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Federal Court of Australia |
Last Updated: 19 August 2004
FEDERAL COURT OF AUSTRALIA
Ling v Minister for Immigration & Multicultural & Indigenous Affairs
MIGRATION – Other Family (Migrant) (Class BO) visa
– review by Migration Review Tribunal – information which Tribunal
considers
would be reason or part of the reason for affirming decision under
review – Tribunal’s duty to invite comment –
whether Tribunal
failed to perform duty – discretion to refuse relief – whether
performance of duty would have resulted
in practical injustice –
s 359A of the Migration Act 1958 (Cth)
INTERPRETATION
– meaning of ‘information’ – meaning of ‘the
application’ – subs 359A(1), subs 359A(4)
of the
Migration Act 1958 (Cth)
ADMINISTRATIVE LAW –
procedural fairness – apprehension of bias – decision of Migration
Review Tribunal – whether a fair-minded
lay person properly informed would
apprehend bias
Judiciary Act 1903 (Cth) s 39B
Migration
Act 1958 (Cth) s 357A, s 359A, s 479, subs 29(1), subs
474(1)
Migration Regulations 1994 r 1.15, cl 1123A of sch 1,
cl 115 of sch 2
Minister for Immigration &
Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 75 ALD 386
applied
Plaintiff S157 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476
cited
Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919;
(2001) 110 FCR 27 followed
Paul v Minister for Immigration and
Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 followed
Re Refugee Review
Tribunal; Ex Parte H 75 (2001) ALJR 982 applied
Tin v Minister for
Immigration and Multicultural Affairs [2000] FCA 1109 cited
VAF v
Minister for Immigration & Multicultural & Indigenous Affairs [2004]
FCAFC 123 considered
VUAX v Minister for Immigration & Multicultural
& Indigenous Affairs [2004] FCAFC 158 applied
PING LIU
LING AND GUANG PING ZHANG v MINISTER FOR IMMIGRATION & MULTICULTURAL &
INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL
OF THE COMMONWEALTH OF
AUSTRALIA
N 800 of 2004
BRANSON J
19
AUGUST 2004
SYDNEY
|
PING LIU LING
FIRST APPLICANT GUANG PING ZHANG SECOND APPLICANT |
|
|
AND:
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MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS
AFFAIRS
FIRST RESPONDENT MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT |
|
DATE OF ORDER:
|
|
|
WHERE MADE:
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THE COURT ORDERS THAT:
1. The application be dismissed. 2. The applicants pay the respondents’ costs.
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AND:
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REASONS FOR JUDGMENT
INTRODUCTION
1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Migration Review Tribunal (‘the Tribunal’) made on 21 April 2004 to affirm the decision of a delegate of the first respondent (‘the Minister’) that the second applicant is not entitled to an Other Family (Migrant) (Class BO) visa.
2 The respondent submitted that, by reason of s 479 of the Migration Act 1958 (Cth) (‘the Act’), the second applicant is not a proper party to this proceeding. Section 479 identifies the parties to a review of a privative clause decision in a way that would exclude the second applicant if the decision of the Tribunal is a privative clause decision. This proceeding is brought in an endeavour to establish that the decision of the Tribunal is not a privative clause decision. It understandably has not been suggested that the second applicant does not have a proper interest in the relief sought by the application. For these reasons it cannot be concluded ahead of the determination of the proceeding that the second applicant is not a proper party to the proceeding.
3 The critical issue that the Tribunal was required to determine was whether the second applicant had satisfied the Tribunal that he was no longer in a spousal relationship with his former wife (see [23] and [24] below). The Tribunal concluded that the second applicant had not discharged this evidentiary burden.
4 The applicants claim in this proceeding that the Tribunal failed to exercise its jurisdiction lawfully in that it failed to comply with subs 359A(1) of the Act. The applicants also claim that the Tribunal contravened the requirements of procedural fairness and that the Tribunal conducted itself in a manner that gave rise to a reasonable apprehension of bias against the applicants.
5 For the reasons given below I have concluded that the application should be dismissed.
RELEVANT FACTS
6 Ms Ling, the first applicant, was born in China on 16 March 1936. She arrived in Australia on 15 September 1990 and was granted permanent residence on 21 January 1994. Ms Ling became an Australian citizen on 29 May 1997.
7 Ms Ling is the mother of Mr Zhang, the second applicant. Mr Zhang has been divorced since 2 March 2000. Mr Zhang and his former spouse, Ms Li, have a son, Xiao Zhang, who is aged 19 years and lives with Mr Zhang.
