Vuong v Minister for Immigration and Anor - [2009] FMCA 433

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VUONG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 433

MIGRATION – Visa – Partner (Provisional) (Class UF) visa – Migration Review Tribunal – mutual commitment to a shared life as husband and wife – living separately and apart – credibility – bias – apprehension of bias – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.348 – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.360 – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.361 – no obligation on the Tribunal to call witnesses – no jurisdictional error.

Migration Act 1958 (Cth), ss.65, 348, 359, 360, 361, 476
Migration Regulations 1994 (Cth) Reg.1.15A

W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449; [2002] FCAFC 211
W412/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 432
STBB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1587
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480; [2006] FCA 584
Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; 75 ALJR 982 [2001] HCA 28
SZFQP v Minister for Immigration and Citizenship [2007] FCA 671

Applicant:

KIET CAM VUONG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3115 of 2008

Judgment of:

Scarlett FM

Hearing date:

8 April 2009

Date of Last Submission:

8 April 2009

Delivered at:

Sydney

Delivered on:

14 May 2009

REPRESENTATION

Counsel for the Applicant:

Mr Poynder

Solicitors for the Applicant:

Janice Vu & Associates

Counsel for the Respondents:

Mr Smith

Solicitors for the Respondents:

DLA Phillips Fox (Ms Baggett)

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,750.00.
I allow nine (9) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3115 of 2008

KIET CAM VUONG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

The Applicant seeks judicial review of a decision of the Migration Review Tribunal made on 4^th November 2008. He was the review applicant before the Tribunal and the visa applicant is his wife, Phung Yen Trinh. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
In his amended application, filed in Court on the day of the hearing, the Applicant seeks the following:
i)A writ of certiorari quashing the decision;
ii)A writ of mandamus compelling the Second Respondent, the Migration Review Tribunal, to re-determine the application according to law; and
iii)A declaration that the decision of the Second Respondent was made in excess of jurisdiction and is null and void.
The Minister has filed a Response opposing the application.

Background

The Applicant is an Australian citizen. He met the visa applicant,

Ms Trinh in March 2003. She was working as a receptionist at a hotel in Ho Chi Minh City, Vietnam, when the Applicant was staying there on a visit to Vietnam.
The Applicant returned to Vietnam in June 2007, during which time he and Ms Trinh spent time together and took a five day holiday in Thailand.
The Applicant again returned to Vietnam in January 2006. He proposed to Ms Trinh and they became engaged. They were married on 3^rd March 2006. The Applicant returned to Australia on 26^th March 2006. Ms Trinh remained in Vietnam.
The Applicant returned to Vietnam on 11^th July 2006. He stayed until 17^th July 2006. During the Applicant’s visit to Vietnam, he and

Ms Trinh spent a week in China.
Ms Trinh applied for a Partner (Provisional) (Class UF) visa on

14^th August 2006
. The Applicant was the sponsor of her application.
The Applicant again visited Vietnam from 27^th October to 10^th November 2006. During that time he was present at Ms Trinh’s interview in Ho Chi Minh City on 31^st October 2006. The Applicant again returned to Vietnam on 20^th December 2006.
A delegate of the Minister refused Ms Trinh’s application for visa on 22^nd January 2007. The delegate was not satisfied that the Applicant and the visa applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that the relationship between them was continuing or that they lived together or did not live separately and apart on a permanent basis.[1]
[1] Court Book 114

Application to the Migration Review Tribunal

On 13^th March 2007 the Applicant applied to the Migration Review Tribunal for review of the delegate’s decision. On 13^th June 2007 the Tribunal wrote to the Applicant, inviting him to attend a hearing scheduled to take place on 10^th July.
On 4^th July 2007 the Tribunal received a letter from the Applicant’s solicitor (mistakenly dated “4 July 2005”) enclosing a statutory declaration from the Applicant and a number of documents, including photographs, submitted as “Evidence of Genuine and Ongoing Marriage”.[2]
[2] Court Book 156-157
The Applicant attended the Tribunal hearing on 10^th July 2007, accompanied by his representative, Vinh Quang Duong, and a Damien Cheung, described on the MRT Hearing Record as the Applicant’s landlord.[3] The Applicant gave evidence with the assistance of an interpreter in the Cantonese language. The hearing was adjourned.
[3] Court Book 365
The Tribunal wrote to the Applicant’s migration agent the following day, 11^th July 2007, inviting the Applicant to provide information. The invitation was made under the provisions of s.359 of the Migration Act and invited the Applicant to provide the information by the 8^th August 2007.[4]
[4] Court Book 368-369
The Applicant’s migration agent replied to this request for information on 7^th August 2007, enclosing a statutory declaration from the Applicant and a number of other documents.
On 5^th December 2007 the Applicant’s migration agent forwarded further documents to the Tribunal. They included another statutory declaration from the Applicant, a medical certificate relating to

