Veliu v Minister for Immigration and Border Protection

The grounds of review 4 By his amended originating application, the applicant raises three grounds: 1. The decision of the Second Respondent dated 11 August 2017 was infected by apprehended bias. 2. The First Respondent (sic) fell into legal error by failing to give sufficient weight to Mr Adil Veliu (the visa applicant)'s present conduct as evidence of his good character. 3. The First Respondent (sic) fell into legal error by not applying the correct standard with respect to the likelihood of the risk of repeat conduct on the part of the visa Applicant. The relevant test is an "acceptable risk." Leave not being opposed, I grant leave to the applicant to rely on his amended originating application.

Evidence 5 The first matter is to consider the admissibility of the evidence sought to be read. 6 The applicant seeks to rely on three affidavits sworn by her solicitor, Mr Christopher Levingston. 7 The first affidavit is dated 29 August 2017 and is uncontroversial, annexing the reasons of the Tribunal. There was no objection to that affidavit. I take that affidavit as read. 8 The second affidavit is dated 16 January 2018 and annexes an article from http:www.examiner.com.au referring amongst other things to the previous positions held by the Tribunal member who made the 11 August 2017 decision (the Tribunal member). It appears from that material that the Tribunal member was a member of the Liberal Party and a former member of the House of Representatives and before that had a career in the Australian Army and as a senior public servant in the Department of Defence from 2006. There was no objection to that affidavit. I take that affidavit as read. 9 The third affidavit is dated 24 January 2018 and annexes two newspaper articles, one from the Huffington Post apparently published in the first half of 2017 and one from the Guardian also apparently published in the first half of 2017, in each case before the date of the hearing in the Tribunal on 20 June 2017. This material refers to comments said to be made by the Minister for Immigration and Border Protection, the Honourable Peter Dutton MP, about the Tribunal and its decisions in immigration matters. This affidavit also annexes an extract from Wikipedia apparently giving details of the Tribunal member's early years, military career, political career, family and publications. There was no objection to that affidavit. I take that affidavit as read. 10 The second and third affidavits were read as going to what the fair-minded lay observer would or may be aware of.

Submissions 11 The applicant submits that the Tribunal's decision "was infected by apprehended bias by reason of the facts and circumstances surrounding the appointment of Senior AAT Member Andrew Nikolic and the conduct of the Hon Peter Dutton MP, Minister for Home Affairs." 12 The applicant's submission is that a reasonable person apprised of the Minister's comments might reasonably suppose that a Tribunal member, a former Federal Liberal Member of Parliament, appointed "by a Federal Liberal Attorney General", might be influenced by the Minister's attitude towards those members of the Tribunal who overturn his Department's decisions. 13 The submission continues that the Tribunal member has heard nine "character" cases and has set aside the decision in only one of those cases. 14 The applicant submits that a fair-minded lay observer, being apprised of the public commentary regarding the Minister's comments about his dissatisfaction with the Tribunal, coupled with the close political affiliations of the Tribunal member and the circumstances of his appointment, might reasonably apprehend that the Tribunal member might not bring an impartial and unprejudiced mind to the resolution of the question he is required to decide. 15 The Minister submits that the applicant had not established that a fair-minded lay observer might reasonably expect that the Tribunal member might not bring an open and impartial mind to the determination of the matter. In any event, the right to object on the basis of apprehended bias was waived by the applicant and could not now present a ground for invalidating the Tribunal's decision. 16 The Minister submits that the applicant had not articulated a logical connection between the claimed "association" and the feared deviation from impartial decision-making on the legal and factual merits. The applicant's case rose no higher than "bare assertion" that there was a disqualifying interest or association. This supplied no satisfactory foundation upon which the reasonableness of the asserted apprehension of bias could be assessed. 17 The applicant had pointed to nothing in the way of probative evidence that would suffice to establish an apprehension of any particular predisposition on the part of the Tribunal member. 18 Further, that a decision-maker may have particular predispositions or tendencies of mind was insufficient to establish bias because it did not establish that the decision-maker was not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [71] and [186]. 19 The Minister submits that the list of the Tribunal member's prior decisions, or of some of them, could not assist the applicant for the reasons given by the Full Court in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [38], [39] and [41]-[43]. 20 The Minister also submits that the matters on which the applicant now relies were in the public domain by the time of the Tribunal hearing on 20 June 2017 and Mr Veliu had waived his right to object on the basis of apprehended bias, being aware of the circumstances giving rise to the right yet continuing to allow the matter to continue for a sufficient time to show that he did not presently intend to exercise that right. The rationale for the principle was to prevent the unfairness that might eventuate if a party were given an option to accept or reject the judgment or decision.

