Young v Minister for Immigration - [2008] FMCA 516

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YOUNG v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 516

MIGRATION – Review of Migration Review Tribunal decision – refusal of a Partner (Provisional) (Class UF) visa – no reviewable error – application dismissed.

Migration Act 1958 (Cth), s.91X
Migration Regulations 1994 (Cth), reg.1.15A

Badu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1060
Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1437
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407
Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 242
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Ozbunbar v Minister for Immigration & Multicultural Affairs (1998) 55 ALD 163
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885

Applicant:

IVOR TREVOR YOUNG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG 1072 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

7 December 2007

Delivered at:

Sydney

Delivered on:

24 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Solicitors for the Applicant:

Simon Diab & Associates

Counsel for the Respondents:

Ms V McWilliam

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application filed on 2 April 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1072 of 2007

IVOR TREVOR YOUNG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application by Ivor Trevor Young (“the review applicant”) for review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 26 February 2007. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the review applicant’s wife, Ms Kanta Matiammal (“the visa applicant”) a Partner (Provisional) (Class UF) visa. Ivor Young is an Australian citizen who was born in Sri Lanka. He was previously married and that relationship broke down in May 1990.
The review applicant and his counsel both have the same surname of Young. To avoid any confusion in this judgment I will refer to Ivor Young as the review applicant and his counsel as Mr JR Young.
The visa applicant currently lives in Fiji and had previously resided in Australia between May 2000 and April 2004. She was previously married in 1982 and the relationship ended in November 2000 with the divorce taking place in October 2003. She originally arrived in Australia in May 2000 as the holder of a Business (Short stay) visa. She and her former spouse subsequently applied for a protection visa. That application was refused by the Department and affirmed by the Refugee Review Tribunal in April 2001.
The review applicant met the visa applicant in September/October 2000 and they commenced living together in Australia from early 2001. They were married on 18 October 2003. The visa applicant returned to Fiji in April 2004 and the review applicant has since visited her in Fiji in November 2004 and July 2006.
On 1 September 2005, an application for the Partner (Provisional) (Class UF) visa was lodged at the Australian High Commission in Suva, Fiji. That application was refused by a delegate of the Minister on 21 March 2006 and an application for review by the Tribunal was lodged on 31 May 2006. On 26 February 2007, the Tribunal affirmed the delegate’s decision which is the decision the subject of judicial review in this Court (reference number 060474321).
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. An affidavit of Ivor Trevor Young sworn on 5 December 2007 is marked Exhibit “B”. Both exhibits were read into evidence.
The application in these proceedings was filed on 2 April 2007. At the first Court date, the matter was listed for a show cause hearing under r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) on 14 June 2007. On that date, it was determined that the matter should proceed to a final hearing on 7 December 2007. Leave was granted to file an amended application giving complete particulars of each ground of review relied upon by 29 August 2007. Nothing was filed until the commencement of the hearing when counsel appearing for the applicant sought leave to file the amended application. As no objection was raised, leave was granted.

Tribunal’s findings and reasons

The issue for the Tribunal to determine was whether the review applicant and the visa applicant were mutually committed to a shared life as husband and wife in accordance with reg.1.15A(1A)(b)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal accepted that the review applicant was genuine in his commitment, however did not accept that the visa applicant was so committed (CB 331.4).
In reaching this conclusion, the Tribunal relied on the following findings:
a)The visa applicant could not name the kind or amount of pension the review applicant was receiving, which suggested that she did not take an interest in her husband’s financial affairs (CB 330.3-5).
b)The visa applicant did not initially talk about her feelings for the review applicant or her commitment to the relationship, referring only to his feelings for her (CB 331.6).
c)The visa applicant was untruthful in some of her oral evidence. She stated that her relationship with her former partner had ended in 2000 but had appeared with him at the Refugee Review Tribunal in April 2001 and had relied on his protection visa application (CB 332.1-2).
The Tribunal formed the view that the above matters outweighed other evidence in support of a genuine commitment to the relationship. The Tribunal determined that reg.1.15A(1A)(b)(i) and (ii) were not satisfied and consequently affirmed the delegate’s decision.