Ms Trinh, invoices and photographs.
The Applicant’s migration agent wrote again to the Tribunal on

2^nd January 2008
, advising that the Applicant planned to travel to Vietnam from 3^rd to 24^th February to visit his wife and again enclosed various documents.
After the Applicant returned from Vietnam, his migration agent wrote to the Tribunal on 26^th February 2008, enclosing invoices, a travel itinerary and photographs of the Applicant and the visa applicant.
The Tribunal wrote on 10^th March 2008, inviting the Applicant to attend the resumed hearing on 19^th March.
The Applicant attended the hearing, accompanied by his representative, Mr Duong, and a friend named Judith Anne Bacsy.[5] The Applicant again gave evidence, this time with the assistance of a Vietnamese interpreter. Ms Bacsy gave evidence that she had travelled to Vietnam and witnessed the Applicant and the visa applicant residing together.
[5] Court Book 604
On 12^th May 2008 the Applicant’s migration agent forwarded a number of documents to the Tribunal, including yet another statutory declaration from the Applicant. There were other documents forwarded, including a document entitled “Superannuation payment summary – Financial Hardship”.[6]
[6] Court Book 606
The Applicant said in his statutory declaration (inter alia):
I have been invited to attend two hearings, in both hearings my wife has made her self available to give oral evidence but was saddened that the Tribunal did not call her to give oral evidence.[7]
[7] Court Book 609
The Applicant travelled to Vietnam from 30^th July to 17^th August 2008 to visit his wife. His migration agent submitted further documents to the Tribunal on 4^th September 2008.

The Migration Review Tribunal Decision

The Tribunal handed down its decision on 4^th November 2008, affirming the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
In the Tribunal’s “Findings and Reasons” it referred to the requirement in Regulation 1.15A of the Migration Regulations 1994 that a spouse relationship requires a decision-maker to be satisfied that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that the visa applicant live together, or do not live separately and apart on a permanent basis.
The Tribunal found:
Although the visa applicant in her application for a visa and the review applicant provided to the Tribunal documentary evidence to support their claim of an ongoing relationship (including letters, photographs, telephone accounts and statutory declarations from family and friends), I am not satisfied that the review applicant lived separately and apart from his first wife, as claimed.[8]
[8] Court Book 651
After considering the evidence of the Applicant’s divorce from his first wife, the Tribunal this finding that impacted on the Applicant’s credibility:
I have considered the review applicant’s claim that he and his wife divorced and that they live separately and apart. Whilst I am satisfied the parties have divorced, I am not satisfied the review applicant lived separately and apart from his first wife from January 2003 or October 2004. In light of these inconsistencies I am not satisfied that the review applicant is a witness of truth. As I am not satisfied the review applicant is a witness of truth, I am not satisfied the review applicant and his first wife live separately and apart.
There are other implausibilities that lead me to conclude the review applicant is not a witness of truth.[9]
[9] Court Book 652
The Tribunal then set out various other reasons that led it to make that finding, mainly to do with financial aspects. The Tribunal went on to find:
As I am not satisfied the review applicant is a witness of truth I reject his claims that he was either given money by friends or he had cash monies in order to pay for his travels, sending monies to the visa applicant or paying for engagement and wedding expenses.[10]
[10] Court Book 654
The Tribunal was not satisfied that the Applicant had completely disclosed his finances and the financial aspects of the relationship to the Tribunal. The Tribunal then considered the various paragraphs of Regulation 1.15A(3).
The Tribunal first considered reg.1.15A(3)(a), which deals with financial aspects of the relationship, and was not satisfied that the Applicant had disclosed the true financial arrangements between the parties. The Tribunal found that the visa applicant did not meet reg.1.15A(3)(A).
The Tribunal considered the requirements of reg.1.15A(3)(b), the nature of the household, and reg.1.15A(3)(c), the social aspects of the relationship. It reviewed the evidence but made no specific finding.
The Tribunal then considered the requirements of reg.1.15A(3)(d), the nature of the parties’ commitment to each other. Again, the Tribunal reviewed the evidence.
The Tribunal then found:
The fact that 2 persons are legally married is not determinative of a genuine spousal relationship. In view of the lack of satisfactory information about the financial position of this couple, my lack of satisfaction as to the review applicant’s place of residence, my finding that he and his first wife do not live separately and apart and my finding that the review applicant is not a witness of truth I am not satisfied that this marriage is genuine or that the couple have a mutual commitment to a shared life as husband and wife to the exclusion of all others.[11]
[11] Court Book 655
The Tribunal found that at the time of application the visa applicant did not intend to validly marry an Australian citizen, permanent resident or eligible New Zealand citizen. The Tribunal affirmed the decision not to grant the visa applicant Partner (Provisional) (Class UF) visa.

