FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3445 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal to refuse Partner visa – whether actual or apprehended bias or failure to have regard to evidence in a manner constituting jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.5CB |
| Applicant: | XEUDONG WANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1613 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 21 June 2018 3 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Liu |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1613 of 2016
| XEUDONG WANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 8 June 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Partner (Temporary) (Class UK) visa.
The Applicant, Ms Wang, a citizen of China, lodged an application for a Partner visa on 23 April 2014 on the basis of her relationship with her sponsor, Mr Barakat. Her evidence, and that of the sponsor, was that they met in July 2013 at a birthday celebration for Mr Barakat’s friend where they were introduced by a mutual friend. They formed a relationship. Ms Wang moved in with Mr Barakat in January 2014 and they became engaged in February 2014.
In support of the application the Applicant and sponsor provided written statements as to their relationship. The Applicant also provided other documents, including a NSW relationship registration certificate dated 25 February 2014, statements for a joint bank account, photographs, an envelope addressed to her, telephone records showing calls to the sponsor, statutory declarations from two witnesses attesting to the relationship, a residential tenancy agreement for a property leased in Mr Barakat’s name and power bills in Mr Barakat’s name.
On 12 March 2015 the delegate requested further information and evidence of the relationship from the Applicant through her migration agent. No further information was provided to the Department before the delegate’s decision of 28 May 2015.
The delegate refused the visa application, not being satisfied that Ms Wang was in a de facto relationship or a married relationship with the sponsor.
Ms Wang sought review by the Tribunal. She was invited to a Tribunal hearing on 8 June 2016.
On 7 June 2016, Ms Wang’s migration agent provided a considerable number of additional documents to the Tribunal, including further telephone records showing calls between the Applicant and sponsor; photographs, including with Mr Barakat’s family members; joint bank account statements; envelopes addressed to Ms Wang; accounts and payments in Mr Barakat’s name (including Housing NSW accounts and Centrelink pension records); and joint electricity bills. The agent also provided copies of receipts for holiday expenses said to have been incurred by Ms Wang and Mr Barakat, and four statutory declarations, including from two of Mr Barakat’s adult children.
At the hearing Ms Wang, her sponsor and two witnesses, including one of the sponsor’s daughters who appeared by telephone, gave evidence. A transcript of the Tribunal hearing is in evidence as an annexure to the affidavit of Toufic Laba Sarkis affirmed on 22 July 2016.
The relevant visa criteria
Ms Wang sought a Partner (Temporary) (Class UK) visa on the basis that she was the de facto partner of her sponsor, Mr Barakat, at the time of application and decision as required under cl.820.211(2)(a) and cl.820.221 in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
De facto partner is defined in s.5CB of the Migration Act 1958 (Cth) (the Act) as follows:
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(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.
…
Pursuant to s.5CB(3) of the Act, the Regulations make provision in relation to the determination of whether one or more of the conditions in s.5CB(2)(a), (b), (c) and (d) exist. As set out in reg.1.09A(2)(d) of the Regulations, when considering an application for a Class UK visa the decision-maker must consider “all the circumstances of the relationship, including the matters set out in subregulation (3)”. Regulation 1.09A is relevantly as follows:
(1) For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(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) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being in a de facto relationship with 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.
…
The Tribunal decision
On 8 June 2016 the Tribunal affirmed the decision not to grant Ms Wang a Partner visa.
In its reasons for decision the Tribunal acknowledged that a “substantial amount of documentary evidence” had been provided which sought to address various aspects of the relationship. However, the Tribunal found that:
… such evidence does not satisfy the Tribunal that the relationship is that of de facto partners or is a genuine one. Such evidence does not overcome the Tribunal’s concerns noted elsewhere. The Tribunal is of the view that if the relationship was not a genuine one, it would still be possible to prepare, or obtain, a substantial amount of evidence of the kind that has been presented with application, such as the phone bills, letters to the same address, photographs, evidence of joint activities and statements from third parties. In the Tribunal’s view, such evidence may be available whether or not the parties are in a genuine relationship and whether or not both have commitment to such a relationship. That is, the fact that the parties have taken steps to obtain such evidence does not necessarily reflect on the nature of their relationship. It may equally reflect on their commitment to prepare evidence that the parties perceive as being necessary to show in a spouse case to achieve a favourable outcome. More is needed to satisfy the Tribunal that the relationship is genuine and that there is a genuine commitment to the relationship. The parties have not done that.
The Tribunal stated that it was “concerned” about Ms Wang’s visa history. It recorded that she had said that she had travelled to Australia on a Student visa and had enrolled in two English courses, but had not completed either course. The Tribunal observed that Ms Wang had clearly not progressed in her studies, had not done any study since applying for the Partner visa and had told it that the study was too expensive. The Tribunal was concerned that Ms Wang had “simply made the decision that it was cheaper for her to find a partner and apply for a Partner visa than maintain a Student visa”.
The Tribunal was also of the view that it was not apparent that Ms Wang’s family in China had the financial capacity to support her study in Australia, given her evidence that her parents had no work in China, but may farm some land, and that her brother worked in a factory. It recorded that Ms Wang claimed that a friend had mortgaged a property and lent her money to come to Australia, but found that she could not explain why that friend was so generous to her. Insofar as Ms Wang claimed she had wanted to do an accounting course but realised that it was too hard with her limited English ability, the Tribunal was of the view that she would have realised this well before travelling to Australia. The Tribunal was not satisfied that Ms Wang ever intended to study in Australia and was not convinced that her real purpose in coming to Australia was to study. The Tribunal was “concerned” that, having spent a considerable sum of money to travel to Australia, Ms Wang was seeking a means of staying in Australia and “found the Partner visa to be the most suitable option”.
Hence the Tribunal was “concerned” that the Applicant’s decision to enter this relationship was “governed entirely by the visa issues” and not by her commitment to the relationship. Although it acknowledged that these matters were not mutually exclusive, the Tribunal formed the view that in this case the “migration outcome is the sole motivation for the applicant to enter this relationship”.
The Tribunal considered Ms Wang’s evidence about her living arrangements. It recorded that she thought that she and Mr Barakat lived in a public housing property, but was not sure because she did not “understand Australia”. The Tribunal was of the view that the Applicant did not have to “understand Australia” to be able to speak to her partner to ask about their place of residence. It considered her explanation that she had limited English ability to be able to communicate with her sponsor and that they only talked about simple matters. The Tribunal was concerned by the Applicant’s claimed inability to communicate with her partner on “any matter of complexity”. It was “not convinced that a couple is able to form a mutual commitment to a relationship where they are limited to very basic conversations”.
The Tribunal was prepared to accept that the Applicant and sponsor lived at the same address, but was not convinced they had established a joint household because it was not satisfied that they had adequate knowledge about each other or adequate communication with each other.