8 On 24 May 2000 the Department of Immigration and Multicultural Affairs (‘the Department’), as it was then known, received Mr Zhang’s application for an Other Family (Migrant) (Class BO) on behalf of himself and his son. On 5 April 2000 Ms Ling had made an application to sponsor Mr Zhang and Xiao for the purposes of their obtaining those visas which, if granted, would entitle Mr Zhang and his son to enter and remain permanently in Australia.
9 On 1 August 2002, two officers of the Department based in China conducted a site visit at Mr Zhang’s residence in Zhaoqing City, Guangdong Province, China. A site visit report dated 7 August 2002 (‘the site report’), signed by the senior of the two officers, states:
‘I observed a quantity of women’s clothing in Mr Zhang’s wardrobe and woman’s shoes on the floor. He initially said:
• that the clothing belonged to an old girlfriend who left him one year ago
• he had not cleaned out the room because he was lazy
• the old girlfriend’s name is Huang Ai wen.
• she lived with him for less than one month and he last saw her one year ago.
I observed 3 toothbrushes and woman’s hairspray in the bathroom.
Mr Zhang then stated that the clothes belonged to his sisters who left them behind last time they visited him.
He advised that he is not on friendly terms with his ex-wife. The last time he saw he was at the divorce procedures. His son maintains weekly contact with her. The son then advised that he usually sees his mother once a week at a restaurant or at his grandmother (who lives nearby). His mother has recently moved to Guangzhou and he does not yet have her new contact details.
As I left the top story apartment I noticed washing hanging out to dry. There were several items of men and women’s clothing. Mr Zhang claimed that this woman’s clothing belonged to one of his neighbours who was washing. He admitted the men’s clothing belonged to him.’
10 The site report concludes with the following comment:
‘I found Mr Zhang’s response on who the women’s clothing belonged to evasive and inconsistent. In my view the clothing belongs to a female who resides at the apartment. I can make no conclusions as to whether the identity of this woman is the same as the ex-wife or another person.’
11 According to the decision record of the Department, another unannounced site visit took place on 10 October 2002. No record of this site visit was placed before the Court.
THE DELEGATE’S DECISION
12 A delegate of the Minister refused Mr Zhang’s visa application on 18 November 2002. The decision record states that:
‘● a site visit to the applicant’s place of residence was undertaken unannounced on 07 august [sic] 2002 folio 44 refers and a further visit was undertaken unannounced on 10 October 2002. Ims [sic] case notes refers;
• enough evidence was obtained during both site visits to reach the conclusion that the applicant is in a long term relationship. Refer to folios 44 and case note for details;
● the evidence supports that applicant’s relationship is with his ex wife Li Yua Hua;
● the evidence shows that the applicant and LI reside at the same premises as indicated by the women’s apparel and toiletries on the premises. The claims made by the applicant to the contrary are not credible;
● from all the evidence obtained from the site visits it is reasonable to conclude that the applicant and LI are in a marital relationship;
● the applicant’s partner has a father, mother, brother and two sisters living in China; and
● the applicant’s partner has regular contact with her family.’
13 The delegate concluded that Mr Zhang, and therefore his son, had failed to meet the criteria required to be satisfied at the time of application for the Other Family (Migrant) (Class BO) visa.
14 Mr Zhang was notified of this decision by a letter from the Australian Visa Office in Guangzhou. The letter also informed him that his sponsor, Ms Ling, could apply to the Tribunal for review of the decision within 91 days of the date of the letter.
THE TRIBUNAL PROCEEDINGS
15 Ms Ling made an application for review to the Tribunal on 29 January 2003, stating within that application that she would provide further submissions. Ms Ling provided further information to the Tribunal on 16 September 2003.
16 On 1 December 2003, the Tribunal wrote to Ms Ling inviting her to comment on information. The letter extended the invitation in the following way:
‘You are invited to comment, in writing, on the following information:
• A report of a site visit conducted on 1 August 2002 at your son’s residential address reveals there was evidence of woman’s clothing and toiletries.
This information is relevant to the review because this may lead the member to conclude that your son is in a spousal relationship with his ex wife. If this is considered the case all her relatives are considered as his "overseas near relatives". This indicates your son may not be able to satisfy the definition of remaining relative in Regulation 1.15(1)(c)(i) which stipulates that your son and his spouse cannot have an "overseas near relative" residing in China. Thus he may not satisfy subclause 115.211.
....
Additionally, Section 359 of the Migration Act 1958 allows the Tribunal to invite a person to give it additional information that it considers relevant to the review of a migration decision. In order to better assess your case, the Presiding Member has asked that you provide the following information:
• Evidence that your son and his ex wife are no longer in a spousal relationship and have not been in a relationship since the date of the application for the visa’
17 Although the invitation was addressed to Ms Ling, as the applicant before the Tribunal, it was Mr Zhang who responded on 5 January 2004. In his response, Mr Zhang stated that the women’s clothing, shoes and toiletries belonged to his mother and sisters, who visit each year, and a prostitute.