Analysis 21 I reject as evidence the statements in the applicant's submissions as to earlier decisions of the Tribunal member and I do so for the following reasons given by the Full Court in ALA15 at [38]-[39] and [41]-[43] in respect of an affidavit: There are several reasons why these contentions must be rejected and why the Minister's objection to Mr Kline's affidavit should be upheld (as it was also below). The first is that, for such raw statistical material to be attributed to the hypothetical observer, it normally would need to be accompanied by a relevant analysis of the individual immigration judgments determined by the primary judge in order that the statistics were placed in a proper context. Absent such analysis, the hypothetical observer would not be able to make an informed assessment of the significance of the raw statistics. It may be, for example, that a close analysis of some, many, or all of the relevant judgments reveal that they had been determined on a reasonable and plausible basis. And, even if some or all of the judgments were wrongly decided, that may be the consequence of human frailty on the part of the judge and not prejudgment, a consideration which a fair-minded lay observer would take into account. Secondly, and contrary to the applicant's submission, raw statistics concerning the outcome of immigration matters which have been determined by the primary judge compared with other FCCA judges or the outcome of MRT-RRT decisions generally does not necessarily indicate prejudgment. As Gleeson CJ and Gummow J observed in Jia Legeng at [71], the fact that 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. … Fourthly, we accept the Minister's submission that the mere fact that a particular judge has decided a number of cases, the facts and circumstances of which are unknown, one way rather than another, does not go any way to assisting the hypothetical observer making an informed assessment as to whether that judge might not bring an impartial and unprejudiced mind to the resolution of the question in a particular proceeding before that judge. As Heerey J observed at [26] and [33] in Vietnam Veterans' Association of Australia (New South Wales Branch Inc) v Gallagher [1994] FCA 489; (1994) 52 FCR 34 (Vietnam Veterans' case) (in rejecting as irrelevant statistical evidence which purported to show that a particular decision-maker was more likely to decide against applicants than other decision-makers): All such evidence could show is that, because a decision-maker has decided a particular kind of case in a particular way in the past, he or she is likely to decide a case of the same nature in the same way in the future. Even if that be accepted as a conclusion of fact, it does not make out a case of apparent bias. The law is not so ignorant or disdainful of human nature as to assume that judges or quasi-judicial decision-makers are automatons. It may well be that, for example, it can be predicted from past experience that judge A is more likely to impose a prison term for a particular crime than judge B, or that judge C will award greater damages for the same sort of injury than judge D. It is for this very reason that the listing of cases is a jealously guarded element of any system of justice … … For the foregoing reasons I do not think the statistical evidence proffered has any probative effect as to the correctness or otherwise of decisions of panels over which Mr Marsh presided. But there is the further fundamental obstacle that, even if incorrectness be proved in respect of such decisions, and shown to exist at a higher level compared with the decisions of panels without Mr Marsh, that does not establish a circumstance which might give rise to a reasonable apprehension of bias. All court systems and many administrative decision-making systems provide for appeals. As part of such appeal processes, decisions are routinely set aside for errors of fact or law. But in the vast majority of such cases there is no suggestion of apparent bias. 22 The status of the material is not improved by being contained in a submission rather than in an affidavit. 23 Most importantly, the allegation of apprehended bias has not been "distinctly made and clearly proved." The basis of the allegation is unclear and in my opinion does not begin to establish that the Tribunal member would not decide an application, or this application, on its merits. It is unclear what the relationship is said to be between past or present party political affiliation, the statements of the Minister and making the correct or (here) preferable decision in this, or another, particular case. This is not to say that procedural fairness requires the absence of any predisposition or inclination for or against an argument or conclusion: Jia Legeng at [72]. 24 In my opinion there has not been an identification of what might lead the Tribunal member to decide an application other than on its merits and there has not been an articulation of the logical connection between that and the feared deviation from deciding a case, or this case, on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [53]. It is a significant part of the circumstances that would be known to the fair-minded lay observer that under s 499 of the Migration Act the then Minister for Immigration and Border Protection made Ministerial Direction No 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA dated 22 December 2014 (the Direction): see Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [13]. Section 499(2A) mandates that the Tribunal must comply with the Direction. The guidance in that Direction would also be known to the hypothetical reasonable bystander. 25 Next, and in the alternative, in my opinion the Minister's submission as to waiver is well-founded. There is no evidence suggesting that an application was made to the Tribunal that the Tribunal member should recuse himself. The basis of the present application being available at the time of the hearing in the Tribunal, no application being made to the Tribunal and no explanation being forthcoming about why that application was not made, I find that waiver is established such that any discretionary relief would be withheld: Re Alley; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 64 ALR 6 and Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572. 26 I reject Ground 1.