Legislative framework

Regulation 1.15A(1)(a) states:
Spouse
(1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a)in a married relationship, as described in subregulation (1A); or
(b) in a de facto relationship, as described in subregulation (2).
(1A)Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b the Minister is satisfied that:
(i)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii)the relationship between them is genuine and continuing; and
(iii)they:
(A live together; or
(B do not live separately and apart on a permanent basis.
The factors required to be taken into consideration for Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visas are set out in reg.1.15A(3) which states:
(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ad) a Partner (Migrant) (Class BC) visa; or
(ae)a Partner (Provisional) (Class UF) visa; or
(af) a Partner (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) 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;
(b)the nature of the household, including:
(i)any joint responsibility for care and support of children, if any; and
(ii the parties' living arrangements; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(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;
(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.

Consideration

Ground one

1. The respondents made a jurisdictional error by failing to offer procedural fairness by not informing the applicant that the evidence held in the file were misplaced or lost.
Particulars
(a) The respondents concealed or misplaced the evidence submitted by the applicant and never brought this fact into the attention of the applicant despite relying on the same evidence in arriving at adverse findings (paragraph 3 on page 5 of the second respondent’s decision). The respondents breached its duties in investigating the evidence which were no longer found on its file despite acknowledging that such evidence were submitted by the applicant’s representative.
1A The Second Respondent made jurisdictional error by failing to review the decision as requested in that it failed to consider evidence of cohabitation and evidence relating to the financial aspects of the relationship submitted but no longer appearing on the first respondent’s file.