18 The Tribunal hearing took place in Sydney on 25 February 2004. Ms Ling and her daughter, Ms Zhang, were present and gave evidence, and Mr Zhang gave evidence by telephone from China. The Tribunal allowed further time for additional submissions to be made to it. Under cover of a letter dated 15 March 2004, which includes a long and apparently critical review of the way in which the hearing of 25 February 2004 was conducted, the applicants’ solicitors provided to the Tribunal an English translation of a Paper of Civil Judgment dated 24 June 1999. The judgment records different addresses for Mr Zhang and his then wife. Under cover of the same letter the Tribunal was provided with a copy of a letter dated 27 November 2002 from Mr Zhang to Mr Ringrose of the Australian Visa Office in Guangzhou. The letter states that on 10 October 2002, the date of the second site visit, Mr Zhang was not in Guangdong Province and that he had evidence to support this absence from home. The letter also states that on that date his mother and sister were staying in his home. Further information was also given about contact with his former spouse, and Mr Zhang offered to obtain evidence from neighbours and others to support his claims.
THE TRIBUNAL DECISION
19 The decision of the Tribunal to affirm the delegate’s decision that the visa applicant was not entitled to the grant of the Other Family (Migrant) (Class BO) visa was made on 21 April 2004. The Tribunal found that:
‘... none of the evidence purporting to explain the presence of female attire at the home of the visa applicant on two occasions when the Departmental officers visited is credible...Neither the review applicant nor her daughter identified a single item of clothing, including shoes, that they claim to have left at the visa applicant’s home. Given this inability to identify any item of their property the Tribunal finds that the claims of the review applicant and of her daughter to have stayed at the home of the visa applicant and to have left the items found by the Department lacks credibility ....
... The Tribunal notes that there is no other evidence of the visa applicant and his ex-spouse establishing two households prior to lodgement of this application ....
... The Tribunal finds...that the visa applicant has not discharged his evidentiary burden that he and his ex-spouse were no longer in a spousal relationship at the date of application.’
20 The Tribunal therefore concluded that, by reference to his former spouse’s family, Mr Zhang had more than three overseas near relatives within the meaning of r 1.15 of the Migration Regulations 1994 (‘the Regulations’). The Tribunal decided that it therefore had no alternative but to affirm the decision of the delegate that Mr Zhang was not entitled to be granted the visa for which he had applied.
21 An application to review the decision of the Tribunal and for relief in the nature of the prerogative writs was made to this Court on 17 May 2004. On 9 July 2004 leave was granted to the first applicant to file in court an amended application (‘the Application’). The Application sets out the grounds of review referred to in [4] above.
STATUTORY FRAMEWORK
22 The power of the Minister to grant a non-citizen permission to travel to, enter and remain in Australia is derived from subs 29(1) of the Act. Subsection 29(1) states that
‘Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
(a) travel to and enter Australia; (b) remain in Australia.’
23 The Regulations set out, among other things, the classes of visa that may be applied for and criteria to be satisfied by a visa applicant at the time of application and at the time the visa is granted. Clause 1123A of Schedule 1 to the Regulations provides for the Other Family (Migrant) (Class BO) visa. Criteria to be satisfied by an applicant for an Other Family (Migrant) (Class BO) visa are contained in clause 115 of Schedule 2 to the Regulations. Relevantly, subclause 115.21 reads as follows:
‘115.211 (1) The applicant is a remaining relative of an Australian relative of the applicant.
(2) In this clause, Australian relative, in relation to an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
115.212 The applicant is sponsored:
(a) if the Australian relative has turned 18 and is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen -- by the Australian relative; or (b) by the spouse of the Australian relative if:
(i) the spouse cohabits with the relative; and (ii) the spouse is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and (iii) the spouse has turned 18.’
24 The definition of ‘remaining relative’ is found in r 1.15. It is helpful to set r 1.15 out in full.
‘(1) An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
(a) the other person is a parent, brother, sister, step-parent, step-brother or step-sister of the applicant; and
(b) the other person is usually resident in Australia; and
(c) if the applicant or the applicant’s spouse (if any) has an overseas near relative:
(i) the applicant and the applicant’s spouse (if any) usually reside in a country, not being Australia, that is different to the country in which that relative resides; and (ii) neither the applicant nor the applicant’s spouse (if any) have had contact with that relative within a reasonable period before making the application; and
(d) the applicant and the applicant’s spouse (if any) together have not more than 3 overseas near relatives; and
(e) if the applicant is a child who:
(i) has not turned 18; and
(ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (the adoptive parent) while overseas --
at the time of making the application, the adoptive parent has been residing overseas for a period of at least 12 months.