Application for Judicial Review

The Applicant commenced proceedings by filing an application and an affidavit in support on 27^th November 2008. He relies on an amended application that his counsel filed in Court on the day of the hearing.
The Applicant relies on two grounds of review:
i)The Second Respondent failed to comply with its obligation under s.360(1) of the Act to 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, and thereby failed to perform its duty under s.348 of the Act to review the decision.
ii)The decision of the Second Respondent was affected by apprehension of bias.
The particulars of the Applicant’s first ground are that the Tribunal failed to consider the evidence of the Applicant’s spouse or Mr Damien Cheung or to take evidence from them at the two hearings conducted by the Tribunal.
Counsel for the Applicant, Mr Poynder, submitted that the first issue in this application is whether, by failing to take evidence from the visa applicant and her nominated witness, the Second Respondent, the Tribunal, failed to comply with its obligations under ss.348, 360(1) and 361(3) of the Act.
The Applicant had filed an affidavit by Vinh Duong, his solicitor, annexing a number of documents, including transcripts of the Tribunal hearings on 10^th July 2007 and 19^th March 2008.
Counsel for the Applicant submitted that Mr Cheung was present at the hearing on 10^th July and Ms Trinh was available by telephone. The Tribunal questioned the Applicant in detail about his financial situation, which was clearly causing the Tribunal some concern.
The Tribunal said:
Q258I see. Well, sir, I’m actually going to adjourn this hearing at this point and I’m going to seek further details from you of your financial situation.[12]
[12] Transcript 10.7.2007
The Tribunal went on to say that it was “having a lot of difficulty”[13] with the Applicant’s evidence about his financial situation.
[13] Ibid Q259
The Applicant’s adviser then raised the question of whether Mr Cheung would be required as a witness on the next occasion. After a discussion about the relevance of the witness and the fact that the interpreter had only been booked for two hours, the Tribunal Member said:
It’s your application and, you know, I can’t really tell you whether I will need the witness or not.[14]
[14] Transcript 10.7.2007 Q267
The Tribunal Member went on to say:
Q268.It’s up to you which way you want to deal with his evidence at this stage.[15]
[15] Ibid
The Tribunal did not hear evidence from either the visa applicant or

