate submitted with the application which nominates the sponsor as the father of the child as that document may be a bogus document which may give rise to the application of PIG 4020. However, the Tribunal makes no finding on the issue.
Paragraphs 13 to 15 of section C of the applicant’s submissions filed on 6 August 2021, which seem to be directed to proposed ground 2, state:
13.The Tribunal’s conclusion that the Applicant was not the father of [the sponsor’s child], the child that miscarried or the child that Ms Do was pregnant with at the time of the Tribunal’s decision is without any rational or probative basis whatsoever. It is contended that it is inherently improbable that a couple in a contrived marriage would go so far as to have three children. There is no rational or evidentiary basis for the Tribunal’s conclusion that Ms Do had decided to have children in another relationship: CB-581 at paragraph 32. The Tribunal had raised the issue of the Applicant being suspected of having a relationship with Ms Nguyen but nowhere in the evidence before it was there ever any suggestion that Ms Do was pursuing a relationship with any other person. This was never put to Ms Do during the hearing or in any invitation to comment. This failure to accord Ms Do procedural fairness meant that the Tribunal did not comply with section 360(1) of the Act.
14.The purpose of the hearing was to give the Applicant the opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. While the Tribunal is not obliged to inform the Applicant about its subjective appraisals, thought processes and identified gaps or defects in the evidence before it, its conclusion concerning Ms Do being in another relationship is material to its finding that the couple were not in a genuine relationship to the exclusion of all others and it is contended that this conclusion cannot be categorised as a private musing that the Tribunal could keep to itself.
15.Ms Do’s fidelity was not a matter that was raised by the primary decision-maker. In SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152, the High Court held that section 425(1) of the Act, an equivalent provision to 360(1) in relation to reviews concerning protection visas, the Tribunal is reviewing a particular decision and it was “not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those the delegate considered dispositive, and does not tell the applicant what the other issues are, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”: at 163[35].
There was rational and probative evidence that the applicant was not the father of the sponsor’s child. That evidence included that:
(a)the applicant had refused to undertake a DNA test;
(b)he had travelled to Vietnam twice with a woman other than the sponsor, and on the second of those occasions, the sponsor was heavily pregnant at the time;
(c)the applicant and the sponsor had defrauded Centrelink to the extent of at least $12,000; and
(d)the applicant had been dishonest with the department of immigration by not disclosing that he had ceased studying two years before his student visa expired.
Evidence does not have to be direct evidence to be rational and probative.
Whether it was inherently improbable that the parties to a contrived marriage would go so far as to have three children is a matter of assessment, and, as such, is a matter for the Tribunal. I note that, at the time of the Tribunal’s decision, the sponsor did not have three children. She had one child, a miscarriage and an ongoing pregnancy. To my mind, if parties are willing to enter into a contrived marriage for visa purposes, it is not inherently improbable that, by the time the matter came on for review, they might each have entered into relationships with other people, and have had children with them.
There was a rational and evidentiary basis for the Tribunal’s conclusion that the sponsor had decided to have children in another relationship. That was the same evidence as the evidence that the applicant was not the father of the children. Obviously, if the applicant was not the father of the children, someone else must have been. Whether the sponsor was in an ongoing relationship with that person or persons, or in a casual or past relationship, it was still a relationship.
There can be no question that the applicant was on notice that the Tribunal considered that it was possible that he was not the father of the sponsor’s child, and that, consequently, someone else must have been. The Minister did not suggest that the Tribunal put to the sponsor that the applicant was not the father of her child, or the father in her subsequent pregnancies.
The question is whether the Tribunal was obliged to put that issue to the sponsor in her oral evidence. The parties were given the opportunity to provide to the court authorities dealing with that issue following the hearing in this court. The authorities nominated by the applicant did not illuminate the point.
The Minister’s first authority was Minister for Immigration & Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 at [32]-[37]. In that case, the Full Court of the Federal Court said at [37] that the Tribunal was under no obligation to take oral evidence from anyone other than the applicant. It follows that the Tribunal was under no obligation to put anything to the sponsor.
The Minister’s second authority was SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [73]-[80]. At [79], Wigney J said:
The appellant’s submissions also tended to suggest that there was some obligation on the part of the Tribunal to further explore the contents of the witness statements by taking oral evidence from the witnesses. That is not correct. The Tribunal was entitled to approach the appellant’s request for oral evidence to be taken on the basis that their evidence would be what was stated in the s 426(2) notice and what was in their witness statements. The Tribunal was not obliged to speculate that further or different evidence could be obtained from the witnesses if the evidence in the written statements was further explored in the course of oral evidence. The beliefs or opinions of the two witnesses were not matters about which the Tribunal was obliged to conduct further inquiries: cf. Minister for Immigration and Citizenship v SZIAI[2009] HCA 39; (2009) 111 ALD 15.
Although SZUIJ concerned legal unreasonableness, the basic point articulated in the previous paragraph precludes any obligation on the Tribunal to put anything to the sponsor.
The Minister’s third authority was BOX16 v Minister for Immigration and Border Protection [2020] FCA 801 at [76] where Wigney J said:
There is, in any event, no proper basis for concluding that the Tribunal was obliged to call oral evidence from the witnesses so they could expand or elaborate on what they had included in their witness statements: see BTF15 v Minister for Immigration and Border Protection(2016) 69 AAR 376; [2016] FCA 647 at [55]. Nor was the Tribunal obliged to call oral evidence from the witnesses so that their accounts could be challenged or tested. Proceedings in the Tribunal are inquisitorial, not adversarial, and the rule in Browne v Dunn does not apply: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002(2003) 201 ALR 437; [2003] HCA 60 at [57].
In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 75 ALD 1; (2003) 201 ALR 437; (2003) 77 ALJR 1909; [2003] HCA 60 at ~~[57]~~ [55] and [56], Gleeson CJ said:
55.On occasion the submissions advanced for the prosecutrix were couched in the language of a contention that the rule in Browne v Dunn had not been complied with. Where a complaint is made about the failure of a questioner to put to a person giving oral answers a particular question, it is natural for a lawyer’s mind to turn to the rule in Browne v Dunn. In essence, and subject to numerous qualifications and exceptions, that rule requires the cross-examiner of a witness in adversarial litigation to put to that witness the nature of the case on which the cross-examiner’s client proposes to rely in contradiction of that witness.
56. However, the rule has no application to proceedings in the Tribunal. …
(footnote omitted)
In view of those authorities, and contrary to the submissions of the applicant, it was not a breach of s.360 of the Act for the Tribunal not to put to the sponsor that the applicant was not the father of her child, or any other matter.
Given that the applicant himself was well and truly on notice that the Tribunal might decide that he was not the father of the sponsor’s children, it is immaterial that the delegate did not spell out that she was unconvinced on that point. Consequently, the Tribunal did not transgress the principle enunciated in SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63.
In these circumstances, proposed ground 2 is not arguable, and the applicant should not be given leave to amend his application to include that ground.
CONCLUSION
As none of the applicant’s grounds has been made out, the application will be dismissed with costs.