When the visa application was lodged with the Australian High Commission in Suva on 1 September 2005, there were a number of supporting documents including:
a)personal documents;
b)evidence of review applicant’s Australian citizenship;
c)statements from third parties attesting to their knowledge of the relationship; and
d)medical reports of the review applicant.
This is recorded in the Tribunal decision under “Claims and Evidence”:
The visa applicant’s representative referred to other documents such as the evidence of the parties’ cohabitation, and evidence relating to the financial aspects of the relationship, but it no longer appears on the departmental file. (CB 328.3)
Mr JR Young referred to a letter from Ms Vicaro of Like Consultants which sets out the nature of the documents supplied with the first partner visa application. This included evidence of the financial aspects of the relationship such as bank, gas and telephone accounts and other material. The delegate interviewing the in Fiji in November 2007 noted evidence of cards, letters, telephone accounts, photo albums including wedding and social photographs. The application lodged with the High Commission was unsuccessful and the review applicant (the Australian citizen) was entitled to lodge a review application with the Tribunal. Although there is no accompanying letter, a number of the documents were returned. However, the visa and review applicants were not alerted to the fact that copies were not retained in the Department file. The first time that this became apparent was in the Tribunal decision:
The visa applicant’s representative referred to other documents, such as evidence of the parties’ cohabitation and evidence relating to the financial aspects of the relationship, but it no longer appears on the department’s file. (CB 328.4)
Mr JR Young contends that aside from the effect of reg.1.15A and the requirements that certain considerations must be taken into account, the Tribunal generally requires copies of documents to be retained. A failure to do so and to consider that material in a review will be a breach of procedural fairness: Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. Mr JR Young relies on the decision of Callinan J at [163]:
[163] I have formed the opinion that what happened in September 1998 was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise. If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made190 as it was here, review the Minister's decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction. This is more than a failure to give a party a hearing. It is to proceed on a false basis, that such a document simply does not exist or has not been communicated to the Tribunal. The Tribunal would in these circumstances no more be exercising its jurisdiction than a court would be in deciding a case in favour of a defendant without looking at the plaintiff's initiating document and pleading, or even knowing that they had been filed in the registry of the court.
Mr J R Young submits that where documents have been submitted to the primary decision-maker and there is an application for review of that decision, the primary obligation of the review tribunal is to consider all the material which was before the primary decision-maker. He submits that it is open to the applicant during the review process to lodge further materials, but the applicant is entitled to expect that the Tribunal will have and consider the material considered by the delegate: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.
Mr JR Young submits that what an applicant also expects is that the delegate’s reasons will be the starting point that the applicant needs to address in the review process. If that is not the case, the applicant should be advised.
With respect to ground 1A, Mr JR Young argues that the process adopted by the Tribunal broke down. The Tribunal has a general obligation as described by Callinan J in Bhardwaj and also must have regard to all the circumstances of the relationship as mandated by reg.1.15A(3) including the financial and social aspects, the nature of the household. Mr JR Young also drew the Court’s attention to reg.1.15A(5) which states that if the couple have been living at the same address for six months or longer that fact is to be taken to be strong evidence that a relationship is genuine and continuing. However, if the relationship is of a shorter duration then it may indicate that it is not genuine and may be continuing only for the reason to establish a relationship.
Ms McWilliam, for the first respondent, submits that Madgwick J indicated in Badu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1060 at [36] that an applicant should be informed if any evidence on the Department file had been misplaced or lost. She argues however that as with Badu, the fact that the information was no longer on the file had no bearing on the outcome of the Tribunal decision, as the Tribunal accepted that the parties had co-habited for more than three years and this was strong evidence that the relationship was genuine and continuing. The Tribunal states in its “Findings and Reasons”:
In oral evidence, the parties provided consistent evidence about their living arrangements during the period of cohabitation and about the nature of their households. Based on that evidence, the Tribunal accepts that the parties have resided together from 2001 until the visa applicant’s departure from Australia. The Tribunal acknowledges that such period of cohabitation is taken to be strong evidence that the relationship is genuine and continuing (r1.15A(5)). (CB330.10)
Ms McWilliam contends that the reason for the Tribunal’s decision was its lack of satisfaction that the review applicant had a genuine commitment to the relationship based on her oral evidence. These factors are set out at [9] above. Ms McWilliam argues that as the Tribunal decision was on a legally acceptable basis and any failure to notify the applicants of the missing documents did not invalidate the decision.
Ms McWilliam contends that the missing material went to the parties’ cohabitation, the financial aspects of their relationship and included letters from friends and relatives. However, this missing material had no bearing on the outcome of the decision as the Tribunal accepted the proposition and there was no issue with that. In support of this argument, Ms McWilliam referred to the Tribunal’s comments regarding the applicants’ bank statements:
The visa applicant’s representative refers to other documents such as evidence of the parties cohabitation and evidence relating to the financial aspects of the relationship, but it no longer appears on the Department’s file. (CB 328)
The Tribunal member was aware of the documents and said:
Having regard to the bank statements from the Commonwealth Bank, the Tribunal accepts that the review applicant had provided some financial support to the visa applicant. There is no evidence of joint ownership of real estate or other major assets or of joint liabilities. There is no evidence before the Tribunal of the parties’ major financial commitments. While the Tribunal places little weight on the apparent lack of these matters in considering the financial aspects of the relationship, given the parties reside in different countries, the Tribunal is concerned about the visa applicant’s lack of knowledge about the review applicant’s income. This causes the Tribunal to question the visa applicant’s interest in the review applicant’s financial affairs.
In relation to the letters from family and friends, the Tribunal stated under “The social aspects of the relationship”:
On the basis of the evidence before the Tribunal, the Tribunal accepts that the parties represent themselves to other as being in a marital relationship and that their friends and relatives are aware of the relationship and view it as a genuine one. (CB 331.2)
Ms McWilliam contends that all of the information that Mr JR Young claims the Tribunal should have had regard to did not adversely impact on the Tribunal decision as it accepted the couple’s cohabitation and that the genuineness of the relationship.
Ms McWilliam also promoted an alternative approach that even though there was a failure to provide procedural fairness the Tribunal had an entirely separate basis for the decision. She relies on Badu v Minister for Immigration & Multicultural & Indigenous Affairs at [43]:
43 Thus, in my opinion, the denial of natural justice as to one issue before the Tribunal did not invalidate the Tribunal’s decision because there was another legally exceptionable basis (entirely not dependent on the other issue) for the Tribunal to have rejected her application to it.
Ms McWilliam contends that the principle in Badu is directly applicable to this case because the basis of the Tribunal decision was its failure to accept the visa applicant’s credibility that she had a genuine commitment to the relationship.
The Tribunal states under “The nature of the person’s commitment to each other”:
The Tribunal is not satisfied about the visa applicant’s commitment to the relationship.
The visa applicant’s initial responses in oral evidence caused the Tribunal to question the visa applicant’s commitment to the relationship.
The Tribunal is concerned about the delay in making the application as pointing to the applicant’s lack of commitment. (CB 331.4-331.8)