The Tribunal was also of the view that there were discrepancies in the couple’s oral evidence which caused it to question the nature of their living arrangements. By way of example, the Tribunal referred to their different evidence about the time the Applicant started and finished at work on her last day at work. The Tribunal was of the view that given that the sponsor had said that he picked Ms Wang up from work he might be expected to be aware of what times she was at work. The Tribunal also referred to differences in the evidence of the Applicant and sponsor about where and when they did their shopping (which they claimed they did together). The Tribunal considered that if the couple had established a joint household, they should be more familiar with such arrangements.
The Tribunal had regard to the fact that the Applicant informed it that she and the sponsor were considering having a baby. She said she had consulted a doctor, had a blood test and was recommended medication, but could not state what the medication was or what it was supposed to do. She claimed the sponsor had not had any tests, although she had asked him to do so. However the sponsor told the Tribunal that they would not have a child unless the Applicant was granted a visa. He had no knowledge of the outcome of the Applicant’s blood test or the doctor’s recommendation. The Tribunal found that the Applicant’s lack of knowledge about the medication and the sponsor’s failure to inquire about the outcome of the Applicant’s actions suggested that the couple had “little interest in the matter”. The Tribunal was not satisfied that the Applicant had a genuine intention of having a child with the sponsor.
The Tribunal considered the evidence about the social aspects of the relationship. It noted that, despite claiming to have a close relationship with the sponsor’s children and to see them quite frequently, Ms Wang had difficulty recalling their ages and could not state what work they did or what schools the grandchildren attended. It was unclear to the Tribunal how the Applicant could have regular contact with the sponsor’s children, yet have such little knowledge about them. The Tribunal stated that it had asked the Applicant about her communication with the sponsor’s children and she claimed that she spoke to them, but not much, and that they did the talking and they predominantly spoke to her partner because her English was limited. The Tribunal was not convinced that Ms Wang had a close relationship with the sponsor’s children and was not satisfied that she was able to communicate with them effectively. Similarly, the Tribunal found that the Applicant was unfamiliar with the circumstances of the sponsor’s siblings. She was not sure how many lived in Australia and how many lived in Lebanon. She said that she had asked the sponsor, but he had not told her this information. The Tribunal was of the view that it made “little sense” that the sponsor would withhold such information. The Tribunal was not convinced that the Applicant had made any effort to establish a meaningful relationship with the sponsor’s family.
The Tribunal acknowledged that Ms Wang had provided statements from third parties and photographs with her application and additional materials to it, including oral evidence from two witnesses. It accepted that the parties had represented themselves to others as being in a relationship and that they had undertaken joint social activities. It accepted that some of the friends and relatives believed the relationship to be a genuine one.
As to the financial aspects of the relationship, the Tribunal considered Ms Wang’s evidence that they only had one bank account, which was a joint bank account. It recorded that she said the sponsor previously had a different account but had closed it when they formed a relationship, whereas the sponsor’s evidence was that he had added Ms Wang to his existing account. The Tribunal referred to Ms Wang’s evidence that the sponsor’s Centrelink payments were deposited into the joint account, but that she did not make a contribution to it because she was paid in cash. The Tribunal found it unclear why there was a need to open a different joint account when only one party made a contribution to it. It considered the Applicant’s suggestion that it was “simpler”, but found that it would have been simpler for the sponsor to add the Applicant’s name to his existing account (as he claimed he had done) rather than to close that account and open another one. The Tribunal was concerned that the Applicant and sponsor did not appear to have discussed the matter or that the Applicant had little understanding of the matter. It was of the view that the only reason the couple opened a joint account was to provide evidence to Immigration.
The Tribunal was also of the view the couple had no knowledge of their financial arrangements. It had regard to the fact that the Applicant had no awareness of the type of Centrelink payment the sponsor was receiving, despite the fact it was said to be the primary source of income for the couple. It referred to the different evidence of the Applicant and sponsor in relation to the amount of money in the joint account and recent transactions. In particular, the sponsor had said that there had been no significant transactions in the past month, whereas the Applicant said that a friend had deposited $5,000 in the account in the past month and she had then given that money back to the friend. Despite the fact the parties operated a joint account the Tribunal was not convinced that this represented a pooling of their funds or the sharing of resources, because it had formed the view that the parties had little knowledge about the operations of that account or about each other’s financial circumstances.
The Tribunal found that there was no evidence of joint ownership of assets or joint liabilities and very limited pooling of financial resources and sharing of daily expenses. It was also not satisfied that there were legal obligations between the Applicant and sponsor.
The Tribunal had regard to other inconsistencies in the parties’ oral evidence, including about whether and where the Applicant was looking for work and what type of work, the sponsor’s previous employment, the Applicant’s prior and planned studies and the occupation of the Applicant’s brother, as follows (at [22]):
There were other inconsistences in the parties’ oral evidence to the Tribunal that the Tribunal considers problematic. For example,
a. The applicant said she is looking for other work, for example in a restaurant. She said it is difficult to find a job because of her limited English and when asked if she considered working in a Chinese restaurant, she said she did not. The sponsor said she is looking for jobs in a Chinese newspaper (in which case lack of English may not be much of an issue) and she is considering doing massage work. The Tribunal has formed the view that the parties had not discussed the matter with each other at all and lack awareness on the issue.
b. The Tribunal asked the applicant and the sponsor about the sponsor’s previous employment. The applicant said he used to work as a cleaner. The sponsor said he used to run a nightclub and did not do any other kind of work. He then said he also worked in a restaurant.
c. The applicant said she undertook two English courses since coming to Australia but had not completed either because it was too hard. The sponsor said she probably did only one course, although he was not sure. He said she did not finish the course because she wanted to work and help him. The applicant said she planned to study accounting. The sponsor said she only planned to study English and had no plans to study anything else. The Tribunal is concerned about the couple’s lack of knowledge about each other.
The applicant informed the Tribunal that she did not know how to state ‘accounting’ in English and how to explain this to her partner. That explanation exacerbates the Tribunal’s concern that the parties are unable to communicate effectively with each other on matters of any significance.
d. The applicant said her brother works in a factory. The sponsor said he used to have a shop but is now retired. The applicant said the sponsor confused her brother and her cousin and maybe he misunderstood her. She did not appear confident in the sponsor’s ability to understand her.
The Tribunal had regard to the Applicant’s explanation that at the Tribunal hearing she and the sponsor were nervous and the agent’s submission that, as a Chinese person, Ms Wang would be nervous about any “court appearance”. However the Tribunal was mindful that its questions were in relation to basic aspects of daily life. It was not convinced that nervousness was the reason for the ‘identified’ inconsistencies and deficiencies in the evidence.