(2) In this regulation:
overseas near relative, in relation to an applicant, means a person who is:
(a) a parent, brother, sister, step-parent, step-brother or step-sister of the applicant or of the applicant's spouse (if any); or
(b) a child (including a step-child) of the applicant or of the applicant’s spouse (if any), being a child who:
(i) has turned 18 and is not a dependent child of the applicant or of the applicant's spouse (if any); or
(ii) has not turned 18 and is not wholly or substantially in the daily care and control of the applicant or of the applicant's spouse (if any) --
other than a relative of that kind who:
(c) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) is usually resident in Australia.
(3) For the purposes of paragraphs (1) (c) and (d), an overseas near relative is taken to reside in his or her last known country of residence unless the applicant satisfies the Minister that the relative resides in another country.’
25 The statutory framework within which the Tribunal operates is found in Part 5 of the Act. Division 2 of Part 5 sets out decisions that are reviewable by the Tribunal and Division 5 of Part 5, which contains s 357A and s 359A, sets out provisions governing the conduct of a review by the Tribunal. Section 357A relevantly provides:
‘(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with ....’
26 Section 359A provides:
‘(1) Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in a way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.’
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.’
27 Finally, section 474(1) of the Act states that:
‘(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the following:
(a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
....’
CONSIDERATION
Failure to comply with s 359A of the Act
28 Section 359A of the Act is in terms that are for present purposes identical to the terms of s 424A, which governs the conduct of the Refugee Review Tribunal. In Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 (‘Paul’) Allsop J, with whom Heerey J agreed, observed at [104]:
‘The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. ....’
To understand what Allsop J meant by the final sentence of the above passage it is useful to refer to [109]-[110] of his Honour’s reasons for judgment in Paul:
‘The evidence of Mr John Knight that his wife’s brother died in 1986 and that the appellant’s husband died before then was information. It was knowledge which came to the Tribunal. It had a relevance to the review because it assisted Mr John Knight to fix the date of death of the appellant’s husband. It provided a reason for preferring one witness over others. It thereby provided a reason for the finding of a fact central and adverse to the appellant’s claim.
In one sense, it is perfectly accurate to say that this information and its assessment was a reason for preferring one witness over others. But I think it can be also said, because of its importance in the reasoning process, that it was a part of the reason for finding the date of death of the appellant’s husband to be before 1986 and not in 1995. Thus expressed, it was a part of the reason for rejecting her claims, because of the central importance of the assertion of the date of death.’
29 In VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 (‘VAF’) Finn and Stone JJ at [28] characterised the Refugee Review Tribunal’s knowledge of certain behaviour of the appellant as ‘information’ within the meaning of s 424A. At [29]-[33] their Honours went on to observe:
‘This conclusion brings into focus the second of the s 424A(1) requirements: "Was the information the reason or a part of the reason for its decision?" We cast the matter in this fashion because we agree with the majority view in Paul’s case that, though the subsection addresses the matter prospectively (i.e. "the Tribunal considers would be the reason etc"), the question of compliance with s 424A(1)(a) is to be judged retrospectively in light of the Tribunal’s actual decision: see Paul at [94]; and cf Beaton-Wells, "Disclosure of Adverse Information to Applicants under the Migration Act 1958" (2004) 11(2) AJ Admin L 61 at 64 – 65.
The information concerning the appellant’s behaviour clearly was not "the reason" for the Tribunal’s decision. But was it "a part of the reason"? As we have indicated, the Tribunal considered it to have some relevance to the determination to be made. And the Tribunal’s treatment of that information (i.e. the "significance" attributed to it) equally had a place in its reasoning process. However, it is not necessarily the case that for either or both of these reasons, the circumstances attract the obligation of s 424A(1)(a). The subsection itself requires identification of the reason for affirming the decision under review.
The ultimate "reason" was that the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations. However, as Allsop J indicated in Paul (at [99]), there needs to be "some unbundling" of that reason for s 424A purposes and that (at [100]):
"[i]n any given circumstance it may not be straightforward to identify from an expressed reasoning process whether information was the reason or a part of the reason for affirmation."
There were divided views in Paul’s case as to whether the "reason" for s 424A(1) purposes was to be determined by reference to the requirements of s 430 of the Act which stipulates what is to be contained in a Tribunal’s written reasons. The majority rejected that the two sections were so tied, while acknowledging that assistance in s 424A cases may be derived from s 430. As we are not satisfied that this view is clearly wrong we intend to follow it.
It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal’s decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal’s reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal’s decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral.’
