Lee v Minister for Immigration and Citizenship [2025] FedCFamC2G 2099

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. The sole issue in this application under s 476 of the Migration Act 1958 (Cth) (Act) - and it is a narrow one - is whether there was a reasonable apprehension of bias due to prejudgment by the Administrative Appeals Tribunal (Tribunal). For the reasons which follow, I consider the claim, which must be firmly established, instead has not been made out, so that the application must be dismissed with costs.

1. The Act provides a regime permitting but not requiring visa cancellation where the visa application involved incorrect answers. Section 101 of the Act provides that:

A non-citizen must fill in or complete his ... application form in such a way that:

...

(b) no incorrect answers are given or provided.

If the Minister considers that the holder of a visa who has been immigration cleared ... did not comply with section 101 ... the Minister may give the holder a notice ...

in effect, to show cause why the visa should not be cancelled. The response must be considered: see s 108. Section 109 then provides:

(1) The Minister, after:

(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c) having regard to any prescribed circumstances;

1. Regulation 2.41 of the Migration Regulations 1994 (Cth) provides:

For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

...

(d) the circumstances in which the non-compliance occurred;

...

1. Thus the statutory regime requires consideration on the merits, first by the Minister's delegate and next by the Tribunal, of the circumstances in which incorrect answers were provided.
2. In this matter, the evidence is that the applicant had held a variety of visas, notice was given in May 2022 of suspected non-compliance with s 101(b) of the Act and that a response was requested of him. The applicant then responded, the Minister took into account that response and the visa was cancelled on 1 August 2022 by a delegate of the Minister on the basis that the applicant did not comply with s 101(b) of the Act. The matter then proceeded to the Tribunal, which conducted a hearing in February 2023 at which the applicant appeared and gave evidence. The delegate's decision to cancel the visa was affirmed, and an application was made to this Court to set aside the decision on the following single ground:
   1. At [43] of the decision record, the Tribunal acted unfairly when it used the applicant's previous false material to assess his testimony at the Tribunal hearing. The Tribunal concluded the Applicant is not a person of credibility when he spoke at the Tribunal. The conclusion was based on events which took place before the Tribunal hearing. The conclusion shows the Tribunal had an adverse opinion of the applicant's credibility before the hearing. The way that conclusion was made raises an apprehension of bias against the applicant and his credibility at the outset of the hearing.
   2. The apprehended bias was material to the decision. As a matter of reasonable conjecture, without that error the Tribunal could have made a different decision.
3. Before coming to the asserted apprehension contained in paragraph 43, the following aspects of the Tribunal's decision must be noticed. The Tribunal considered the relevant statutory scheme, as set out above, and then, at paragraphs 7 to 25, considered the question:

Was there non-compliance as described in the s 107 notice?

At [21], the Tribunal states:

In his response to the NOICC [Notice of Intention to Consider Cancellation] and evidence to the Tribunal the applicant concedes that he had previously travelled to Australia under different names and had made other visa applications in Australia.

The Tribunal then noted that:

1. Having regard to the applicant's own evidence, as well as the results of the Facial Comparison reports and the information summarised above, the Tribunal finds that the applicant had been known by other names, that he had previously travelled to Australia on multiple occasions using different identities, that he did have a debt to the Commonwealth and also a conviction in Australia. The Tribunal finds that the applicant completed the application forms (referred to above) in the way that incorrect answers were given or provided, when he claimed that

a. he had not previously travelled to Australia

b. he never held Bridging E visas

c. he had not been known by any other name

d. he had no debt to any Australian authority

e. that he lived in Korea between 1990 and 2005

f. he had no criminal convictions.

1. The Tribunal finds that the applicant completed the application form in the way that incorrect answers were given or provided. The Tribunal finds the applicant did not comply with s.101 of the Act.

...

1. For these reasons, the Tribunal finds that there was non-compliance with s. 101 by the applicant in the way described in the s 107 notice.