The Tribunal continued at [24] - [25]:
24. The applicant also repeatedly informed the Tribunal that her English is poor and that as a result, her ability to communicate with the sponsor is limited. The Tribunal has formed the view that the parties do not adequately communicate with each other and have little knowledge about each other. The Tribunal acknowledges the submission from the applicant’s representative that inability to communicate should not be fatal to this application and does not preclude the existence of a genuine relationship. The representative submits that the level of communication is sufficient for their purposes. In the Tribunal’s view, ability to communicate with one’s partner, while not determinative, is a very significant aspect of the relationship. That is, the Tribunal is not convinced that the parties were able to form a genuine and mutual commitment to this relationship if they are unable to effectively communicate with each other and their communication is limited to very basic matters, as the applicant repeatedly stated to the Tribunal. The Tribunal is not satisfied there is a mutual commitment to the relationship. The Tribunal is not satisfied the couple view their relationship as a long term one. Given their limited capacity to communicate, the Tribunal is not satisfied they draw on each other for comfort and emotional support.
25. The Tribunal acknowledges that to date, the relationship existed for a number of years. The Tribunal acknowledges that it is registered in NSW. The Tribunal acknowledges that it is known to others and also that the parties had travelled together and socialised together. Against these considerations, the Tribunal has formed the view that the applicant’s motivation in entering this relationship was to enable her to remain in Australia. The Tribunal has formed the view that the parties do not have adequate knowledge about each other. The Tribunal is not satisfied that they communicate with each other or take sufficient interest in each other and the Tribunal is not satisfied they view the relationship as a long term one. The Tribunal is not satisfied there is a mutual commitment to the relationship. Having considered all the circumstances of this relationship, the Tribunal is not satisfied the applicant is the spouse of the sponsor. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time of application and the time of this decision. Therefore the applicant does not meet cl.820.211(2))(a) cl.820.221. There is no evidence that the alternative requirements in cl.820.211 are satisfied. The Tribunal is not satisfied the applicant meets cl. 820.211 and cl. 820.211.
(errors in original)
The Tribunal affirmed the decision not to grant Ms Wang a Partner visa.
These Proceedings
The Applicant sought judicial review by application filed on 24 June 2016. She relied on an affidavit of Toufic Laba Sarkis affirmed on 22 July 2016 attaching a transcript of the Tribunal hearing. She filed a written submission to which she attached documents which included a completed application form for a bridging visa which post-dated the Tribunal decision, identity documents, a NSW relationship registration certificate, her PAYG summary for the year ending 30 June 2017, a rent assessment, joint bank statements, an electricity bill, documents in relation to an accident insurance claim and 2017 medical assessments.
There are two grounds in the application. However in submissions the Applicant raised additional issues. In particular, she took issue with what occurred at the Tribunal hearing and the tone of voice of the Tribunal member when she expressed displeasure at the late provision of documents by the migration agent. It appeared that she wished to assert actual or apprehended bias on the part of the Tribunal. I adjourned the hearing and gave the parties the opportunity to file and serve further written submissions and any affidavit evidence clarifying these concerns.
The Applicant affirmed an affidavit on 20 July 2018 referring to excerpts from the transcript of the Tribunal hearing that she said she wished to rely on and attaching a recording of part of the Tribunal hearing. The solicitor for the First Respondent produced a recording of the complete Tribunal hearing.
When the hearing resumed, the portions of the recording of the Tribunal hearing identified by the Applicant as of concern were played in court and the parties were given the opportunity to address any issues in relation to the conduct of the hearing. These issues are considered below.
I note first that insofar as Ms Wang sought to rely on additional documentary evidence about her relationship with Mr Barakat, the evidence that post-dated the Tribunal decision could not have been before the Tribunal. She also provided documents relating to an apparently unsuccessful application for a bridging visa. As I endeavoured to explain to her, merits review is not available in judicial review proceedings and if she now also seeks review of a decision to refuse a bridging visa, that is not the subject of the present proceedings. Beyond this, her reliance on documents said to evidence her relationship with the sponsor seeks impermissible merits review.
Ground 1
Ground 1 in the application is as follows:
The Tribunal made a decision contrary to s.5CB (de facto partner) and made an error in refusing the application contrary to point 17 of the decision.
The reference to “point 17” is clearly intended to be a reference to paragraph 17 of the Tribunal’s reasons, which is as follows:
The applicant provided with her application statements from third parties, as well as a number of photographs. Additional materials have been provided to the Tribunal and the Tribunal received oral evidence from two witnesses. The Tribunal accepts that the parties have represented themselves to others as being in a relationship and had undertaken joint social activities. The Tribunal accepts that some of the friends and relatives believe the relationship to be a genuine one.
In submissions, the Applicant contended that she was supported by her sponsor’s daughters. She took issue with the fact the Tribunal did not accept the evidence from the daughters. Ms Wang also complained that the Tribunal had “placed no weight” on the “uncontested evidence” of their relationship. It appears that this was intended to refer to all the documentary evidence, including what the Tribunal described as a “substantial amount of documentary evidence” that Ms Wang’s migration agent submitted to it, as well as the oral evidence from two witnesses.
Ms Wang alleged generally that the Tribunal had “misdirected itself”, “misapplied the law”, “misunderstood the facts and the evidence” and “had no adverse information against our relationship”. She also contended that the Tribunal had relied on an irrelevant consideration when it had regard to her Student visa history rather than the genuineness of her relationship with the sponsor. In this context, it was submitted that the Tribunal could not simply focus on circumstances in relation to her Student visa and on that basis reject her Partner visa application
The Applicant also submitted that the court should accept that, contrary to the Tribunal’s findings, she had a meaningful relationship with her sponsor, as attested to by his daughter and as was said to be indicated in the documentary evidence she attached to her submissions.
The First Respondent submitted that there was no error in the way the Tribunal applied s.5CB of the Act. It was pointed out that in paragraph 17 of the reasons for decision the Tribunal had acknowledged the Applicant’s documentary evidence, including the evidence from third parties and the oral evidence from two witnesses as to the nature of the relationship. It accepted that “some of the friends and relatives believe the relationship to be a genuine one”. However the First Respondent submitted that the fact that the Tribunal had accepted this and the evidence that the parties had travelled and socialised together and held themselves out to be in a relationship, did not preclude it from concluding that it was not satisfied that the Applicant and sponsor were de facto partners as defined in s.5CB(2) of the Act.
It was pointed out that the question of whether the Applicant and sponsor had a mutual and genuine commitment to one another was a question of fact for the Tribunal to determine on the evidence before it. The First Respondent submitted that the Tribunal had a cogent basis for finding that the Applicant’s own evidence about her limited communication with the sponsor about significant issues, their limited knowledge about each other and the inconsistencies or differences between the Applicant’s and the sponsor’s evidence outweighed the other evidence provided, including the oral evidence of two witnesses.
The Minister also contended that the Applicant’s submission asked the court to engage in impermissible merits review, including by accepting the oral evidence of the sponsor’s daughter.
The Tribunal’s decision was based on its lack of satisfaction that Ms Wang and Mr Barakat had a mutual commitment to a shared life to the exclusion of all others as required under s.5CB(2)(a) of the Act. In that context, as discussed further below, the Tribunal considered the matters set out in reg.1.09A(3) consistent with He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41.
