Asif v Minister for Immigration & Multicultural Affairs

"In my opinion, the statute, when it used Devlin LJ's expression "actual bias", substituted a test that looks to whether the Tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially. I say "at least in some respect" because the statute extends to the situation where "the decision was … affected … by actual bias". The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach. It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice, if it were to be seen as other than exceptional." 9 In that case North J described the position in the following way at 134:

"Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant."

10 It is apparent, as the observations of Lockhart J in Singh make clear, that the fact that a decision-maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias. "There will be actual bias only when preliminary views are incapable of alteration": Wilcox J in Sun Zhan Qui at 123. The determination of whether actual bias has been shown must be made in the context of the hearing as a whole, and including all the material before the decision-maker. It will often be the case that the material before the decision-maker gives rise to preliminary views about the merits of the application under consideration, or some aspects of it. It is appropriate in those circumstances for the decision-maker to draw to the attention of the person seeking the decision, or the review of the decision, those views and to invite comment or a response upon them. In many instances, it would be remiss of the decision-maker not to do so. The decision-maker must, of course, remain willing to be persuaded that such preliminary views should be departed from in the light of the response, and any other relevant information. 11 Lockhart J also pointed out in Singh that:

"Bias is not synonymous with absence of good faith; a person may in all good faith believe that he was acting impartially, but his mind may nevertheless be affected unconsciously by bias." (References not included). 12 The observations of Burchett J in Sun Zhan Qui cited above make the same point. The Tribunal's reasons 13 The Tribunal made it clear at the outset of its reasons that the credibility of the applicant "is a central issue". 14 It relied upon the applicant's very bad migration history. That history was not contested. The applicant entered Australia first on 20 July 1989 on a student visa, and gave his date of birth as 1 October 1947. He later changed his date of birth to 1 October 1951, when he applied for a Class 816 entry permit on 15 July 1994. One criterion for that entry permit was that he was under forty-five years of age. He also later agreed at interview on 12 January 1998 that he was not a bona fide student at and from the time of that initial entry, but wished to escape political conditions in Pakistan. On 8 September 1990, the applicant's student entry permit expired and he became an illegal immigrant. On 6 January 1992, the applicant applied for a protection visa. He again gave his date of birth as 1 October 1947. He said his highest educational qualification was the completion of high school. That application was refused on 26 September 1997. In the meantime, the applicant applied for the Class 816 entry permit. In addition to providing a different date of birth, he asserted having obtained a Bachelor of Arts degree from the University of Punjab. He produced a falsified document to support that claim. Tertiary qualification was also a criterion for that entry permit. That application was later refused on 28 May 1996. 15 The present application was made on 24 November 1995. In the meantime, on 5 December 1995 and barely one month after his marriage, the applicant at interview in relation to the Class 816 entry permit application provided the following information at interview:

"Q 'Mr Asif, what is your marital status?' A 'I'm single'. Q 'Are you at this time living with a person - are you living with a female at your current address?' A 'No'. Q 'Do you have a defacto wife or a finance [sic, fiance]?' A 'No'. Q 'Who else if anyone else, is sharing the address you just gave us, are you sharing with anyone else at that address?' A 'With the owner'. Q 'And who is the owner?' A 'His name is Patrick Tag.' " 16 It is not surprising that the Tribunal found that the applicant had consistently lied in an attempt to remain in Australia. 17 The Tribunal also noted that, on 22 August 1994, the applicant was granted a Class 830 Processing Entry Permit pending a decision on his application for a Class 816 entry permit. The effect of that entry permit, following the commencement of the Regulations on 1 September 1994, was that the applicant was legally in Australia at the time of the subject application. 18 The Tribunal concluded that, as at the time of the subject application, it was not satisfied that the applicant had the relevant commitment to a shared life with Ms Asif to the exclusion of others. It accepted Ms Asif's evidence that she had that commitment. It found she was an honest witness. It referred expressly to the interview of 5 December 1995 shortly after the marriage. It then referred to the hearing on 22 April 1999 in the following way:

"I asked the Visa Applicant to the effect 'have you ever told lies to the Department.' He answered 'no'. I asked 'have you ever told lies either in application forms or at interviews, either in writing or orally?' He answered, 'no sir, I always tell the truth.' I then pointed out to him the effects of the above interview [the interview of 5 December 1995] and added that if what he just told me is true, then I accept the truthfulness of his answers at the above interview. Having heard me say this, he tried to retract his evidence. He tried to explain that he told lies at that interview because he was afraid that if he told the truth it would harm his application. I then put to him to the effect that why should I believe, in view of his past history, that he is now being truthful regarding the genuineness of his marriage commitment? He replied, 'now I am telling the truth' and 'I love my wife'." 19 Notwithstanding Ms Asif's evidence, which was accepted, about a period of some months' courtship, that she and the applicant have been living together since the marriage, and that they are happy together, that they share finances and assets, and that the applicant is regarded by her son (from a previous marriage) as a father, and notwithstanding a lot of supporting documentation concerning their shared life in the years since the marriage, the Tribunal reached the conclusion referred to. It said:

"This is because within two weeks of entering into a marriage he denied to a Departmental Officer that he was married. At the hearing before me, he stated that he never lied to the Department. As may be seen from the chronology set out earlier, throughout his period of stay in Australia, the Visa Applicant had lied, presented forged documents and changed evidence, all designed to secure permanent residence. Truth had no relevance to him. As stated earlier, it is possible that, irrespective of his lies, his commitment to the marriage could be genuine. However, there is insufficient evidence to persuade me that this was the case at the date of primary application."

20 As was put on behalf of the respondent, that summary of the reasons shows that the Tribunal was prepared to place no weight on the applicant's evidence in the light of his migration history. It was entitled to take that view. It also took into account his positive disavowal of the marriage on 5 December 1995. It was entitled to do that also. 21 It is unclear why there was insufficient evidence otherwise to persuade him that the commitment existed, having regard to the accepted evidence of Ms Asif and to the other material before the Tribunal, but that is not a matter for the Court upon this application. The evidence of bias 22 The transcript of the hearing before the Tribunal on 22 April 1999 was in evidence. Unlike the situation in Singh, there was no request to listen to the recording, nor any suggestion that the tone of voice or manner of questioning by the Tribunal was itself part of the nature of the bias alleged. The submissions were based upon the terms of the examination itself. 23 The transcript of the hearing runs into thirty-one pages, of which the course of the applicant's evidence occupied fifteen pages. After the applicant was sworn to give evidence, the Tribunal commenced to question him. Early in that process, the Tribunal explained to the applicant that it was necessary to persuade the Tribunal that he had a genuine and continuing marital relationship at the time of his application. He asked about how the applicant met Ms Asif, where they lived together after the marriage, whether there were children of the marriage, what he knew of Ms Asif's previous marriages, and such matters. No complaint is directed at that process. 24 The Tribunal then turned to the applicant's migration history. The applicant relies explicitly on that series of questions and answers. It is the main part of the examination upon which the Tribunal based its observations set out in pars 18 and 19 above. It is as follows:

"MR METLEDGE: You have got a history of fraud, deceit, lies. Very bad, according to the file. I can go through it if you wish, or do you wish to comment? Why should I believe you now when you have told so many lies in the past? How do I know that this isn't just another fraudulent step to get a visa in Australia? Because that is obviously what the Department is saying. You must have worked that one out. They are saying it is just another step; in a whole series of lies, this is just another one. Now, why should I disagree with that? MR ASIF: I didn't lie anything, sir. MR METLEDGE: You did not lie in your previous applications? MR ASIF: No sir. MR METLEDGE: You told the truth? MR ASIF: Yeah. MR METLEDGE: And do you say that on the Koran? MR ASIF: Yeah. MR METLEDGE: What about during interviews? Did you ever tell lies at interviews? MR ASIF: In my last interviews I didn't tell any lie. MR METLEDGE: At any interview did you tell any lies in the past to the Department, either in saying it or writing it? MR ASIF: Yeah, what I - was true, I told them. MR METLEDGE: You never told them lies? MR ASIF: No. MR METLEDGE: The funny thing is, I believe what you are saying now, especially regarding one interview. I will find that you did tell the truth there. That's where you said you are not married. I now believe you then. MR ASIF: Sir, whatever I tell to you, I tell you the truth. MR METLEDGE: Yes, I think your solicitor has got the crux of what I have just said. I don't think I need ask you any further questions, because you see, at one interview, which was held after you were married, after the marriage certificate, you were asked, "Are you married?" and you said, "No." So I believe you; you were telling the truth, therefore you have to lose this case. You can't win it. Because on your own words, you are not married. What do you say to that? MR ASIF: Yes sir, I am married. This is the truth, that I am married." 25 There followed a discussion between the Tribunal and the applicant's solicitor. In relation to the question "Are you married" and the answer "No" given on 5 December 1995, the Tribunal said: "Well, if I believe that, then he is not married, is he?" There was, as I was told in submissions, no dispute that the applicant was in fact married on 4 November 1995. It is, in my judgment, significant that the Tribunal's comments were directed to a matter which was not in issue, namely the fact of the marriage. The applicant's solicitor suggested the applicant might not appreciate the gist of the Tribunal's questions. The member said:

"MR METLEDGE: How does that matter? If it does, please explain it to me. I want to afford him as much procedural fairness as I can. I mean, what is there to appreciate - "Did you tell lies to the Department?" "No I did not." "Did you tell lies at any interview?" "No I did not." "Did you tell them, speaking to them or in writing?" "No." What is there to appreciate? You mean he doesn't appreciate the ramifications so perhaps he can make another lie to cover the original one? MR LEVINGSTON: That is always one alternative, Member, but it may be that if he was put the question, "On a particular date were you married?" and then asked why at the interview he didn't disclose that, that might be another way of approaching it. MR METLEDGE: Why? I asked him, "Did you tell any lies to the Department?" He said, "No." There's nothing to rationalise. I accept that. I accept he told the truth on that day. He said he did and I accept that." 26 Immediately following that exchange, the applicant volunteered that he had told a lie on 5 December 1995, and he said he would explain why he had done so. The Tribunal then said that it would note that

"after the conversation between your solicitor and I, after I had indicated to you because you told that statement before you are going to lose the case, you came up to rationalise it now. But I believe you were telling the truth then, you see … Yes, you were telling truth, that you are not married." 27 The solicitor invited the Tribunal to hear the evidence of Ms Asif. The Tribunal member asked:

"MR METLEDGE: Are you putting to me I should take further evidence in the hope that I may find that he was lying back there, that the further evidence - if you are, I will accept your submission. If you are saying to me - I mean I want to give him every chance. I know he has had a naughty history, but nevertheless I mean if he is genuine, that is for me to find he is genuine. I am not a criminal court sitting here to try and penalise him for what he has done for his sins. If you like, I can take further evidence from the wife specifically directed at changing my mind, that perhaps he was lying at that interview and that he is telling the truth today. Because he can't be telling the truth on both occasions."

28 The member then asked the solicitor if he wished further evidence to be given by the applicant. He reminded the solicitor firstly that "… more often than not … the more they speak the worse they make their case …" and that any good the wife might do may be blotted out because the applicant on two or three occasions already had changed his mind. He referred to the possibility that he may find (as he did) that Ms Asif was genuine but that the applicant was "taking her for a ride". 29 After a short adjournment, the member at the invitation of the applicant's solicitor, asked the applicant why he should believe that the relationship at 24 November 1995 was a genuine one. The applicant referred to living together with Ms Asif and her son from November 1995 in a genuine relationship, and said he had given the answers referred to on 5 December 1995 because he was scared that the Processing Entry Permit might be cancelled so that the present application (which requires that the applicant be legally in Australia when it was applied for) might "be dissolved". As the Tribunal found, that view of the effect of the Processing Entry Permit was not correct (although there may be said to have been some substance in the applicant's fear because the Migration Internal Review Officer refused the current application precisely because the applicant did not have the standing to make the application.) 30 The member responded:

"MR METLEDGE: So in other words, you are prepared to tell lies to help your case. You told lies to help you stay in Australia, and what is to stop me now from believing that you are telling me more lies now to stay in Australia? What's changed? What's changed? See, if I go through your history since '89, it is loaded, lies, deceit, fraud, bogus documents, changing of dates of birth. What's changed? To me it shows a consistent, on your part, attitude of telling lies if necessary to stay in Australia, What's changed? Why aren't you telling me lies now? Why is it any different now? That's what I want to know. You persuade me of that. What's changed? I mean, do you have two children from this lady which tie you to Australia? Have you suddenly got a conversion from God? What's changed? If you can persuade me of that, perhaps then you can win this case." and

"MR METLEDGE: What's changed? Why should I believe you? Of course you are going to tell me your relationship was genuine, otherwise you wouldn't be here. You wouldn't be silly enough. If you are going to tell me, "My relationship is not genuine," you wouldn't come here. You came to tell me it is genuine. Now tell me why I should believe you, in view of all this long history, and in the face of your own concession two weeks after the marriage, when you had an interview with the officer, you said, "I am not married." He asked you, again and again. You kept on, "No." You said, "No." No de facto, no marriage. And you said to him, "Sir, this is the truth."

32 Ms Asif then gave evidence. She was, as noted earlier, found to have been an honest witness. She confirmed the marriage on 4 November 1995. She was asked how she knew the applicant was not simply using her to stay in Australia, and responded that "he is very kind man and he is not smoking, not drinking", and he loves her son, as well as loving her. She said she was aware of his migration history, and specifically that he was fearful that the disclosure of the marriage at the interview on 5 December 1995 might put at risk his permanent residence. The member said to her that another explanation may have been his desire to get the Class 816 entry permit, and then abandon her. He said:

"Do you see, I asked him before you came in did he ever tell lies to the Department, he said "No." I said, "At interviews maybe?" "No. I always told them the truth." So if he has always told them the truth, it means at that date he didn't consider himself married to you, and if I believe he was telling the truth back then, I have no alternative but to fail him, because he out of his own mouth said, "No, I was telling the truth." Do you understand that?"

33 Ms Asif then gave evidence about their matrimonial relationship since 1995, including their joint financial arrangements, their home, their rent, their assets, and debts, and the applicant's relationship with her son. 34 At the end of her evidence, the Tribunal member in discussion with the solicitor for the applicant said:

"I think I accept that, the appearance I accept. I accept they courted, I accept they went through a marriage, I accepted that they lived together but whether there was a mutual commitment, that is the problem to a shared life to the exclusion of others. Whether this man had the necessary commitment as at that date is the weakness in this case."