1. The Tribunal, having found non-compliance with s 101, proceeded to the question of whether the visa should be cancelled. Relevantly, it considered whether the decision to grant a visa was based wholly or partly on incorrect information or a bogus document:
   1. In his submission to the Tribunal of 16 February 2023 the applicant concedes that the information he gave was false in relation to his character (when he claimed he had not been removed, deported or excluded from Australia) and debt to the Commonwealth. The applicant concedes that he previously had a visa cancelled due to a breach of a no-work condition and had been subject to exclusion periods.
   2. The Tribunal is mindful that the applicant was able to obtain visas while subject to an exclusion period because he failed to declare his previous visit to Australia and stay as an unlawful non-citizen. If the applicant's previous residence in Australia and his stay as an unlawful non-citizen was known, it is possible that the applicant's Visitor visas would not have been granted.
   3. The applicant submits in his statement to the Tribunal that there were no incorrect answers in relation to the grant of the RRV. The information in the primary decision record indicates that the applicant did provide an incorrect answer in the application for the RRV as he claimed he had no outstanding debts to the Commonwealth. Further, the Tribunal notes that the NOICC relates to the grant of the earlier visas, as envisaged by s.107A of the Act.
   4. The Tribunal finds that the decisions to grant the applicant various were based, in part, on incorrect information.
2. The Tribunal then considered the prescribed circumstance in reg 2.41(d), namely, "the circumstances in which the non-compliance occurred". It is appropriate to set out paragraphs 35 to 44 in full:
   1. In his response to the NOICC and evidence to the Tribunal the applicant explained that he was facing persecution in Korea and could not find employment. He heard that Australia was a good country, so he decided to travel to Australia using his birth name. After arriving in Australia he met a migration agent though a classmate, who promised to obtain a work visa for him and deceived him. The applicant states this person reported him to Immigration for working unlawfully and he was deported to Korea.
   2. The applicant states that he wanted to revenge the agent for deceiving him, so he returned to Australia using his cousin's passport. The applicant states that he had to pay money to another person to have his passport reissued under a different name (which was correct name but with a different spelling). The applicant claims that he was repeatedly deceived by his agent, but he trusted the agent and did not know any other way to solve his problems and did not think the agent was working illegally.
   3. In his submission to the Tribunal the applicant also states that in 2002-03 a friend recommended that he should seek a work visa to stay lawfully and referred him to another person. The applicant states that he trusted that person and was vulnerable after a difficult history in South Korea. The (unlicensed) agent deceived the applicant and took a large fee but did not make a proper application and applied for another visa, rather than a work visa. The applicant concedes that he was working unlawfully and was twice subject to an exclusion period. In his submission to the Tribunal the applicant concedes his fault and states that he was vulnerable and exploited for financial gain.
   4. The applicant states that after returning to Korea in 2004 he did not consider travelling to Australia but a friend told him there was a shortage of welders in Australia and he accepted the offer and came to Australia, having previously changed his name through the court system. He then met his wife and married in 2007.
   5. The applicant states that he was deceived by those who sold him the car but did not transfer the registration (resulting in the charges). The applicant states that he was unaware of the impending court hearing when he left Australia. He also told the Tribunal that he was unaware of having a debt to the Commonwealth.
   6. In oral evidence the applicant submits that he did these things because of his ignorance of the Australian immigration laws and because he was in desperate circumstances at the time. He refers to his responsibilities to support his family, stating that Australian was his only hope. He refers to having no English, living in the Korean community and being reliant on the advice of others. His daughter's oral evidence to the Tribunal is that the applicant had been persecuted by the authorities and Korea and could not find a job and the family had significant financial hardship.
   7. The Tribunal finds many of the applicant's explanations unconvincing. The applicant seems to suggest that his past conduct was entirely due to being misled by the agent. The Tribunal does not accept that is the case. The applicant's evidence is that the agent had misled him during his first entry to Australia and failed to apply for the work visa as promised. Yet the applicant also states that he had repeatedly approached that agent seeking other visas and other services. In the Tribunal's view, if the applicant was genuinely upset about being misled by the agent upon his first entry to Australia, or if he genuinely believed the agent was not acting in the applicant's interests and was being unscrupulous, he would not repeatedly approach the agent and rely on that agent to resolve his visa issues. The applicant's willingness to repeatedly rely on that agent suggests to the Tribunal that the applicant intentionally sought to approach a person he knew was unscrupulous and able to make untruthful claims in visa applications in order to extend the applicant's stay in Australia.
   8. Further, the applicant concedes that he used his cousin's passport to enter Australia. He also states that he paid money to another person to change the spelling of his name in the passport. That is, the applicant took active steps to falsify his records in order to be able to return to Australia, knowing, and having been expressly informed, that he could not have travelled to Australia within the exclusion period, if he provided truthful information about his identity. In the Tribunal's view, such conduct can hardly be blamed on the agent. Whatever advice the applicant received from the agent, it must have been obvious to him that the use of a fraudulent passport and a false name to enter another country is against the law. The applicant was fully aware that he was acting unlawfully by using false identities to enter the country. The applicant's willingness to do so suggests that he had intentionally breached the laws and that he was willing to do anything in order to travel to, and remain in, Australia.
   9. Significantly, the issue here is the applicant's failure to mention these events in his various visa applications, not the circumstances of the applicant's past entries to Australia. Even if the applicant's evidence is accepted in its entirety, it does not explain his failure to mention his immigration history in the various applications he made since 2005. Notably, the more recent RRV applications and the application for the Australian citizenship were made recently and the applicant - who by that time had been living in Australia for several years and may have been more familiar with the Australian laws - continued to provide false information in his dealings with the Department. The applicant's persistent desire to mislead Immigration and to withhold information about his immigration history indicates, in the Tribunal's view, that the applicant is not a person of credibility. It also suggests to the Tribunal that the breach was deliberate and the applicant had the intention to mislead and to withhold information from the Department so as not to jeopardise the grant of his visas.
   10. The applicant told the Tribunal that after living in Australia, he was scared that if he disclosed the correct information, his visa may not be approved. In the Tribunal's view, the applicant's desire to remain in Australia and to retain his visa was the real reason for the noncompliance with s. 101, rather than his claimed lack of English, lack of understanding and reliance on the agent and others. [emphasis added]
3. The Tribunal went on to consider other prescribed circumstances before concluding at [71] that there had been a failure to comply with s 101 of the Act, and thereafter provided these grounds for cancelling the visa:
   1. The Tribunal has considered the totality of the applicant's circumstances. The Tribunal has found that the applicant failed to comply with s. 101 of the Act and that there are grounds for cancelling his visa.