I certify that the preceding two hundred and sixty-seven (267) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley .
Associate:
Dated: 1 October 2021

File number(s):	MLG 1446 of 2017
Judgment of:	JUDGE RILEY
Date of judgment:	1 October 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – subclass 801 partner visa – whether the Tribunal took into account irrelevant considerations – whether the Tribunal conducted itself in such a way as to give rise to a reasonable apprehension of bias.
Legislation:	Migration Act 1958 ss 5F, 359A, 360(1) and (2)(a) Migration Regulations 1994 reg.1.15A
Cases cited:	BOX16 v Minister for Immigration and Border Protection [2020] FCA 80 CNY17v Minister (2019) 268 CLR 76; (2019) 375 ALR 47; [2019] HCA 50 He v Minister for Immigration and Border Protection (2017) 255 FCR 41; (2017) 161 ALD 1; [2017] FCAFC 206 Goodwin v Commissioner of Police[2012] NSWCA 379 Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370; (1998) 54 ALD 654 Michael Wilson & Partners Ltd v Nicholls(2011) 244 CLR 427; (2011) 282 ALR 685; (2011) 86 ALJR 14; [2011] HCA 48 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 162 CLR 39 Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng(2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 178 ALR 421; (2001) 75 ALJR 679; (2001) 22(6) Leg Rep 2; [2001] HCA 17 Minister for Immigration & Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 NADH of 2001 v Ministerfor Immigration and Multicultural and Indigenous Affairs(2004) 214 ALR 264; [2004] FCAFC 328 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 75 ALD 1; (2003) 201 ALR 437; (2003) 77 ALJR 1909; [2003] HCA 60 Re Refugee Review Tribunal; Ex parte H(2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20; [2001] HCA 28 SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63 SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574
Division	Division 2 General Federal Law
Number of paragraphs:	267
Date of last submission/s:	17 August 2021
Date of hearing:	10 August 2021
Place:	Melbourne
Counsel for the Applicant	Roz Germov
Solicitor for the Applicant	MP Migration Law
Solicitor advocate for the First Respondent	Sophie Roberts
Solicitor for the First Respondent	Mills Oakley
Counsel for the Second Respondent	No appearance
Solicitor for the Second Respondent	Mills Oakley

MLG 1446 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	PHAM VAN DUNG Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	1 OCTOBER 2021