The Tribunal accepted on the evidence before it that the Applicant and sponsor lived at the same address, that the relationship had existed for a number of years and was known to others, that the parties had travelled together and socialised together and that some of the friends and relatives believed the relationship to be a genuine one (as the sponsor’s daughter and the other witness had attested).
However, as the First Respondent submitted, the weight the Tribunal gave to the favourable and unfavourable evidence before it was a matter for the Tribunal, at least in circumstances where the Tribunal’s approach to fact finding and/or its conclusion has not been shown to be legally unreasonable, irrational or illogical. Even if another decision-maker may have reached a different conclusion, in this case the Tribunal’s decision-making has not been shown to be outside its statutory authority as illogical, lacking an evident and intelligible justification, unjust, arbitrary, capricious, lacking in common sense or otherwise (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611).
Nor has it been established that the Tribunal failed to give proper, genuine or realistic consideration to the evidence supporting the existence of mutual commitment and a genuine relationship in a manner demonstrating jurisdictional error. It was not necessary for the Tribunal to refer to or to make findings on every item of evidence provided by the Applicant (See He at [83] and cases cited therein). Rather, it was required to make the necessary findings on the matters prescribed in reg.1.09A(3) (He at [71]). As discussed below, it engaged with each of the matters listed in reg.1.09A(3). The Tribunal accepted that certain indicia of a genuine relationship were present but, based on various matters of concern (including the limited communication between the parties about significant issues, their inadequate knowledge about each other, its lack of satisfaction that they communicated with each other or took sufficient interest in each other, discrepancies and inconsistencies in their evidence and issues about their evidence relevant to the other aspects of a relationship referred to in reg.1.09A(3) of the Regulations), it was not satisfied that the requirement of mutual commitment to a shared relationship to the exclusion of all others was met. There was a cogent basis for the Tribunal’s conclusion. It is implicit in the Tribunal’s approach to the evidence before it that it was of the view that the matters of concern to it outweighed the other evidence provided, including by witnesses.
I am not satisfied that no logical or rational decision-maker would have taken the approach taken by the Tribunal. Contrary to the Applicant’s submission, the Tribunal did not ignore or fail to have regard to favourable evidence. However it was not beyond the bounds of reason for the Tribunal to also have regard to the matters it regarded as of concern.
Insofar as the Tribunal’s adverse findings were based on differences in the evidence of the Applicant and the sponsor it explained why it found such differences relevant to whether it was satisfied that the Applicant and sponsor were in a de facto relationship as required by s.5CB(2) of the Act and the applicable visa criteria. It had regard to the nature and the extent of these differences in evidence as relevant to the existence of a genuine de facto relationship.
Further, it was open to the Tribunal to have regard to matters in addition to the circumstances of the relationship specified in reg.1.09A(3) in considering the Applicant’s motivation in entering the relationship, and whether she and the sponsor viewed it as a long term one. As Kenny and Griffiths JJ indicated in Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5; (2016) 236 FCR 303 at [64]:
… we understand the primary judge to be making the point that the determination of whether or not a decision-maker is satisfied that there is a genuine de facto relationship is one which must be made as at the time of the decision and not by reference to some earlier point in time, such as when the parties embarked upon their relationship. In our view, as long as the relevant time is firmly kept in mind, we see no reason why the decision-maker should not take into account, together with all other relevant circumstances of the relationship, the motivation of one or both of the parties for entering into the relationship. However, as was emphasised by the Full Court in Dhillon at [11] per Northrop, Wilcox and French JJ, those motivations may change and the critical issue is whether or not the administrative decision-maker is satisfied that the parties are in a genuine de facto relationship as at the time of the decision. The Tribunal correctly observed in [110] that Ms Angkawijaya’s motivation was not “mutually exclusive” to there being a genuine de facto relationship. That statement is not inconsistent with Dhillon.
(emphasis added)
In this case the Tribunal considered not only the motivation of the Applicant for entering the relationship, but also all relevant circumstances of the relationship. It is clear that the Tribunal correctly understood that the critical issue was whether it was satisfied that the Applicant and the sponsor were in a genuine de facto relationship such as to meet the requirements of s.5CB(2) of the Act as at the time of application and decision. The Tribunal understood that the existence of a migration outcome motivation was not “mutually exclusive” to there being a commitment to the relationship. In Angkawijaya, it was pointed out that such a statement was not inconsistent with the remarks of the Full Court in Minister of Immigration, Local Government and Ethnic Affairs v Dhillon [1990] FCA 200 medium neutral citation [1990] FCA 144) at 10 - 11 (in relation to a marriage) that:
… The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.
Rather than making a decision based simply on its view of the Applicant’s motivation in entering the relationship (as the Applicant submitted), the Tribunal considered all the circumstances of the relationship. The Tribunal did not proceed on the basis that such motivation was conclusive or simply focus on circumstances in relation to Ms Wang’s Student visa. It was, however, open to the Tribunal to have regard to the evidence about the Applicant’s motivation and Student visa history. It has not been established that it had regard to an irrelevant consideration (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69]).
Insofar as this ground involves a contention that the Tribunal misunderstood or failed to take into account the evidence from the sponsor’s daughters, the Tribunal considered such evidence. Indeed, it accepted that the parties had represented themselves to others as being in a relationship and had undertaken joint social activities and also that some of the friends and relatives (of the sponsor) believed that the relationship was a genuine one. However, the Tribunal gave more weight to other matters.
It has not been established that the Tribunal “misunderstood” the facts and evidence such as to fall into jurisdictional error, whether in the manner considered in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 or otherwise. As indicated, it was reasonably open to the Tribunal to give more weight to the factors that did not support the existence of a mutual commitment to a shared relationship. To the extent that the Applicant suggested that the court should find that her relationship was genuine, she seeks merits review.
The Applicant asserted generally that the Tribunal had “misdirected itself” and “misapplied the law”. I raised with the solicitor for the First Respondent the issue of whether the Tribunal had fulfilled its statutory task by considering each of the requirements in reg.1.09A(3) of the Regulations in accordance with the approach taken by the Full Court of the Federal Court in He.
The First Respondent acknowledged that while the Full Court’s reasoning in He concerned reg.1.15A of the Regulations, the principles of construction expounded in that case also applied to reg.1.09A.
The First Respondent accepted that “the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal” (He at [76]) and that if the Tribunal’s reasons did not set out a finding concerning any of the prescribed matters, “it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision” (He at [79]).
However, as the First Respondent also pointed out, the Tribunal’s reasons do not have to be structured in a manner that formulaically addresses each of the reg.1.09A(3) matters in turn and the impressionistic and evaluative nature of the Tribunal’s task must be taken into account when drawing implications from its reasons (He at [82]). The Tribunal’s reasons are not to be construed minutely and finely with an eye attuned to error (He at [82]).