...

1. The Tribunal has formed the view that there are several factors that weigh in favour of the cancellation. Most significantly, the Tribunal places weight on the circumstances in which the non-compliance occurred. The applicant gave several reasons why he chose to travel to Australia and to return to Australia. While the Tribunal found these explanations unconvincing, and not necessarily truthful, the Tribunal's concern is not with the applicant's immigration history but his non-compliance with s. 101 of the Act. The applicant concedes in his evidence to the Tribunal that he did not provide truthful answers in his various visa applications because he was afraid the visas would not be granted. That is, the breaches occurred not because the applicant was fearful of persecution in Korea, or faced financial hardship or was ignorant of the law and misled by others. The breaches occurred because the applicant wanted to remain in Australia and decided that being untruthful and not disclosing his immigration history was the best way to ensure his visas were granted.
2. The Tribunal notes that the breaches were multiple, relating to the Work visa he applied for in 2005, the Partner visa application in 2007 and the two RRV applications made in 2015 and 2019 respectively. In all these applications the applicant was consistent in his dishonesty. It is notable that this conduct took place over a nearly fifteen year period and the more recent breaches occurred a fairly short time ago.
3. There are other instances of non-compliance as the Tribunal has formed the view that the applicant had in the past presented bogus documents (passports) with his applications. He also has a criminal conviction, which he also failed to declare (believing it was 'unfair').
4. The Tribunal also places some weight on the fact that the decision to grant the applicant the various visas was based, in part, in incorrect information. The applicant's 2005 visitor visa was based on the fact that the applicant had not previously travelled to Australia (and that he was not subject to an exclusion period). In the subsequent visa applications the delegates were denied the opportunity to assess the applicant's character, the special return criteria and PIC 4004 because the applicant did not disclose relevant information. These factors weigh heavily in favour of the cancellation and, in the Tribunal's view, outweigh other considerations.

1. The sole sentence in paragraph 43 of the Tribunal's reasons upon which the applicant relies to make out a reasonable apprehension of bias is this:

The applicant's persistent desire to mislead Immigration and to withhold information about his immigration history indicates, in the Tribunal's view, that the applicant is not a person of credibility.

1. The application to this Court complains that the Tribunal relied on the circumstances of his non-compliance with s 101 to deny the applicant's credibility thus:

The circumstances under consideration all took place before the Tribunal's hearing. The process of reasoning followed suggests that the Tribunal had closed its mind to the Applicant's oral evidence and was not open to persuasion.

1. The test for bias by way of prejudgment is as set out by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 as follows (citations omitted):

[71] ... Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

[72] ... The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected.

1. As Neskovcin J recently said in Molla v Minister for Immigration and Multicultural Affairs [2025] FCA 1292:

[36] For apprehended bias through pre-judgment, what must be firmly established is that a reasonable bystander might apprehend that the Tribunal's mind was not open to persuasion, not that the Tribunal member will decide the case adversely to one party: Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 at 352 (Mason J); Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 at 100 (Gaudron and McHugh JJ), cited with approval in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [45] (French CJ); Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [71]-[72] (Gleeson CJ and Gummow J); Dennis v Commonwealth Bank of Australia (2019) 272 FCR 343; [2019] FCAFC 231 at [32] (Greenwood, Besanko and Reeves JJ).