30 Their Honours’ conclusion on whether the information was ‘the reason or a part of the reason for its decision’ is expressed at [41] as follows:
‘Considered in the context of the Tribunal’s reasoning process and having regard to the aggregate of findings made that rejected both that the appellant had been persecuted for a Convention reason and that his situation was such as to give rise to a well founded fear of persecution, reference to the information as to his behaviour in Australia can only be categorised as being relatively minor and unimportant in the scheme of things. It was not so integral to the reasoning process rejecting the appellant’s claim as to require as a matter of fairness that the appellant be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b)).’
31 In VAF Merkel J at [50] agreed with Finn and Stone JJ that the issue for determination was whether the Tribunal considered that the information in question would be the reason or part of the reason for its decision, and that the question of compliance was to be judged retrospectively in light of the Tribunal’s actual decision. However his Honour adopted a different approach from that adopted by Finn and Stone JJ to the determination of whether the information was the reason, or part of the reason, for the Tribunal’s decision. At [57]-[60] Merkel J observed:
‘Whether the Tribunal accepted the appellant’s version of the past events on which his fear of persecution is based was critical to the outcome of his claim. In the present case the appellant’s account of past events was not believed, and as a consequence the Tribunal concluded that the appellant does not have a well-founded fear of persecution. The adverse finding on credibility was the primary reason for the Tribunal’s affirmation of the delegate’s decision.
It must follow that the question arising on the present appeal is whether the information concerning the appellant’s behaviour after his arrival in Australia was stated by the Tribunal to be a reason for the adverse general finding it made against him in relation to his credit. If the Tribunal did make such a statement it would follow that that information was considered by the Tribunal to be part of the reason for its decision. In such circumstances there would be no role for questioning whether the information was:
• a more, or a less, significant part of the reason for its decision; • an integral or essential part of the reason for the decision; or • "sufficiently important" to the reasoning process to warrant that s 424A apply.
As I later explain, those questions might be relevant to the exercise of the Court’s discretion to decline to grant relief if a breach of s 424A has occurred.
There is an additional difficulty with the Court, in ascertaining whether information is a part of the reason for a decision, engaging in an evaluation of the relative importance of the information to the reasoning process. Information that has been stated to be part of the reason for the decision might appear to be only a minor part of the reasoning, but had it been put to the applicant that information might have elicited a response which may have had an impact on the Tribunal’s decision. Thus, there is an inherent problem in assessing the importance of the information in question without having the response the applicant would have given to it had he or she been apprised of the information and of its significance. As was observed by Megarry J in John v Rees at [1970] 1 Ch 345 at 402 "the path of the law is strewn with examples. of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."’
32 The applicants contend that the letter sent to Ms Ling dated 1 December 2003 (see [16] above) did not fairly inform the applicants of the alleged inconsistencies in the explanations previously provided for the presence of female clothing in Mr Zhang’s residence. They contend that they were entitled to be informed of the information as to the alleged inconsistencies notwithstanding that their solicitors had obtained a copy of the site report. They further contend that:
‘The error is not subject to the exception in s 359A(3)(b). It was the report, provided by a migration officer that alleged inconsistencies and upon which the Tribunal relied. It did not rely on information given by the applicant.’
33 In considering the applicants’ contentions it is necessary first to determine whether the alleged inconsistencies in the explanations previously provided for the presence of female clothing in Mr Zhang’s residence were information within the meaning of subs 359A(1). The information of which subs 359A(1) requires particulars to be given is information that has come to or been gained by the Tribunal; it is not the subjective appraisal or thought processes of the Tribunal (Paul Allsop J at [95] agreeing with Sackville J in Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109).
34 The site report records that Mr Zhang initially said that the women’s clothing in his residence belonged to an old girlfriend who lived with him for one month and later stated that the clothes belonged to his sisters who left them behind last time they visited him. The site report also records the opinion of the author of the site report that Mr Zhang’s responses concerning the ownership of the women’s clothing were evasive and inconsistent. The Tribunal was thus relevantly informed by the report of three matters, namely:
(i) Mr Zhang had stated that the clothing belonged to an old girlfriend;
(ii) Mr Zhang had also stated that the clothing belonged to his sisters who had left it behind last time they visited him; and
(iii) The author of the report found Mr Zhang’s responses concerning the ownership of the women’s clothing evasive and inconsistent.
35 In my view, each of the above three matters was information within the meaning of subs 359A(1). However, the fact that the Tribunal considered the statements that Mr Zhang was reported to have made to be inconsistent was not itself information but rather the outcome of the Tribunal’s appraisal of the information contained in the site report.