The Tribunal then made a finding about the truthfulness of the visa applicant:
The Tribunal found the visa applicant to be untruthful in some aspects of her oral evidence. (CB 331)
The Tribunal finds that the visa applicant had tried to deliberately mislead the Tribunal about her contact with her former spouse. (CB 332.1)
The Tribunal is unable to dismiss the visa applicant’s conduct with respect to immigration and the RRT as insignificant when considering the present application. The combination of the visa applicant’s past conduct and her unwillingness to mislead the authorities with respect to the previous relationship caused the Tribunal to question the truthfulness of the visa applicant’s claims with respect to other aspects of her relationship with the review applicant. The Tribunal cannot be satisfied that the visa applicant is committed to the relationship with the visa applicant.
However, for the reasons stated above the Tribunal is not satisfied that the visa applicant has any commitment to the review applicant or to her relationship with the review applicant. The Tribunal makes this finding having considered all aspects of the relationship and all claims made by the visa applicant that the review applicant and despite the considerable amount of evidence presented by the parties. (CB 332.7)
Ms McWilliam submits that this is approach is entirely permissible and within the legislation. In support she relies on Ozbunbar v Minister for Immigration & Multicultural Affairs (1998) 55 ALD 163 where Kiefel J stated:
…It was held in Dhillon’s case that the test for such a relationship is whether, at the time 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 or others…
The central enquiry will usually be as to the parties’ commitment and, as Branson J pointed out in Singh v Minister for Immigration & Ethnic Affairs (29 April 1996 unreported) whilst there may be some objective facts relevant to, or consistent with, mutual commitment, often times it will require consideration of the parties’ stated intention. The true position will only be known to them. In these circumstances credibility will often assume importance. Reference to decided cases bear this out.
Ms McWilliam submits that the approach taken by the Tribunal was precisely what Ozbunbar referred to, in that there might be a large amount of evidence but the credibility of the applicant is key.
Justice Conti stated in Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1437 at [23]:
…The Tribunal appropriately examined the motives of Mr Liu and concluded that he also did not possess a genuine commitment to the marriage, either in advance or from the outset thereof. In determining the proprietary of one’s commitment to marriage, the very nature of the task required an evaluation, based on human experience, understanding and perception of the available spectrum of potentially relevant circumstances of each particular case. [emphasis added]
Ms McWilliam argues that the Tribunal undertook the task of evaluation with considerable care and attention to detail. She submits that there is nothing in the Migration Act 1958 (Cth) or reg.1.15A which prohibits the Tribunal from taking into account all the evidence and then making a credibility finding which outweighs the evidence. It is not a matter of elevating or requiring the other evidence to have more weight, the Tribunal simply did not believe the visa applicant and there is no jurisdictional error in that.
I am satisfied that although the Tribunal accepted the applicants’ cohabitation and outward appearance to others that they were in a genuine relationship, it was unable to accept the visa applicant’s credibility and commitment to the relationship. An adverse credibility finding and consequent rejection of her claims is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407. I accept Ms McWilliam’s submissions that ground 1 and 1A cannot be sustained.

Ground two

2. The Respondent took into consideration irrelevant facts which were not existed and ignored the facts claimed by the applicant.
Particulars
(a) The Applicant claimed and submitted evidence to the effect that his wife and himself have maintained financial commitment. The applicant and his wife gave evidence during the hearing that the applicant has been providing his wife with financial support through various means. However, the Respondent misinterpreted the applicant and his wife’s versions stating that there was no discrepancy in that the applicant told that he deposits money overseas and his wife told during the interview that her husband sends money through friends and relatives too. The Respondents made error by finding inconsistent versions whereas the applicant and his wife clearly gave consistent evidence, as the applicant clearly told during the interview that he use to send money through friends and relatives and now he deposits into Commonwealth Bank.

