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[2005] FCA 1461
Federal Court of Australia
2005-10-17
Finn J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant in this judicial review proceeding impugns the decision of the Migration Review Tribunal ("the Tribunal") to cancel her Partner (Residence) (Class BS) Subclass 801 (Spouse) Visa on the ground of reasonable apprehension of bias. Though other grounds of challenge were earlier raised, these have now been abandoned and I would note in particular that a claim based on non-compliance with s 359A of the Migration Act 1958 (Cth) was one of these. The bias claim is without foundation.
BACKGROUND 2 The applicant, a Fijian national, arrived in Australia in January 1988 and has lived here for 17 years. She originally entered Australia on a student visa which was valid for six months. She failed to leave Australia upon its expiry and in 1996 applied for and was granted a Partner (Temporary) (Class UK) visa. This visa was granted on the basis of her spousal relationship with an Australian citizen who was born in Fiji. Of note, the applicant was not granted the visa until 2001, five years after her application was lodged. 3 In 2002 the Department of Immigration ("the Department") directed the applicant to lodge a further application for a permanent spouse visa and a fresh sponsorship and supporting documents were duly lodged. Amongst the material provided were statutory declarations from both the applicant and her husband attesting to their ongoing marriage over the preceding seven years. Two witnesses also attested to the genuineness of their relationship. On this information, the Department was apparently satisfied of the continuing relationship between the couple and the permanent visa was granted. 4 Following the grant of the visa, the Department came into possession of information that indicated the applicant had in fact divorced her husband and sponsored a Fijian national for a partner visa. Amongst that material were copies of a conversation with an officer from the High Commission in Suva that stated the applicant had separated from her husband in 1999; a copy of a divorce application lodged by the applicant in the Federal Magistrates Court in 2003 stating a separation since 2002; and a copy of a letter from her husband dated 8 June 2004 stating that the couple had been separated since May 2000. I will call this the Folio 122 letter. The husband also claimed in that letter that he had not signed any statutory declaration after 2000 in support of the applicant's visa application. 5 The Department issued the applicant with a Notice of Intention to Consider Cancellation on the grounds that she had not complied with s 101 and s 103 of the Act. These sections require visa applications to be correct and bogus documents not to be given. In response, the applicant claimed that her husband was a violent and abusive man. She stated that he had beaten her in 2002, and she had moved out at this time. She also claimed that he had agreed to continue to assist her in gaining a visa. 6 On 10 August 2004 the delegate proceeded to cancel the applicant's subclass 801 visa on the grounds that the review applicant had provided incorrect information and bogus documents to the Department. It considered that Mr and Mrs Lal had separated prior to her lodging an application. 7 An application for review having been made to the Tribunal, the Tribunal confirmed the delegate's decision although only on the ground that the applicant had provided incorrect information: see ss 101, 107 and 109 of the Migration Act 1958 (Cth). Significantly for present purposes, the Tribunal acknowledged the possibility that the applicant's husband may in fact have signed the allegedly bogus statutory declaration (contrary to his assertion in the Folio 122 letter) and that they were acting collusively at that time to mislead the Department of Immigration. 8 In its reasons, the Tribunal indicated that it had had regard to the documents contained in the Department's file. One such document was a further letter from the applicant's husband to the department, also dated 8 June 2004. I will call this the Folio 120 letter. The applicant's apprehended bias case is founded on the Tribunal's having read this letter. It stated: "Dear Yvonne, Thanks for following up the matter. We (Jyoti Mala Gounder, at work known as Jackie, and Vijender lal) got separated in May 2000 (a year ahead of what's mentioned in the letter sent previously as I just remembered that we were not together around Sydney Olympics), and I wasn't aware whether she had her residence or not, at that stage. Jackie did stay in the same Unit for around another year after our separation (and we didn't have any sort of relationship), from mid 2001 she started to stay somewhere else but didn't take all her things from the Unit and was still paying half the rent until she moved out completely in June last year and posted the key to me, and while I was doing the clean up after her departure I found the letter ref. NoCLF2001/021724. She did come to the Unit in between (mid 2001 - mid 2003) when I wasn't home, me being made aware upon receiving telephone bills used by her (and she taking the bill statements from the Unit and paying it and thus keeping all the statements for that time as to show proof when needed that she still lived in that Unit). The Unit Lease and Electricity are still under both names, I have transferred the telephone in my name only and am in the process of doing the same for electricity and the Unit. Also she was doing paid work when she was not eligible to do any work. She was never unemployed since I knew her. I can provide names of organisations (upon request and if kept confidential) when and where she worked when she wasn't eligible and where she is working currently (which will be pointless as she has the visa now). I hope some action will be taken in your convenient time. Thanks. Vijen." 9 What is extraordinary about this letter is not its contents but the fact that the Minister considered it appropriate to certify under s 376 of the Act that its disclosure (to quote s 376(1)(a)(i) in part): "would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed." 10 The certificate is not before the Court. The letter was not disclosed to the applicant by the Tribunal although it was produced for the purposes of this proceeding. 11 The reasons given by the Tribunal for its conclusion that the visa had properly been cancelled are encapsulated in the following passages of its Reasons: "42. In the Tribunal's view, a breach of section 101 of the Act has occurred in this matter. The review applicant now claims that she believes that she was in a continuing relationship with Mr Lal until about December 2002, shortly after making the relevant application for a permanent visa on 22 October 2002. The Tribunal does not accept that she is truthful in regard to this belief. 