36 If the information identified above, or any of it, was information ‘that the applicant gave for the purpose of the application’ within the meaning of par 359A(4)(b) of the Act, s 359A would not apply to it (see [26] above). In Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919; (2001) 110 FCR 27 the Full Court (Ryan, Merkel and Conti JJ) expressed the view that the term ‘application’ in par 424A(3)(b) means the application to the Tribunal for review of the primary decision and not the application for a protection visa. Their Honours’ view was strictly obiter dicta and some doubt has been expressed concerning its correctness (see, for example, VAF at [17] and [22]). However, their Honours’ view has now been followed in a number of cases and I consider that I should do likewise. Therefore, by analogy with par 424A(3)(b), the reference in par 359A(4)(b) to ‘the application’ must be seen as a reference to the application to the Tribunal and not the application for a visa. For this reason the respondent’s submission that par 359A(4)(b) has the effect that s 359A does not apply to the information must be rejected. The date of the site report is earlier than the decision of the respondent’s delegate and some months earlier than the date of the application for review to the Tribunal. The information given by Mr Zhang that is recorded in the site report is plainly not information given by him for the purpose of the application for review to the Tribunal.
37 It is therefore necessary to determine whether the information, or any of it, was information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that was under review (par 359A(1)(a)). The authorities reveal that before this determination can be made it is necessary to identify the Tribunal’s reasons for affirming the decision under review.
38 The Tribunal’s reason for affirming the decision under review was that Mr Zhang did not meet the requirements of clause 115.211 of Schedule 2 to the Regulations. However, as Allsop J observed in Paul at [99] ‘some unbundling of the immediate reason for the affirmation is required’. The Tribunal concluded that Mr Zhang had not discharged the evidentiary burden of satisfying the Tribunal that he and his former spouse were not in a spousal relationship at the date of the visa application. The reasons for decision of the Tribunal reveal that the Tribunal reached this conclusion because:
(a) the evidence in support of the claim was scant; and
(b) the oral evidence on the topic was unconvincing because evidence of Mr Zhang and his sister, who also gave evidence at the hearing, was lacking in credibility.
39 The reasons for decision of the Tribunal disclose that it took into account a number of factors in determining that the evidence of Mr Zhang and his sister lacked credibility. These factors were:
(a) that on the first site visit Mr Zhang initially stated that the female attire found at his residence belonged to a girlfriend and then said that they belonged to his sisters;
(b) in a written submission dated 2 January 2004 Mr Zhang said that the clothes belonged to his mother, sisters and a tenant/prostitute;
(c) in a statement made on 2 December 2002 Mr Zhang said that his home is mostly rented out but the evidence set out in a submission dated 19 March 2004 appeared inconsistent with Mr Zhang’s home being mostly rented out;
(d) no travel tickets or other documentary evidence shows that Ms Ling or any of her daughters have travelled to the city where Mr Zhang resides;
(e) Mr Zhang claimed that he did not know who owned any single item that was found at his residence, which was inconsistent with other explanations which refer to specific persons as being the owners of the clothes;
(f) Neither Ms Ling nor her daughter identified a single item of clothing, including shoes, that they claimed to have left at Mr Zheng’s residence.
40 Nothing in the reasons for decision of the Tribunal suggest that it placed any weight on the information that the author of the site report found Mr Zhang’s responses concerning the ownership of the women’s clothing evasive and inconsistent. The Tribunal made its own assessment of the significance of what the site report recorded as having been said by Mr Zhang. I conclude that the information that the author of the site report found Mr Zhang’s responses evasive and inconsistent was not information that fell within the terms of par 359A(1)(a).
41 The information that during the first site visit Mr Zhang had stated first that the women’s clothing belonged to an old girlfriend and then that the clothing belonged to his sisters who had left it behind last time that they visited him was information upon which the Tribunal placed weight in affirming the decision under review. The test that I consider should be applied in these circumstances is that applied by Finn and Stone JJ in VAF and approved in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [54]. I must therefore interpret the reasons of the Tribunal to isolate the integral parts of its reasons; information that is to be categorised as being ‘relatively minor and unimportant in the scheme of things’ (see [30] above) is not to be regarded as the reason or part of the reason for affirming the decision under review.
42 In my view the present is a borderline case having regard to the above test. The information was taken into account by the Tribunal, along with considerable other material, in reaching a credibility finding that itself provided one of two bases for the Tribunal’s critical conclusion that Mr Zhang had not discharged the evidentiary burden of satisfying the Tribunal that he and his former wife were not in a spousal relationship at the date of the visa application. However, to so state the matter probably understates the significance of the information. The Tribunal’s whole attitude to Mr Zhang’s credibility may have been different had it not had the information concerning the statements reportedly made by Mr Zhang during the first site visit as to the ownership of the women’s clothing. Further, as Merkel J (in dissent on this opinion) pointed out in VAF at [60] it can be difficult to assess the importance of information without knowing the response that an applicant would have made had he or she been apprised of the information and of the significance that the Tribunal attached to it.