Mr Cheung. Mr Poynder submitted that if a Tribunal fails to hear from an available witness it deprives itself of the opportunity to consider relevant evidence which may corroborate the Applicant’s claims (W360/01A v Minister for Immigration and Multicultural Affairs[16] at [29]-[31]; W412/01A v Minister for Immigration & Multicultural Affairs[17] at [19]; STBB v Minister for Immigration and Multicultural and Indigenous Affairs[18] at [60]). He submitted that the error is “probably” that the Tribunal failed to carry out its required task of dealing with the case before it.
[16] (2002) 124 FCR 449; [2002] FCAFC 211
[17] [2002] FCA 432
[18] [2004] FCA 1587
Where evidence is precluded because of arbitrarily imposed time limits the Tribunal may have failed to comply with its task under s.360(1) to invite the Applicant to appear before the Tribunal to give evidence and present arguments (e.g. Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[19] at [33]-[41]; Antipova v Minister for Immigration and Multicultural and Indigenous Affairs[20] at [82]-[91]).
[19] (2003) 128 FCR 553
[20] (2006) FCR 480; [2006] FCA 584
Further, it is submitted, if the Tribunal has no regard to an applicant’s request that it take oral evidence from a person named in the notice to that effect there will have been a failure to comply with s.361(3). The “have regard” means more than a superficial acknowledgment of the notice (Minister for Immigration and Multicultural and Indigenous Affairs v Katisat[21] at [56]-[57])
[21] [2005] FCA 1908
Mr Poynder submitted that the Tribunal gave no regard to the Applicant’s request that the visa applicant, Ms Trinh, should be called to give evidence.
Mr Poynder also submitted that the Tribunal erred in failing to take evidence from Mr Damien Cheung. The Tribunal ought to have realised the significance of Mr Cheung’s evidence, not just because of the documentation it had on file but because of what the Applicant’s representative told the Tribunal at the hearing on 10^th July 2007 about what Mr Cheung would say.
Counsel for the Applicant submitted that the discussion at the end of the first hearing did not amount to a genuine consideration by the Tribunal of whether it would accede to the Applicant’s request that

Mr Cheung should give evidence. Further, the failure of the Applicant to have Mr Cheung available at the second hearing did not absolve the Tribunal from its duty to have considered his evidence.

Apprehension of Bias

The Applicant’s second ground of review is a claim that the decision of the Tribunal was affected by an apprehension of bias. Mr Poynder referred the Court to the decision of the High Court in Re Refugee Review Tribunal; Ex parte H[22]at [27]-[32].
[22] (2001) 179 ALR 425; 75 ALJR 982; [2001] HCA 28
Counsel for the Applicant submitted that there were six identifiable matters upon which the claim of apprehension of bias is made.[23] They were:
a)The Tribunal did not call Ms Trinh to give evidence.
b)The Tribunal did not call Mr Cheung at the first hearing.
c)The Tribunal’s perfunctory treatment of Ms Bacsy’s evidence showed a complete lack of interest in what she had to say.
d)The Tribunal’s general treatment of the Applicant’s claims and evidence suggested that it was prepared, consciously or unconsciously, to mould the evidence to fit its preconceived views.
e)The Tribunal’s treatment of a document produced by the Applicant evidencing a superannuation payment of $7,721.77 on 6^th April 1998[24], citing the fact that the address on the document had been masked in support of its finding that the Applicant was still living with his first wife even though the document was dated at least 6 years before the Applicant claimed to have left his wife, strongly suggests a negative mindset in the Tribunal and a preparedness to construe evidence against the Applicant when there was no basis for any such inference.
f)Mr Poynder claimed that the Tribunal “bullied” the Applicant in the second hearing over the identity of his employer[25], which further suggests a negative mindset against the Applicant.
[23] See SZFQP v Minister for Immigration and Citizenship [2007] FCA 671, where Cowdroy J held at [24] that a claim of bias raises a serious allegation in respect of which there must be specific matters identified by the party making the claim
[24] Court Book 611
[25] Transcript 19.3.2008 page 18, Q144 – Q148

The First Respondent’s Submissions

Counsel for the Minister, the First Respondent to the application, submitted that the Applicant’s first ground, alleging a failure to take evidence from two witnesses, should fail. He noted that the claim was made on two bases:
i)a breach of s.360 of the Migration Act; and
ii)a breach of s.361(3) of the Act.
Mr Smith submitted that there is no obligation on the Tribunal to call evidence from any witness other than the Applicant (Minister for Immigration and Multicultural and Indigenous Affairs v Katisat[26] at [67]). This was not a case of arbitrarily imposed time limits, as was the case in Antipova v Minister for Immigration and Multicultural and Indigenous Affairs[27] at [77] and [79]. The Tribunal adjourned the hearing to another date in order to complete the evidence.
[26] supra
[27] supra