In the Tribunal’s “Findings and Reasons” are two references to the applicants’ bank account:
The review applicant provided the Tribunal with evidence of monetary withdrawals by the visa applicant of funds from her account at the Commonwealth Bank. Both the visa applicant and the review applicant stated that these funds are deposited by the review applicant. When asked about the financial support, the review applicant stated that he supported his wife by depositing funds in the Commonwealth Bank for use of the visa applicant. He stated that at present he did not provide any other support for the visa applicant. The visa applicant stated that her husband also supported her by sending money through friends and relatives. The reason for this discrepancy has not been explained by the parties to the satisfaction of the Tribunal. (CB 329.8)
At the end of that paragraph is a further reference to the bank account:
Having regard to the bank statements from the Commonwealth Bank, the Tribunal accepts that the review applicant had provided some financial support to the visa applicant. There is no evidence of joint ownership of real estate or other major assets of joint liabilities. There is no evidence before the Tribunal of the parties’ major financial commitments. While the Tribunal places little weight on the apparent lack of these matters in considering the financial aspects of the relationship, given that the parties reside in different countries, the Tribunal is concerned about the visa applicant’s lack of knowledge of the review applicant’s income. This causes the Tribunal to question the visa applicant’s interest in the review applicant’s financial affairs. (CB 330.5)
The visa applicant stated that the review applicant supported her by sending money through friends and relatives as well as depositing money into the bank account. The Tribunal understood that the applicant only referred to depositing money in the bank account and was not satisfied that she adequately explained the discrepancy. This issue was not further elaborated in the decision and there is no transcript of the Tribunal hearing before this Court.
Ms McWilliam submits that if the Tribunal had misunderstood the visa applicant’s evidence in this regard, the most that can be established is that it made a factual error which is not a ground for judicial review. She submits that this matter was unrelated to the reasons for the Tribunal’s adverse credibility finding and had no bearing on the decision. Ms McWilliam referred to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63]:
…the same may be true if the claim is raised by the evidence, ambient not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact although amounting to misconstruction of an applicant’s claim may be of no consequence to the outcome. It may be subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected.
In the absence of further evidence such as a transcript and with minimal references in the Tribunal decision, it is not possible to determine whether a witness was misrepresented in the decision record or some other form of a misunderstanding occurred. In the circumstances, I am not satisfied that this was anything more than a factual misunderstanding. Nor is this issue identified as the basis for the credibility finding, the components of which are set out at [9] above. In the circumstances, this ground should be dismissed.

Ground three

The respondents made jurisdictional error by being actual bias when dispensing justice.
Particulars
(a) The respondent admitted on several occasions that they received allegations about the genuineness of the marriage through third party. The respondent advised the applicant at the hearing that they would not give any weight to the allegations. However, it is clear that the respondents took into consideration the adverse information in that no reasonable person could have made such unreasonable decision by quantifying the level of commitments for everlasting relationship.
(b) The respondents stated on several paragraphs that the wife of the applicant appeared to be genuine and gave consistent information at the hearing. The respondents also accepted their cohabitation as husband and wisfe for more than 3 years. However, the application was refused stating credibility issues and quantum of commitment.

The test of whether the Tribunal was so committed to a conclusion already formed as to be incapable of alteration despite what evidence or argument may be presented, is found in Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 242 at [71]-[72] per Gleeson CJ and Gummow J:
71…decision makers, including judicial decision makers, sometimes approach their task with a tenancy of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
72 The test which was applied by French J and the Full Court was orthodox. It accords with the decision of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already informed as to be incapable of alteration whatever evidence or argument may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
Ms McWilliam submits in this matter the Tribunal accepted from both documentary and oral evidence that the parties had lived together for more than three years and that there was evidence of a genuine commitment. However, that evidence was outweighed by the view the Tribunal took of the applicant’s credibility. Ms McWilliam submits that such an evaluation is entirely a matter for the Tribunal. The mere fact of an adverse finding does not give rise to an inference about the state of mind of the Tribunal member, nor of pre-judgment of the issues, see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per Von Doussa J:
[38] In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.
A party alleging actual bias on a decision-maker’s part carries a heavy onus and it must be clearly proved: Jia at 531. The existence of actual bias may be inferred from circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [36].
Mr JR Young did not make any submissions or identify any evidence to support the allegation of actual bias. Nor is there a transcript before the Court in support of this claim. In the circumstances, I am not satisfied that a claim of actual bias is established solely by the contents of the decision record and this ground cannot be sustained.
I agree with the submissions made by Ms McWilliam that this is a case where the Tribunal member accepted evidence of a genuine commitment between the applicants but found that the evidence was outweighed by the visa applicant’s credibility. I agree with the submission that such a balancing act is entirely a matter for the Tribunal. I am satisfied that the allegation of actual bias cannot be sustained and this ground should be dismissed.

Ground four

The second respondent made jurisdictional error in that it made an error of law by treating the matters in Regulation 1.15A(3) and 1.15(5) as being required to outweigh concerns of the second respondent in relation to whether the visa applicant was committed to the relationship with the applicant.