43 With some hesitation I conclude that the information about what Mr Zhang said during the first site visit as to the ownership of the women’s clothing was information of which the Tribunal was required by subs 359A(1) to give particulars to Mr Zhang. I therefore conclude that the Tribunal failed to comply with the requirements of par 359A(1)(a).
44 In Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 75 ALD 386 the Full Court held that a failure to comply with subs 359A(1) constitutes jurisdictional error by the Refugee Review Tribunal (per Gray J at [12]; Marshall at [61] and Merkel J at [101]). If a decision is affected by jurisdictional error, in the sense that the Tribunal has acted outside its statutory power, it not a privative clause decision and thus not a decision that s 474 of the Act protects from judicial review (Plaintiff S157 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476). Nonetheless, if I reach an affirmative conclusion that this is one of the rare cases in which compliance by the Tribunal with subs 359A(1) could make no difference to the result reached by the Tribunal, I should withhold relief (VAF at [45]).
45 In contending that any breach of subs 359A(1) in this case resulted in no practical injustice and could not have affected the Tribunal’s decision, the respondent relied on, amongst other things, the following uncontested facts:
(a) the record of the decision of the delegate of the Minister makes reference to the site report;
(b) the applicants, by their solicitor, obtained a copy of the site report under the Freedom of Information Act 1982 (Cth) before the Tribunal hearing;
(c) the information concerned statements made by Mr Zhang himself; and
(d) the transcript of the Tribunal hearing reveals that the Tribunal raised with Mr Zhang that he had given different explanations for the presence of the women’s clothing and subsequently gave the applicants a period of more than two weeks to provide further evidence to the Tribunal.
Additionally, I note that the letter sent by the Tribunal pursuant to subs 395A(1) invited comment on the fact that the site report revealed evidence of women’s clothing and toiletries and sought evidence that Mr Zhang and his former wife had not been in a spousal relationship since the date of the application for the visa.
46 In my view, having regard to the above uncontested facts, I can be satisfied that it could not have made any difference to the result reached by the Tribunal if the Tribunal had strictly complied with the requirements of subs 359A(1). The applicants, who enjoyed the benefit of legal representation, were fully aware of the information contained in the site report and may therefore be assumed to have been aware of its potential significance before they took part in the Tribunal hearing. Nothing new would have been brought to their attention had the Tribunal strictly complied with s 359A(1) in respect of the information in the site report. Moreover, the significance that the Tribunal attached to the information in the site report was drawn to their attention during the course of the hearing and they thereafter had more than two weeks to place further evidence or submissions before the Tribunal.
47 The applicants’ claim for relief so far as it relies on the Tribunal’s failure to comply with subs 359A(1) will be dismissed.
Breach of natural justice
48 The applicants also claim that the Tribunal breached the rules of natural justice in the way that it approached the evaluation of the evidence and other material before it. They rely on [33] of the Tribunal’s reasons for decision where the Tribunal states:
‘Neither the review applicant nor her daughter identified a single item of clothing, including shoes, that they claim to have left at the visa applicant’s home. Given this inability to identify any item of their property the Tribunal finds that the claims of the review applicant and of the daughter to have stayed at the home of the visa applicant and to have left the items found by the Department lacks credibility.’
49 As is mentioned above, by letter dated 1 December 2003 the Tribunal invited Ms Ling to comment on the information that:
‘A report of a site visit conducted on 1 August 2002 at your son’s residential address reveals there was evidence of women’s clothing and toiletries.’
50 Ms Ling made no comment herself in response to the letter dated 1 December 2003. The applicants’ solicitors responded to the letter by providing the Tribunal with a statement from Mr Zhang. The solicitors did not provide the Tribunal with a statement from either Ms Ling or Ms Ling’s daughter. Nor did either Ms Ling or her daughter, in the course of their respective evidence to the Tribunal, provide particulars of any item of clothing, including shoes, that they claimed to have left at Mr Zhang’s residence.
51 I reject the contention of the applicants that ‘it was fundamentally unfair for the Tribunal to rely on what is in effect a person’s failure to answer questions which were not asked to impugn credit’. The applicants, who had the benefit of legal representation, were at all times aware of the significance that the Tribunal attached to the presence of women’s clothes, including shoes, at Mr Zhang’s residence at the time of the first site visit. They were also aware that the veracity of the suggestion that some, at least, of the clothes belonged to Ms Ling and her daughter was an issue. In the circumstances, the Tribunal was entitled to expect that they would have volunteered identification of any of their own clothing or shoes that they claimed to have left in Mr Zhang’s residence and to place weight on their failure to do so.