43. It is evident that the review applicant has in a variety of forums made various claims as to the end of her relationship with Mr Lal which she believes would be to her benefit. Before the Family Court she has claimed an end to the relationship in May 2002, while in an application associated with another person she claimed an even earlier end to the relationship. She alternatively claimed in October 2002 that her relationship continued to that point for the purpose of being granted a permanent visa in Australia. In the Tribunal's view, her current belief as to the end of the relationship being December 2002 is not reliable as she is only claiming this so that her visa would not now be subject to cancellation. 44. A review of the evidence available as to the spousal relationship satisfies the Tribunal that it had ended prior to 22 October 2002. By that point the review applicant's former husband had for a considerable time been telling people that the parties were separated. While she claims that she would not have been able to access relevant utility bills and photographs had the relationship ended, it does appear that the parties may have shared accommodation for some time after the relationship ended which would have permitted this to occur. Furthermore, the evidence is that by that time he had been having consistent telephone contact with someone in New Zealand and the review applicant believed that he was intending to sponsor that person. In the Tribunal's view, the review applicant was aware when making representations in the application made on 22 October 2002 that she was no longer the spouse of the Mr Lal. The representations in her own declaration of 27 September 2002 that she remained the spouse of Mr Lal was not true. By virtue of section 99 this information given in connection with the application of 22 October 2002 is taken to be an answer and it was incorrect in breach of section 101. This forms a basis for the possible cancellation of the visa granted to the review applicant. … 46. In respect of whether the review applicant's visa should be cancelled it is the Tribunal's view having regard to all relevant factors that it should be so cancelled. 47. If the correct information were known, that the review applicant was no longer the spouse of Mr Lal in October 2002 … it is likely the review applicant would not have been granted the permanent visa. … 48. In the Tribunal's view, the review applicant knowingly made the false claim that the relationship continued until October 2002 to ensure that she was granted a permanent visa and without regard to the truth of those statement or the migration law at that time. Furthermore, it is clear that she has since that time continued to provide probably false and misleading information to the Department and the Family Court in order to facilitate an early divorce and attempt to secure further entry of another person to Australia. While it may be that some representations she has made as to the end of the relationship have been true, it is clear that she has been prepared to put forward whatever date was most convenient to her needs at the time, varying between December 1999, May 2002 and December 2002. She is not, in the Tribunal's view, a truthful person and has shown a propensity to be prepared to lie and mislead Australian authorities to achieve a result she believes is in her interest. While the initial deception was some two and one half years ago, she has continued to be misleading in her claims even up to the point of the hearing in the Tribunal's view."
THE BIAS ALLEGATION 12 There is no disagreement between the parties as to the principles to be applied where apprehended bias is alleged. They have recently been summarised usefully by Lander J in Applicant A165 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 877. His Honour observed (at [65], [67]): "Unlike the test for actual bias, the question for apprehended bias is an objective one; whether a reasonable bystander (or fair minded lay observer) might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question which the decision maker is required to decide: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488. … The question for determination when considering apprehended bias is not the state of mind of the decision maker, but the state of mind of a reasonable bystander properly informed: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7]. In Webb v The Queen (1994) 181 CLR 41 at 74, Deane J identified four separate, but overlapping, categories which might give rise to apprehended bias; interest, conduct, association and extraneous information." 13 As best I can understand the case put on behalf of the applicant, it is claimed that the undisclosed Folio 120 letter was highly prejudicial and that a fair minded lay observer might reasonably apprehend that the Tribunal member accepted that its contents were true. 14 Counsel for the applicant, Mr Clisby, referred both to par 44 of the Tribunal's Reasons quoted above and to passages in the transcript which he suggested showed that the Tribunal "had read and absorbed Folio 120". When tested he was unable to show that the matters to which he referred were not before the Tribunal from other sources, most usually from the applicant's own evidence. 15 It is clear there is nothing in the text of the Tribunal's reasons which betrays that the Tribunal made any use of the Folio 120 letter or that it provided any part of the reason for its decision. All of the material relied upon had other sources. It is equally clear from the reasons that the Tribunal did not accept the husband's credibility - hence its comment on whether his alleged 2002 statutory declaration was bogus. Yet it was in both Folios 120 and 122 that he asserted he did not make that declaration. In light of this, there is no basis upon which a reasonable bystander could conclude that the Tribunal might have accepted that the contents of Folio 120 were true. 16 I am satisfied from its reasons that the Tribunal was sensitive to the potential for both cooperation and animosity between the applicant and her husband. Its approach to the evidence and the findings it was prepared to make were appropriately circumspect. In all the circumstances there is nothing revealed that could reasonably found a claim of apprehended bias. There is much that sustains the conclusion at which the Tribunal arrived. 17 The application must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Solicitor for the Applicant: Walkerville Chambers
Solicitor for the Respondent: Australian Government Solicitors
Lal
Minister for Immigration & Multicultural & Indigenous Affairs
(1976) 136 CLR 248
(1980) 55 ALJR 12
(1983) 151 CLR 288
(1989) 167 CLR 568
(1994) 181 CLR 41
(2000) 201 CLR 488
(2000) 205 CLR 337