In He the Full Court stated at [76] - [79]:
76. In our opinion, the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:
(i) whether there are children and whether there is any joint responsibility for their care and support;
(ii) what the living arrangements of the persons are; and
(iii) whether and to what extent there is sharing of the responsibility for housework.
The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.
77. So far, we have discussed the requirement for the Tribunal to make findings in respect of the specific matters in reg 1.15A(3) numbered with Roman numerals. It is also necessary to consider whether findings are required in respect of the principal matters in paras (a)-(d), namely the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other. These matters are expressed broadly and it is less obvious that they pose questions that are required to be answered. Nevertheless, they should be seen as doing so, having regard to the questions that are then immediately posed in connection with each of the principal matters. In our opinion, the requirement to “consider” the principal matters means that a decision-maker must make findings upon each of them. In many cases, the requirement to make findings upon the principal matters may be satisfied by the course of making findings upon the specific matters. For example, the Tribunal may make a finding that the nature of the household is one where the parties have no children, they live together and they share responsibility for housework equally.
78. The conclusions we have reached are a function of the way in which reg 1.15A has been drafted. The drafting style employed has both advantages and disadvantages. Whenever a legislator prescribes a long list of factors, each of which must be taken into account by a decision-maker in the course of reaching an inherently evaluative conclusion, the advantage will be that it ensures that a decision-maker cannot overlook a consideration which the legislature has intended must be taken into account. However, such a legal obligation necessarily turns each such factor, unless the decision-maker expressly refers to it (and, where findings are necessary, makes such findings explicitly) into a potential trigger for the assertion of jurisdictional error.
79. The Tribunal’s findings upon the matters set out in reg 1.15A(3) are made in the course of making a decision as to whether it is satisfied that the visa applicant and the sponsor are in a “married relationship” within s 5F of the Act. It must be emphasised that there is a distinction between the making of a decision by the Tribunal and the written statement it must give under s 368 of the Act: see Yusuf at [30]; Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19], approved in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533; [2000] FCA 240 at [11], [55], [101]; Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; [2012] FCAFC 131 at [40]. The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to “consider” all of the circumstances of the relationship, including all the matters set out in reg 1.15A(3).
Further, while it is “preferable” for a decision-maker to expressly refer to each of the prescribed matters (see He at [87]; Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 140 ALD 1 at [23] and [31]; and Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 at [20]), as the Full Court discussed at [83] - [86] in He, even if the Tribunal makes no express finding as to a matter specified in a regulation such as reg.1.09A(3) it may nonetheless be possible to draw an inference from its reasons as a whole that it did make a finding on that matter as part of its mental process in making its decision.
In this case the Tribunal did not formulaically consider each of the matters numbered with Roman numerals in reg.1.09A(3). However, reading the reasons for decision as a whole and bearing in mind the nature of the Tribunal’s task, I am satisfied that it considered all the circumstances of the relationship, including all the prescribed matters set out in reg.1.09A(3) of the Regulations and made the necessary findings of fact.
The First Respondent identified the paragraphs of the Tribunal decision in which the Tribunal considered the matters prescribed in reg.1.09A(3). In relation to the financial aspects of the relationship (reg.1.09A(3)(a)), the Tribunal discussed in its reasons (in paragraphs 18 to 21 in particular) the parties’ limited evidence about the financial aspects of their relationship. It referred to the absence of any evidence of joint ownership of assets (reg.1.09A(3)(a)(i)) or of joint liabilities (reg.1.09A(3)(a)(ii)). It found that there was very limited pooling of financial resources (reg.1.09A(3)(a)(iii)) or of daily expenses (reg.1.09A(3)(a)(v)). It was not satisfied that legal obligations were owed between the parties (reg.1.09A(3)(a)(iv)).
More generally, the Tribunal was of the view that the Applicant and sponsor had no knowledge of their financial arrangements, having regard to aspects of their evidence, in particular in relation to deposits, withdrawals and the balance of their joint bank account, as well as the fact that the Applicant was unable to state the type of payment the sponsor received from Centrelink (and had not asked him). While the Tribunal accepted that the parties operated a joint bank account, it was not convinced that this account represented the pooling of their funds or sharing of resources in light of its view that they had little knowledge about the operations of that account or about each other’s financial circumstances.
At paragraphs 12 to 14 of the Tribunal reasons the Tribunal considered the nature of the household as required under reg.1.09A(3)(b). It accepted that the Applicant and the sponsor lived at the same address (although the Applicant was not sure if it was public housing), but was not convinced that they had established a joint household given their lack of adequate knowledge about each other and communication and discrepancies in their evidence about their living arrangements (see reg.1.09A(3)(b)(ii)). At paragraph 15 of the reasons the Tribunal considered whether the couple intended to have a child. The Tribunal had discussed this issue with the Applicant and sponsor and explored, in some detail, the Applicant’s evidence. In addressing whether the couple were considering having a baby the Tribunal sufficiently addressed the issue of any joint responsibility for the care and support of children as specified in reg.1.09A(3)(b)(i) of the Regulations.
While the Tribunal did not expressly make a finding about any sharing of responsibility for “housework” (reg.1.09A(3)(b)(iii)), I accept that, as the First Respondent submitted, this matter was subsumed in the Tribunal’s more general finding that it was not convinced that the couple had established a joint household. Further, the Tribunal considered discrepancies in the couple’s evidence relevant to the nature of the household and responsibility for housework in relation to where and when they did grocery shopping. The Tribunal referred to differences in their evidence about when and where they shopped, including the fact that while the sponsor stated that they “normally shop at Woolworths”, the Applicant’s evidence was that they “rarely” shopped at the big shops. The Tribunal’s approach to this inconsistency underpinned its finding that the couple had not established a joint household as “if the couple did establish a joint household, they should be more familiar with such arrangements”.
The Tribunal was clearly of the view that the evidence was insufficient to satisfy it that there was a joint household. It is clear that it gave consideration to the living arrangements and the nature of the household in circumstances where the Applicant and the sponsor lived at the same address. It made those findings in light of concerns about their lack of adequate knowledge of or communication with each other as well as specific discrepancies in their oral evidence about their living arrangements, including in relation to grocery shopping (which can be seen as an aspect of housework). I accept that, reading the Tribunal’s reasons as a whole, it should not be inferred that it failed to make a finding on the prescribed matter in reg.1.09A(3)(b)(iii) “as part of its mental process in making its decision” (see He at [85] - [86]).
Further, while there was no specific finding as to whether the Tribunal accepted or rejected the evidence of the Applicant or of the sponsor where there was a discrepancy (or as to whether it was unable to reach a conclusion on that particular evidence), it is apparent that the Tribunal was of the view that if the couple had established a joint household they should be more familiar with the nature of their living arrangements, including in relation to grocery shopping.