Second, it was submitted that s.361(3) never arose, because the Applicant never gave written notice that he wanted the Tribunal to take evidence from anyone.
Further, it was submitted that the Tribunal left it up to the Applicant’s representative to decide how to deal with Mr Cheung’s evidence. Also the Tribunal had considered the possibility of the visa applicant,

Ms Trinh, giving evidence, because it had flagged that issue in its invitation to appear before the Tribunal dated 13 June 2007.[28]
[28] Court Book 142
As to the Applicant’s second ground, apprehension of bias, Mr Smith submitted that the Tribunal’s failure to take evidence from either

Ms Trinh of Mr Cheung should be seen in the light of the following:
a)There was no obligation to do so;
b)There was no written request to do so;
c)Mr Cheung was sworn at the first hearing, showing the Tribunal’s willingness to take his evidence; and
d)Mr Cheung did not attend the second hearing.
The Tribunal listened to Ms Bacsy’s evidence. This was not perfunctory. The Tribunal accepted the truth of her evidence.
The Tribunal had doubts about certain aspects of the Applicant’s evidence. It was obliged to raise those doubts with him so that he could give evidence and present arguments about the issues. The Tribunal did not constantly interrupt the Applicant, unlike the Tribunal in Re Refugee Tribunal; Ex parte H.[29] Nor did the Applicant’s adviser, who was lawyer and a migration agent, complain about the Tribunal’s conduct.
[29] supra
Also, Mr Smith submitted that the Tribunal may have wrongly relied on the superannuation payment document, but that does not indicate bias.
Finally, the Tribunal did not bully the Applicant. It merely warned him about the consequences of his evidence that he had been paid in cash. After that, the Applicant did not give evidence.
The Minister submitted that the Applicant’s grounds of review had not been made out and the application should be dismissed.

Conclusions

The Applicant relies on two grounds of review.
His first ground claims that the Tribunal failed to comply with its obligations under ss.348, 360(1) and 361(3) of the Migration Act by failing to take evidence from the visa applicant and from Mr Damien Cheung.
Section 348 of the Migration Act requires the Migration Review Tribunal to review decisions:
(1) Subject to subsection
(2), if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision.
Subsection 360(1) of the Act requires the Tribunal to invite the Applicant to appear:
(1) The Tribunal must invite the applicant to appear before the Tribunal and present arguments relating to the issues arising in relation to the decision under review.
Section 361 of the Act provides that the Applicant may request the Tribunal to call witnesses and obtain written material. Subsection 361(3) provides:
(3)If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice but is not required to comply with it.
In this case, there were two witnesses that the Applicant wished to have called. One was the visa applicant, Ms Trinh, who as available to give evidence by telephone on each occasion. The other was the Applicant’s landlord, Mr Cheung, who was present at the first hearing but not at the second. There was no explanation given for his absence on the second occasion.
It is certainly strange that the visa applicant was not called to give evidence. She was available by telephone on each occasion. However, the Applicant’s adviser, Mr Duong, attended the hearings on 10^th July 2007 and 19^th March 2008, and did not raise with the Tribunal on either occasion that the visa applicant was waiting to give evidence.

Mr Duong had certainly raised the question of Mr Cheung’s evidence at the first hearing and had raised the question of Ms Bacsy’s evidence on the second.
Mr Cheung was present on the first occasion. The Tribunal directed that he be sworn and an affirmation was taken.[30]
[30] Court Book 365; Transcript 10.7.2007 page 1, Q5 and Q6
The first hearing took longer than was expected and was adjourned. The Applicant’s adviser raised the question of Mr Cheung’s evidence. The Tribunal Member made it clear that they had run out of time for that day and said to the adviser:
It’s your application and, you know, I really can’t tell you whether I will need the witness or not…
It’s up to you which way you want to deal with the evidence at this stage.[31]
[31] Transcript 10.7.2007 Q267 – Q268
There is nothing to suggest that the Tribunal would not have been prepared to consider taking Mr Cheung’s evidence on the next occasion, had he attended.
The Applicant, who is the review applicant, was invited to appear at a hearing and he gave extensive evidence. In my view s.360 applies to the review applicant and not to the visa applicant in this case.
The Applicant had not given any written notice to the Tribunal to take evidence from any witnesses, certainly not within the 7 days after notification set out in subsections (2) or (2A) of s.361. Thus, there was no failure to have regard to an applicant’s notice under s.361(3).
There is no obligation on the Tribunal to call a witness nominated by the Applicant (Katisat at [67]), even if the Applicant has give a written notice under subsections (2) or (2A) of s.361 (see s.361(3)).
No failure to comply with ss.348, 360(1) or 361(3) of the Migration Act has been shown and the Applicant’s first ground fails.
The Applicant’s second ground claims an apprehension of bias on the part of the Tribunal. The test for apprehended bias in curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. In administrative proceedings the test is whether a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias would reasonably apprehend such bias (Re Refugee Review Tribunal; Ex parte H[32] at [27]-[28]).
[32] supra
The Applicant’s counsel has set out six specific instances of conduct claimed to give rise to an apprehension of bias.
The failure to call the Applicant’s spouse, Ms Trinh, to give evidence, is certainly unusual, as she was available by telephone on each occasion. However, the Applicant had not given any written notice under s.361(2) that he wanted her called and the Tribunal was under no obligation to call her. The first time the Applicant complained that