1. Determining apprehension of bias is a three-step process viewed from the point of view of a hypothetical fair-minded lay observer who is assumed to know and understand both the nature of the proceeding, and the material objective facts that relate to the processes undertaken by the decision maker. The test involves:

(a) identification of the facts or circumstances which it is said might have led the first defendant to decide the issues before it other than on their merits.

(b) demonstration of a logical connection between that fact and the circumstances and the apprehended deviation from the course of determining the issues.

(c) the assessment of the reasonableness of that apprehension from the perspective of the fair-minded lay observer.

1. The applicant submits that the three-part test, alleging prejudgment, is engaged as follows:
   1. First, the Tribunal has relied on the given facts and circumstances of non-compliance with Section 101 to make a finding of adverse credit in respect of the Applicant.
   2. Second, the Applicant's credibility as a witness at the hearing was a material consideration for the exercise of the discretion. The adverse credit attached to the Applicant's earlier conduct could cause the Tribunal to deviate from assessing his credibility at the hearing.
   3. Third, a fair-minding lay observer could reasonably consider that the Tribunal had determined the issue of the Applicant's credibility prior to him giving oral evidence at the hearing.
2. The allegation of apprehension of bias before the Tribunal must be rejected for the following reasons.
3. First, the hypothetical fair-minded lay observer must be taken to know that the nature of the proceeding before the Tribunal was to decide whether there had been a breach of s 101 such that there was non-compliance by the holder of the visa. The Tribunal was then to consider the response to the notice and any other prescribed circumstances, including the circumstances in which the non-compliance occurred.
4. This lay observer would know that the Tribunal needed to take into account not only what had happened in the past (that is, the alleged incorrect answers which gave rise to a finding of non-compliance), but also what the applicant said at the hearing, to the extent that this was relevant to understanding and making findings concerning the nature of the non-compliance.
5. There is nothing in the impugned paragraph 43 or otherwise which indicates the Tribunal has not taken into account and made findings of fact based on all of the evidence, whether or not such evidence predated the hearing (for example, the evidence about the incorrect statements, including the response by the applicant to the notice from the Minister and what the applicant chose to say or to concede before the Tribunal). There is nothing which indicates the Tribunal was at the commencement of the hearing "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented."
6. As the Minister correctly points out, this was not a case in which the applicant entirely denied non-compliance, but rather admitted much of it and concentrated on persuading the Tribunal that it should not exercise its discretion to cancel the visa in those circumstances.
7. It was, of course, a matter for the Tribunal to determine whether those explanations as to the circumstances of non-compliance were convincing and it was generally not convinced. Hence the finding in paragraph 42, for example, that, notwithstanding the applicant's attempt to blame his agent:

... it must have been obvious to him that the use of a fraudulent passport and a false name to enter another country is against the law.

1. At [43], the Tribunal considered the applicant's failure to mention the falsification of records, the entering of Australia under a false passport, and use of a false name in various visa applications he had made. The Tribunal's overall finding was that even if the applicant's evidence was accepted in its entirety, the non-compliance was not explained. Part of that lack of explanation was that the applicant:

... continued to provide false information in his dealings with the Department.

This was a finding which was plainly open to the Tribunal and with which the applicant does not cavil.

1. The Tribunal then proceeded, having made those findings, to reason that there was a:

... persistent desire to mislead Immigration and to withhold information ...

1. It does not matter in this Court whether that was a finding that the applicant was not a credible witness, which is the applicant's contention, or, as the Minister determined, based on the applicant's persistent desire to mislead, that he was not a person of credibility more generally.
2. The Minister correctly points out that this is not a case where the concerns about the applicant's credibility meant the Tribunal gave the applicant's evidence no weight at all, a matter which may be contrasted with the findings of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [49] per McHugh and Gummow JJ:

In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

1. Rather, as the Minister correctly submits, the Tribunal did accept some of the evidence given by the applicant about the circumstances of his non-compliance, but equally found some of that evidence unconvincing and did not accept it. That was well within the Tribunal's discretion and, importantly, it is a further indication that the Tribunal was not closing its mind to the evidence that the applicant ultimately gave.
2. Paragraph 77 of the decision also indicates that the Tribunal did not come to a final conclusion about the applicant's evidence until after it had considered the totality of the evidence, including the applicant's explanations in oral evidence, as well as in other submissions. There was simply no predisposition. No facts or circumstances which might have led the Tribunal to decide the issues before it other than on their merits have been established. That being so, the relevant three-part test fails at every level, and bias has not been established.
3. In those circumstances, the application is dismissed, and costs must follow the event. In my discretion, I award costs of $6,000.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.