As the First Respondent submitted, the Tribunal also considered the social aspects of the relationship (in particular in paragraphs 16, 17 and 25 of the reasons for decision) as required under reg.1.09A(3)(c). It referred to the evidence provided by the Applicant and sponsor (including photographs, evidence of joint activities, statements from third parties and oral evidence). This discussion must also be seen in light of the Tribunal’s earlier reference (in paragraph 8) to the evidence before it. The Tribunal accepted that the parties had represented themselves to others as being in a relationship (reg.1.09A(3)(c)(i)), that some friends and relatives believed the relationship to be a genuine one (reg.1.09A(3)(c)(ii)) and that the parties had travelled and socialised together (reg.1.09A(3)(c)(iii)). The Tribunal was not obliged to limit its consideration in this respect to the matters numbered with Roman numerals. It was not satisfied on the Applicant’s evidence that she had a close relationship with the sponsor’s children, that she was able to communicate with them effectively or that she had “made any effort to establish a meaningful relationship with the sponsor’s family”.
In addition, the Tribunal sufficiently considered (in paragraphs 12, 13, 15, 24 and 25) the nature of the persons’ commitment to each other (reg.1.09A(3)(d)). It acknowledged that the “relationship” had existed for a number of years and accepted the claim that the Applicant and sponsor lived at the same address (regs.1.09A(3)(d)(i) and (ii)). It can be inferred that the Tribunal accepted the evidence about the length of time they had lived at the same address. The Tribunal found, however, that the parties did not adequately communicate with each other, that they had little knowledge of each other and that they did not take sufficient interest in each other. Given what the Tribunal saw as their limited capacity to communicate, it was not satisfied that they drew on each other for comfort and emotional support (reg.1.09A(3)(d)(iii)). In light of its finding about their inadequate communication, knowledge and interest in each other, the Tribunal was not satisfied that they viewed their relationship as a long term one (reg.1.09A(3)(d)(iv)).
Ground 1 is not made out.
Ground 2
Ground 2 is as follows:
The Tribunal failed to accept that the relationship is genuine based on some inconsistencies which are the result of language problems and not lack of commitment.
In submissions and at the hearing the Applicant sought to provide explanations for inconsistencies identified by the Tribunal. She also attributed such inconsistencies to her nervousness (and that of her sponsor) at the Tribunal hearing and contended that the Tribunal had erred in not accepting that nervousness and the “language problem”, were the reason for what she suggested were some “minor” inconsistencies and deficiencies in the evidence.
The First Respondent observed that ground 2 did not point to any jurisdictional error and appeared to be a general complaint that the Tribunal had regard to inconsistencies without considering that these were the result of “language problems”. It was pointed out that the Applicant had not criticised the interpretation or translation at the Tribunal hearing and submitted that there was no evidence that “language problems” had disadvantaged the Applicant in any way before the Tribunal. It was also contended that it was reasonable for the Tribunal to accept what had been said at the hearing as a true reflection of the Applicant’s evidence.
Further, the First Respondent contended that it was open to the Tribunal on the evidence before it to find that “the parties do not adequately communicate with each other and have little knowledge about each other”. It was pointed out that this finding was based on various inconsistencies or differences in the parties’ evidence, as well as their limited knowledge about important aspects of their relationship, including the Applicant’s work and study plans and significant financial transactions in relation to their joint bank account.
Insofar as the Applicant now seeks to provide explanations for inconsistencies identified by the Tribunal she seeks merits review.
The transcript of the Tribunal hearing is in evidence. It is apparent that the Tribunal raised with the Applicant its concerns about various matters on which she and the sponsor had given different oral evidence (transcript pages 52 to 57). It gave her the opportunity to comment or explain. It was not obliged to put its provisional reasoning to the Applicant for comment (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9] per French CJ and Kiefel J).
Insofar as the reference to “language problems” in this ground is intended to refer to the Tribunal hearing, there is no evidence of any inadequate interpretation during that hearing (cf SZUYU v Minister for Immigration and Border Protection [2018] FCA 786).
If it was intended to refer to language problems between Ms Wang and the sponsor, the Tribunal understood that she raised her limited English ability in explanation for difficulties in communication with the sponsor and with his children, differences in their evidence and her lack of knowledge of various matters and had suggested that her communication with the sponsor was limited to very basic matters. The Tribunal considered these explanations. It acknowledged that (as Ms Wang’s agent had submitted) an inability to communicate does not preclude the existence of a genuine relationship. However it was reasonably open to the Tribunal to find in all the circumstances of this particular case (including the nature of the inconsistencies and the matters on which there was limited knowledge) that it was not convinced that the Applicant and sponsor were able to form a genuine and mutual commitment to the relationship if they were unable to effectively communicate with each other and their communication was limited to very basic matters (as the Applicant had repeatedly stated to it). It was also open to the Tribunal not to be satisfied that the parties drew on each other for comfort and emotional support, given their limited capacity to communicate.
The fact that that particular inconsistencies identified by the Tribunal might be described as minor does not in itself indicate jurisdictional error. Whether an inconsistency (or difference in evidence) is material is normally a question of fact for the Tribunal. It was not unreasonable for the Tribunal to have regard to differences in evidence and a lack of knowledge about basic aspects of a relationship, day to day activities and about a partner and his or her family in considering whether it was satisfied that an applicant was in a de facto relationship with a sponsor. Further, the Tribunal’s conclusion in this case was not based solely on “some inconsistencies” in the evidence. As indicated, it considered all of the circumstances of the relationship.
Insofar as the Applicant attributed inconsistencies in evidence to nervousness at the Tribunal hearing, the Tribunal considered this explanation (at paragraph 23), as follows:
The applicant repeatedly informed the Tribunal that she and the sponsor were nervous. The representative also submits that as a Chinese, the applicant would be nervous about any court appearance. The Tribunal is mindful that the Tribunal’s questions were in relation to basic aspects of daily life and the Tribunal is not convinced that the nervousness is the reason for the inconsistencies and deficiencies in evidence identified above.
It was reasonably open to the Tribunal to be of this view, given the nature of the issues discussed. There is no suggestion or evidence that the Applicant was unfit to participate meaningfully in the Tribunal hearing.
Ground 2, as pleaded, is not made out.
Bias Issues
It was claimed that at the start of the Tribunal hearing the Tribunal member had an argument with the Applicant’s migration agent and was subsequently “quite angry” with the Applicant.
In addition to the transcript of the Tribunal hearing, the Applicant relied on her affidavit affirmed on 20 July 2018. It consisted of submissions about aspects of the hearing (and is treated as such) as well as a USB recording of part of the Tribunal hearing. The recording of the parts of the Tribunal hearing of concern to the Applicant was played in court.
The First Respondent submitted that the Applicant had not identified (or properly alleged) actual or apprehended bias on the part of the Tribunal. It was pointed out that allegations of bias must be “distinctly made and clearly proved” (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J). It was suggested that the tests for bias are well established (see ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] – [36] per Allsop CJ, Kenny and Griffiths JJ) and that the Tribunal is entitled to vigorously test the Applicant’s evidence and must give the Applicant an opportunity to answer doubts the Tribunal might have.