Ms Trinh had not been called was in his statutory declaration provided to the Tribunal on 12^th May 2008, after both hearings had taken place. The Applicant’s adviser did not raise with the Tribunal at either hearing the question of calling Ms Trinh.
If there is no obligation on the Tribunal to call a witness even when a written notice is given, there can hardly be said to be any obligation to call a witness of its own motion.
The Tribunal did not refuse to hear Damien Cheung’s evidence.

It merely ran out of time at the first hearing. The Tribunal left it to the Applicant’s adviser to decide how he wanted to deal with Mr Cheung’s evidence, and Mr Cheung did not attend on the second occasion.
The Tribunal took the evidence of Judith Anne Bacsy when asked by the adviser at the hearing on 19^th March 2008. The transcript shows that the Tribunal responded to the witness’s evidence by saying:
Q167 O.K.
Q168 All righty. Is that all you’d like to tell me?
Q169O.K. Thank you very much. O.K. I don’t have any further questions.[33]
[33] Transcript 19.3.2008 page 23
There is nothing perfunctory in the way the Tribunal dealt with this witness’s evidence and no evidence of bias.
The Tribunal is criticised for the emphasis placed on the source of the Applicant’s funds, which was said to be “irrelevant” to the issue of the genuineness of the spousal relationship. The Tribunal was obliged to consider the financial aspects of the parties’ relationship. Regulation 1.15A (3)(a) provides:
In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
…
(ae)   a Partner (Provisional) (Class UF) visa;
…
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(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 party to the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day-to-day household expenses.
It was appropriate for the Tribunal to examine the Applicant’s financial circumstances thoroughly. As the Tribunal had doubts about the Applicant’s financial circumstances, it was also appropriate to put those doubts to the Applicant to give him an opportunity to explain the situation. This is not evidence of bias.
The Tribunal drew an inference from the superannuation payment document dated 6^th April 1998 which was quite clearly wrong. This is an error of fact and not, to my mind, evidence of bias. Errors of fact do not constitute jurisdictional errors.
The Tribunal did not “bully” the Applicant in asking him about the circumstances of his being paid in cash. It is clear that the Tribunal was warning him about giving evidence of having been paid in this way because “the decisions of this Tribunal are printed and made available on the Internet”.[34] The Tribunal gave the Applicant a five minute adjournment to seek advice from his adviser. After the hearing resumed the applicant told the Tribunal:
I not wish to disclose that information.[35]
[34] Transcript 19.3.2008 page 18 Q147
[35] Transcript 19.3.2008 page 19 answer to Q150
Clearly, the irregular circumstances of the Applicant’s pay from an employer whose name he did not wish to disclose could, if made public, have attracted attention from the Australian Taxation Office.
This does not amount to bias on the part of the Tribunal
The Applicant has not made out any apprehended bias in the conduct of the Tribunal hearing. His second ground fails.
No jurisdictional error is disclosed. Accordingly, the Tribunal decision is a privative clause decision and certiorari, mandamus and declaration are not available (s.474(1)(c)).
It follows that the application will be dismissed.
I will consider the question of costs, which usually follow the event.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 7 May 2009