Mr JR Young submits that reg.1.15A(3)(ad)-(ae) apply to this application. Consequently, the decision-maker was mandated to have regard to the matters listed in reg.1.15A(3)(a),(b),(c),(d) and set out at [12] above.
Mr JR Young submits that the basis of the Tribunal decision was:
·That the Tribunal was not satisfied that the visa applicant was committed to the relationship with the review applicant:
The Tribunal acknowledges that the legislation does not require an equal degree of commitment and that it is the mutuality of commitment and not its degree that is the relevant consideration for the Tribunal. (NDEG v MIMA [2005] FMCA 74). However, for the reasons stated above, the Tribunal is not satisfied that the visa applicant has any commitment to the review applicant or to her relationship with the review applicant. The Tribunal makes this finding, having considered all aspects of the relationship and all claims made by the visa applicant and the review applicant and despite the considerable amount of evidence presented by the parties. (CB 332.7)
Mr Young argues that despite this finding there was evidence to the contrary:
(a)The existence of a genuine relationship as per the factors set out in reg.1.15A.
(b)The relationship had existed for a considerable period of time.
Yet these matters did not outweigh the Tribunal’s adverse finding about the visa applicant’s lack of commitment to the relationship.
Mr Young then referred the Court to the following passages in the Tribunal decision under the heading “The nature of the persons’ commitment to each other”:
On the basis of the written and oral evidence before it, the Tribunal accepts that the review applicant is strongly committed to the relationship. However, the Tribunal is not satisfied about the visa applicant’s commitment to the relationship. (CB 331.4)
The visa applicant’s initial responses in oral evidence caused the Tribunal to question her commitment (CB 331.7). It was further concerned about the following:
The Tribunal’s concern about the delay in making the application as pointing to the applicant’s lack of commitment. (CB 331.9)
However, for the reasons stated above, the Tribunal is not satisfied that the visa applicant has any commitment to the review applicant or the relationship with the review applicant. (CB 332.7)
Mr JR Young argues that while the Tribunal stated that it considered all aspects of the relationship and found adversely despite the “considerable amount of evidence presented by the parties”, the basis of the decision is exposed in the following passage:
The Tribunal has had regard to the entirety of evidence provided by the visa applicant and the review applicant throughout the processing of the application. The Tribunal accepts that some evidence addresses the factors set out in r.1.15A and suggests the existence of a genuine relationship. However, such evidence does not outweigh the Tribunal’s concerns outlined above. Neither does the fact that the parties had resided together for a period exceeding six months and r.1.15A(5) – and the fact that the relationship itself existed for a considerable period of time – outweighed the Tribunal’s adverse findings about the visa applicant’s lack of commitment to the relationship. (CB 334.2)
Mr JR Young submits that in determining whether persons are in a married relationship, the decision-maker must have regard to all the circumstances of the relationship in particular those in reg.1.15A(3)(a),(b),(c),(d). The Tribunal is not entitled to note that it has “concerns” about a matter and then treat the evidence relating to the reg.1.15A(3)(a),(b),(c),(d) as having to “outweigh” that factor. This is because the Tribunal is required to have regard to all the circumstances of the relationship in particular those identified in the regulation.
Mr JR Young argues that the approach of the Tribunal in this case was precisely what is prohibited by reg.1.15A(3). Instead of having regard to all the circumstances of the relationship, the Tribunal had regard to one circumstance only. Even though the result of the Tribunal’s consideration under reg.1.15A(3) was “the existence of a genuine relationship”, the Tribunal required that conclusion to outweigh its concerns about another matter. The relationship had existed for a considerable period of time, however, this was not considered because it did not outweigh concerns about the visa applicant.
Ms McWilliam submits that the Tribunal did undertake the task of evaluation with care and attention to detail. After considering all of the evidence, it made a credibility finding which outweighed the evidence. Ms McWilliam contends that it is not a weighting of the various elements of the evidence when the Tribunal concluded that it did not believe the visa applicant.
I agree with Ms McWilliam’s submission that reg.1.15A does not prohibit the making of a credibility finding. That finding was a determination of the visa applicant’s commitment to the marriage and the evaluation needed to be “based on human experience, understanding and the perception of the available spectrum of potentially relevant circumstances of each potential case”: Liu at [23]. I am satisfied that this ground cannot be sustained.

Conclusion

I am satisfied that none of the grounds in the amended application can be sustained and that this application should be dismissed with costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 24 April 2008