35 The Tribunal member concluded by saying that he would take into consideration the evidence given at the hearing, the solicitor's observations, and the evidence on the file before giving a decision. 36 It is evident that the Tribunal member had the view that the applicant, and in practical terms only the applicant, could persuade him by acceptable evidence that the marriage relationship was a real and genuine one. His observations to the applicant's solicitor, when it was proposed to call the applicant's mother-in-law to give evidence, was that he was prepared to accept that from an outsider's point of view (i.e. that of the mother-in-law) the appearances of a genuine courtship and marriage existed. Ms Asif's evidence of their courtship was to the same general effect. However, the Tribunal member made it clear that their evidence did not go directly to the state of mind of the applicant as to whether he had a genuine commitment to the marriage. 37 The question is therefore whether the Tribunal member had prejudged the question whether the applicant had a genuine commitment to the marriage at the time the subject application was made, namely 24 November 1995. I must determine whether, as a matter of fact, he had his mind made up against the applicant on that question and was not open to persuasion to the contrary view. It is not sufficient that he may have formed a preliminary view that the applicant had entered the marriage as yet another attempt to secure a right to permanent residence in Australia. Indeed, having regard to the applicant's migration history, it is understandable that he may have formed just such a preliminary view. It is necessary that his mind was so fixed that any evidence would not, or could not, persuade him to an opposite conclusion. 38 In Singh, Lockhart J pointed out that the line between actual bias on the one hand and the firm expression of preliminary views on the other is "ill-defined" so that distinguishing to which side of the line the inquiry process falls is a difficult one. This is just such a case. As noted earlier, bias does not involve necessarily a lack of good faith on the part of the Tribunal. 39 I have carefully considered the course of the hearing on 22 April 1999. It is correct, as counsel for the respondent points out, that the Tribunal member said that he wished to give the applicant every chance and to extend procedural fairness to him. He pointed out the difficulty the applicant had in persuading him of the genuineness of his commitment to the marriage, because of his poor migration history. He invited him to persuade the Tribunal member that his evidence of his genuine commitment to the marriage was truthful. 40 However, in my judgment, the Tribunal member's conduct of the examination shows that his mind was made up whatever the applicant's evidence. The applicant was questioned about how he met Ms Asif, and about the marriage. He was then asked why that evidence should be accepted in the face of the migration history involving so many lies. When the applicant asserted that he had not told lies at previous interviews, the Tribunal member then indicated that he would believe the information given at the interview of 5 December 1995 that he was not married, so the case must be lost. He repeated that proposition in discussion with the applicant's solicitor. It is common ground that the applicant was married to Ms Asif on 4 November 1995. The emphasis in the Tribunal member's line of questioning and comments about accepting the statement made by the applicant on 5 December 1995 that he was not married as proving that fact (when plainly he was married) indicates in my view, a determination to reject the applicant's evidence as to the genuineness of the marriage come what may. I considered whether the Tribunal member may have been accepting the marriage, but using the reference to marriage as a shorthand way of referring to the applicant's commitment to the marriage, but I do not think that his words lend themselves to that interpretation. The solicitor for the applicant invited the Tribunal member to ask the applicant why he had not disclosed the marriage at the interview on 5 December 1999, but initially the Tribunal member questioned the utility of doing so because he accepted the truth of that interview, and then asserted to the applicant that he accepted the truth of his then statement that the applicant was not married. Those comments by the Tribunal member show that he was prepared to treat lies told at the interview of 5 December 1995 not simply as providing a reason now to disbelieve the applicant but also as providing positive evidence of a fact which, on all accounts, was not correct. 41 The Tribunal member then, at the request of the applicant's solicitor, did ask the applicant why he should find that the marriage was a genuine one. The applicant explained that he denied the marriage on 5 December 1995 because he was fearful that the Processing Entry Permit may be cancelled so as to remove his standing to apply for the protection visa. Ms Asif, whose evidence the Tribunal accepted, also gave evidence that at that time the applicant did have that fear and that, over her objection, he attended the interview on 5 December 1995 intending to conceal the marriage. The Tribunal did not make any findings about the genuineness of that fear, to which the applicant deposed and did not refer to Ms Asif's evidence corroborating it. The two forceful passages referred to in par 30 above also tend to support the conclusion to which I have come. It might be asked what evidence could persuade the Tribunal member, in the face of the forceful questions. The applicant had explained why he denied the marriage at the interview on 5 December 1995, and Ms Asif's evidence on the topic at least rebutted any inference that that explanation was of recent origin. Ms Asif's evidence presented a picture of a period of some months' courtship, and a normal marital relationship immediately following the marriage. His evidence of her commitment to the marriage was accepted. The applicant's evidence as to his commitment to the marriage was not accepted, but I conclude from the matters to which I have referred that the Tribunal member was not to be persuaded of that commitment come what may. 42 I have reached the conclusion that the Tribunal did have a closed mind as to whether the applicant's commitment to the marriage of 4 November 1995 was, at 24 November 1995, a genuine one. Accordingly I conclude that the decision of the Tribunal should be set aside. I so order. The application is remitted to the Tribunal for rehearing before the Tribunal differently constituted. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 29 October 1999 Counsel for the Applicant: Mr C Levingston

Solicitors for the Applicant: Christopher Levingston & Associates

Solicitors for the Respondent: Australian Government Solicitor