In addition, the First Respondent submitted that it was not apparent from the transcript or recording of the Tribunal hearing that the Applicant’s will was overborne or that she was otherwise denied a fair hearing because of egregious discourtesy or some other form of ill-conceived communication between the Tribunal member and the Applicant or her migration agent (see Re Refugee Review Tribunal; Ex parte H & Anor [2001] HCA 28; (2001) 179 ALR 425).
The First Respondent submitted that none of the extracts of the transcript that the Applicant relied on established bias or other jurisdictional error. It was argued that there was nothing in the Tribunal member’s tone of voice that suggested that she was not open to the evidence or arguments of the Applicant. On the contrary, the Minister submitted that listening to the recording of the Tribunal hearing gave context to what might, on paper, perhaps suggest something different having regard to the Tribunal’s use of short sentences. It was pointed out that the Tribunal member did not raise her voice and that it was clear that she was testing arguments put by the Applicant.
The First Respondent also submitted that while a considerable amount of material had not been submitted to the Tribunal until the day of the hearing, such material was in fact considered in its reasons for decision and that the Tribunal’s reasons did not support any suggestion of apprehended bias.
The First Respondent referred to ALA15 at [35] - [36], in which the Full Court of the Federal Court summarised the tests in relation to apprehended bias. ALA15 was referred to in a further summary of relevant legal principles in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 at [61] - [66] as follows:
61. The relevant principles relating to apprehended bias in an administrative decision-making context are relatively well settled. Difficulty sometimes arises in their application to particular facts and circumstances. Many of the principles were conveniently summarised by the Full Court in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] and [36] per Allsop CJ, Kenny and Griffiths JJ (emphasis in original):
35. … the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39 ; (1976) 136 CLR 248; Livesey v New South Wales Bar Assn [1983] HCA 17 ; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 (Ebner); Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55 ; (2006) 229 CLR 577 and British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 ; (2011) 242 CLR 283 (British American Tobacco)).
36. Other relevant principles are:
(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);
(b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and
(c) as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]–[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).
62. These principles are not applied in a vacuum. They reflect an underlying and fundamental value to preserve and promote confidence in the integrity and impartiality of administrative decision-making and the judicial review process which attaches to it. This important consideration is well reflected in Allsop CJ’s observations in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2], with which I respectfully agree:
The question whether or not an administrative tribunal has conducted itself in a way that displays apprehended bias is assessed by reference to the hypothetical construct of the informed fair-minded observer. There was no debate as to the proper formulation of the relevant test. Nor could there be, governed, as it is, by High Court authority. The words “fair-minded”, however, should be recognized for the central part they play in the assessment. Apprehended bias, if found, is an aspect of a lack of procedural fairness. The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process (the process being part of the exercise of power, integral to the legitimacy of the outcome): VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209]; and NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561 at 583 [84].
63. To similar effect, in Islam v Minister for Immigration and Citizenship [2009] FCA 1526 (Islam) at [51], in the context of considering an allegation of apprehended bias against an AAT member, Finn J said that the essential concerns “are to maintain integrity of the Tribunal’s processes and procedures to provide public reassurance of that integrity”.
64. Another important feature of the test in Australia for reasonable apprehension of bias should also be noted. As Hayne J observed in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) HCA 17; 205 CLR 507 at [184], the development and application of the test in Australia avoids the need for the reviewing court:
... to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question.
65. In applying these general principles and considerations, it is also critical to acknowledge the importance of the relevant legal, statutory and factual framework within which a claim of apprehended bias is made, as was emphasised in Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 (Isbester) at [20] per Kiefel, Bell, Keane and Nettle JJ. In Isbester, the plurality said at [23] (footnotes omitted):
How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.
66. The application of these general principles and considerations should take into account the nature of the particular conduct or event which is said to give rise to apprehended bias …
(emphasis omitted)
In this case, the Applicant’s main concern related to the fact that after the Tribunal member’s introductory remarks, she addressed the Applicant’s agent as follows (transcript pages 3 to 4):
Member: …You provided hundreds of pages of submissions to me yesterday. You provided additional submissions to me this morning before the hearing. Why am I receiving submissions from you less than one day before the hearing when this case has been with the tribunal for one year?
Advisor: Because I didn’t think it should be like one week before. And yesterday I also take the other so I already prepared before I come here but
Member: So because it was inconvenient for you to send the submissions earlier or send to the tribunal earlier you think it’s okay to send hundreds and hundreds of documents to the tribunal less than 24 hours before the hearing.
Advisor: Oh okay.
Member: I mean I don’t have much of an appreciation for the lateness of the submissions even though I received hundreds of pages of submissions and some more submissions that were submitted this morning you have had a year to provide the submissions to the tribunal, how is this helpful to your client?
Advisor: Because normally we do just like paper one, paper one but I did paper one and also did the scanning by the email as well.
Member: I don’t mind which way you send it by email or by paper that’s not the point. The point is I should not be getting the submissions not 24 hours before the hearing not 10 minutes before the hearing but at least a week befor the hearing.
Advisor: Okay.
Member: You’ve been here long enough you should know better than this.
Advisor: Yep.
The Tribunal then explained to the Applicant:
Member: I just mentioned to the Immigration agent that it’s not very helpful to the tribunal when submissions are received in the last minute which is unfortunately what she’s done in your case…
The Tribunal started to question the Applicant, asking:
… What is your full name and date of birth for the record please?
The Applicant stated that she “knew” that the Tribunal member and her agent were arguing and suggested that the Tribunal member looked very angry. She claimed she “immediately got nervous” and was shocked that her agent may not have submitted her documents, which she thought meant that the Tribunal did not have any evidence to refer to before it made the decision. The agent did submit a considerable number of documents the day before the hearing of 8 June 2016. The Tribunal’s concern was the time at which this had occurred (in circumstances where the hearing invitation had asked that any additional evidence be provided no later than 1 June 2016).
However, the Tribunal received the documents submitted by the agent and had regard to those documents in its reasons. Even if the Tribunal member’s tone of voice when speaking to the agent might be seen as suggesting a degree of displeasure with the agent, there is nothing in the tone or words used in questioning the Applicant that is indicative of prejudgment of the Applicant’s case when considered from the perspective of the fair-minded and appropriately informed bystander. I am not satisfied that the hypothetical fair-minded lay observer with appropriate knowledge as to the nature of a Tribunal hearing might reasonably apprehend that the Tribunal “might not bring a fair, impartial and independent mind” to the determination of the Applicant’s case on its merits just because the Tribunal member took issue with the fact that the agent was late in submitting documents or on the basis of any other aspect of the hearing (see ALA15 at [35]).