52 In the light of my above conclusion it is unnecessary for me to rule on whether s 357A would, in any event, prevent the applicants from raising a complaint that the Tribunal denied them procedural fairness.
Apprehended Bias
53 The claim that the Tribunal conducted itself during the course of the hearing in a manner that gives rise to a reasonable apprehension that it was biased against the applicants calls for consideration of the transcript of the hearing before the Tribunal.
54 The transcript reveals that the Tribunal sought to impress on the applicants’ legal representative the evidentiary value of independent documentary evidence that would show that Mr Zhang and his former spouse were maintaining separate households at the time of the visa application. For example the Tribunal is recorded as asking:
‘Do you have any evidence at all that she [i.e. Mr Zhang’s former wife] lived anywhere else, do we have any documentary evidence whatsoever that these two people lived separately and apart, were living separately apart on the 24 May 2000?’
55 The Tribunal indicated that it did not think that oral evidence from Mr Zhang’s son would be particularly useful - apparently because he had been listening to Mr Zhang give evidence. The Tribunal also indicated that it was ‘a well accepted fact’ that one cannot rely on a document such as a household registration document obtained ‘after the event’. The Tribunal made it clear that it would find helpful evidence of the type that would be presented to the Family Court of Australia in support of an application for a decree of dissolution of marriage where the parties must establish that they have lived separately and apart for a period of not less than twelve months. It discouraged the applicants’ legal representative from trying to obtain a local court document from China on the basis that it would only provide indirect evidence. Nonetheless, as is mentioned above, by letter dated 15 March 2004 the applicants’ solicitor provided to the Tribunal an English translation of a Paper of Civil Judgment dated 24 June 1999 which shows different addresses for Mr Zhang and his then wife.
56 The applicants contend that the transcript reveals that the Tribunal had irrevocably prejudged the kind of evidence that it would find acceptable and that nothing that the applicants could have said or done would have changed this preconceived view. I do not consider that this is a fair reading of the transcript of the Tribunal hearing. It seems to me that the Tribunal was seeking to bring home to the applicants’ representative that, as problems of credibility might be found to attend the evidence and other material placed before the Tribunal by the applicants touching on the issue of whether Mr Zhang was living in a spousal relationship with his former wife as at the date of the visa application, she should bring to the Tribunal’s attention any independent and direct evidence that was, or could be made, available on the issue. The Tribunal was also, in my view, seeking to impress on the applicants’ legal representative that evidence the probative value of which was limited would be of little assistance to the Tribunal.
57 The appropriate test to be applied in determining whether the conduct of the Tribunal gave rise to an apprehension of bias is that identified by the High Court in Re Refugee Review Tribunal; Ex Parte H 75 (2001) ALJR 982 at [28]. That test is whether a hypothetical fair-minded lay person, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to have given rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided. In the circumstances of this case, I am not satisfied that a hypothetical fair-minded lay person with the information that the test requires might have apprehended that the Tribunal might not bring an impartial mind to the question it was required to decide. It is true that the transcript suggests that both the Tribunal member and the applicants’ legal representative became somewhat exasperated during the latter part of the hearing and that the standards of mutual courtesy ordinarily to be expected during such a hearing may not have been fully observed. Although departure from such standards is always regrettable, a fair-minded person does not equate mere discourtesy with bias. Moreover, the Tribunal indicated a willingness to receive additional evidence from the applicants and provided a reasonable time frame within which any such additional information could be provided. The fact that the Tribunal adopted this course would, it seems to me, alleviate any concern that a hypothetical fair-minded lay person might have arising from the exchanges between the Tribunal and the applicants’ representative during the latter part of the hearing.
58 The claim that the decision of the Tribunal was affected by apprehended bias will be dismissed.
CONCLUSION
59 Having regard to the finding recorded in [43] above, the better view would seem to be that the decision of the Tribunal is not a privative clause decision because it is affected by jurisdictional error. I therefore reject the contention that the second applicant is not a proper party to the proceeding.
60 The application will be dismissed with costs.
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I certify that the preceding sixty (60) numbered paragraphs are a true copy
of the Reasons for Judgment herein of the Honourable Justice
Branson.
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Associate:
Dated: 19 August 2004
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Counsel for the Applicant:
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L Karp
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Solicitor for the Applicant:
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Craddock Murray Neumann
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Counsel for the Respondent:
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G Johnson
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Solicitor for the Respondent:
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Australian Government Solicitor
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Date of Hearing:
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9 July 2004
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Date of Judgment:
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19 August 2004
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2004/1069.html