The Applicant also expressed concern about the fact that the Tribunal asked her questions about her sponsor’s previous life. She made submissions about why she disagreed with the Tribunal’s conclusions in relation to communication and knowledge issues. She repeated her claim that she was extremely nervous “from the beginning” and could not give her answers in a relaxed manner.
There is nothing in the Tribunal’s words (or tone) in questioning the Applicant about the sponsor’s past to give rise to an apprehension of bias. It was not inappropriate or indicative of prejudgment for the Tribunal to raise with the Applicant its concern about communication issues or her lack of knowledge about the sponsor, in asking (at transcript page 11):
Member: You don’t take very much interest about your husband’s affairs or your husband’s or the way he survives. You don’t really know what kind of pension he’s getting, you don’t know what accommodation you’re living in, you don’t know where or when he stopped working or why he stopped working. What information do you know about him?
The Applicant also expressed concern about the part of the hearing in which the Tribunal raised with her its concern about her motivation in entering a relationship with the sponsor. After indicating that aspects of her evidence (about why she came to Australia to study, how her study was funded and her failure to progress in her studies) were not very convincing, the transcript records that the Tribunal stated (at transcript page 24):
Member: You must have realised before you came to Australia without English you wouldn’t be able to do an accounting course or anything else. I mean it doesn’t seem to me the purpose of coming to Australia was really to study given how little effort you’ve put into it.
Applicant: Well because I wanted to study but after I arrived I thought it was hard for me.
Member: Is it okay before you spend thousands and thousands of dollars is it hard for you to study?
Applicant: No because I wanted to study.
Member: Ms Wang, I’m not finding what you are telling me very convincing especially when some purpose for you coming to Australia whether it’s to find a partner or to stay here by other means stay here to work here I don’t know but what you’re saying does not make any sense.
Applicant: Then I can’t really do anything because I am telling the truth.
Member: And I’m also wondering what your motivations are in entering this marriage because at times to me as if you spend all of somebody else’s money to come to Australia. You really wanted to stay in Australia to be able to repay the debt and make some money and the easiest way to do that was to marry someone and apply for a partner visa.
Neither the words nor the tone used by the Tribunal in this exchange support a contention of either actual or apprehended bias. While on the face of the transcript and read in isolation this last sentence might be seen as expressing a conclusion, it must be seen in the context of the Tribunal’s indication that it was wondering about the motivations of the Applicant in entering the relationship. The remark was clearly understood by the Applicant as a proposition about how her actions might be seen. She replied:
Applicant: I have never thought about in that way.
Finally, the Applicant appeared to express concern about the Tribunal’s questions about her husband’s previous marriage and his children’s names, ages and occupation. However it emerged that her concern was about the fact that the Tribunal did not accept her explanations for her lack of knowledge. She attempted to explain apparent inconsistencies and perceived inadequacies in her evidence in such respects.
Such questioning is not indicative of actual or apprehended bias. Rather, the Tribunal was raising with the Applicant issues about her claimed close relationship with the sponsor’s children relevant to the social aspect of the relationship and of significance in light of evidence from the sponsor’s children which asserted a belief in the genuineness of the relationship.
Neither actual nor apprehended bias has been established. The extracts from the recording of the hearing and the whole of the transcript do not reveal the types of statements by a Tribunal member that were impugned in Re Refugee Review Tribunal; Ex parte H. It is well-established that the Tribunal is entitled to vigorously test an applicant’s evidence. It is appropriate to give an applicant an opportunity to address doubts or concerns on the part of the Tribunal and necessary for the Tribunal to raise dispositive issues.
Neither actual nor apprehended bias has been established.
Interpretation issue
The Applicant claimed generally that part of what occurred at the Tribunal hearing was not properly translated into English. I gave her the opportunity to file further evidence in this regard. She did not do so.
As the First Respondent submitted, this is not a case in which defects in interpretation are so obvious on the face of the transcript that an inference can be drawn that the translation was so defective that the Applicant was denied a proper hearing (see SZUYU at [104] referring to Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at [38]). Any allegation that the Applicant was denied a real and meaningful hearing on this basis cannot be sustained.
Other claims
The Applicant submitted that the Tribunal member “has no basis to attack my credibility” and referred to page 4 of the transcript of the Tribunal hearing (which contains the Tribunal member’s exchange with the agent). The transcript does not contain any discussion of credibility generally, although it is the case that the Tribunal raised numerous issues of concern with the Applicant. Such matters provided a basis on which it was reasonably open to the Tribunal not to be satisfied as to the s.5CB requirement of mutual commitment. It did not make an express adverse credibility finding. Rather it made findings of fact relevant to whether it was satisfied that Ms Wang was in a de facto relationship. It was not obliged to accept her claim in that respect in light of the evidence before it.
The Applicant also contended that the “Tribunal had no adverse information against our relationship and the Tribunal failed to tell me that I could seek additional time to comment or respond to any inconsistency” and “failed to give us the opportunity to provide written comments on any adverse information”. This argument is misconceived. The Tribunal had regard to concerns about aspects of the evidence of the Applicant and the sponsor. Further, it has not been established that there was any “information” within s.359A(1) of the Act that had to be put to the Applicant for comment. Inconsistencies in evidence do not constitute “information” within the meaning of s.359A (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18] in relation to s.424A of the Act) such as to require compliance with ss.359A or 359AA of the Act. I note that at the hearing the Tribunal did raise with the Applicant issues of concern, including differences between her evidence and that of the sponsor, thus affording her an opportunity to comment on these matters to the extent that they were dispositive.
As no jurisdictional error has been established on any basis contended for by the Applicant, the application must be dismissed.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 28 November 2019
- AGLC
- Wang v Minister for Immigration [2019] FCCA 3445
- Case
- [2019] FCCA 3445
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the Tribunal erred in its consideration of the applicant's motivation for entering into the relationship and her Student visa history when assessing whether she and her sponsor were in a genuine de facto relationship for the purposes of the *Migration Act 1958* (Cth). Specifically, the Court had to determine if the Tribunal's consideration of these factors, in conjunction with other circumstances, amounted to jurisdictional error.
The Court dismissed the application, finding that it was open to the Tribunal to consider the applicant's motivation in entering the relationship and whether she and the sponsor viewed it as a long-term commitment, in addition to the specific circumstances of the relationship outlined in regulation 1.09A(3). The Court relied on *Minister for Immigration and Border Protection v Angkawijaya* and *Minister of Immigration, Local Government and Ethnic Affairs v Dhillon*, which established that while the motivation for entering a relationship is relevant, the critical issue is the existence of a genuine de facto relationship at the time of the decision. The Tribunal correctly understood that a migration outcome motivation was not mutually exclusive to a commitment to the relationship and considered all relevant circumstances. The Court held that the Tribunal had not had regard to an irrelevant consideration, as per *Minister for Immigration and Multicultural Affairs v Yusuf*.
Orders
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Background
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Evidence
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Decision
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