Ground 2 27 I first set out the parts of the Tribunal's reasons relied on by the applicant in respect of this Ground. 39. In relation to 'recent' or 'present' conduct, I have no evidence before me about Mr Veliu's conduct since leaving Australia and nor is there any onus of proof requiring him to provide such evidence. I simply observe that after using a fraudulent identity for almost 15 of his 17 years in Australia, Mr Veliu left for Albania approximately two years after disclosing his real identity and I am unable to make any reliable conclusions or findings about his conduct after that time. I accept there is no evidence that Mr Veliu has attempted to repeat his immigration misconduct by once again seeking to gain entrance to Australia or any other country using the fraudulent identity. … 54. Mr Veliu's solicitor contends that if his visa request is approved, there would be '… no purpose or reason for him to re-commit…' the conduct that has brought his character into question. She submits that Mr Veliu's case is not comparable to those where the applicant comes '… to Australia with fake passports and then commit serious crimes upon arrival such as terrorism, violence, drug trafficking etc' yet they are allowed to retain their visa. With respect to that submission, the decision under review was not made because Mr Veliu failed the character test as a result of criminal or violent behaviour. The intended comparison has no merit, particularly as each case before the Tribunal is considered de novo. 55. I note Mr Veliu asks that his statement dated 1 June 2015 be seen as a '… genuine act of contrition…' apologising for his actions while claiming he '… had no counsel to guide…' him. I do not accept that submission, given Mr Veliu agreed during the hearing that he knew his conduct was illegal in 1994, when he was 40 years of age, yet undertook it anyway. His conduct enabled him to circumvent Australian law and gain prolonged residence for 17 years. Moreover, Mr Veliu contends that he has '… paid a high price…' for his actions in being separated from his family and '… continues to suffer with two [visa] refusals.' I infer from his contention that he considers the application of Australia's laws, in response to his admittedly illegal conduct, as a punishment imposed upon him. 56. The risk of harm that arises from a repetition of Mr Veliu's conduct includes the cost to the Australian community in managing the consequences of a person who intentionally uses a fraudulent identity for almost 15 years. That has not been insignificant and represents a significant opportunity cost in wasted time and taxpayer funds. This cost arises from multiple visa applications, requests for judicial and Ministerial review, a concocted marriage and then a divorce that have all been processed on the basis of his fraudulent identity. 57. In accordance with the Direction, I must consider information and evidence from independent and authoritative sources on the likelihood of Mr Veliu re-offending. No evidence from independent and authoritative sources about the risk of Mr Veliu repeating his past conduct was relied upon by his legal representatives during the hearing of this matter. As discussed earlier, submissions from psychologists Ms Clarris and Mr Stojcevski were tendered into evidence. These did not relate to Mr Veliu's risk of repeating his past conduct, but on the impact of visa refusal on Mrs Fatmira Veliu and Mr Erald Veliu respectively. For the reasons previously adduced I have afforded their evidence little weight. (Footnotes omitted.)

Submissions 28 The applicant submits that the Tribunal made a legal error by failing to give sufficient weight to the present conduct of Mr Veliu as evidence of his good character. The submission refers to [39] of the Tribunal's reasons and is that the Tribunal failed to give any consideration or weight to Mr Veliu's Albanian Police certificate dated 27 December 2012. 29 The submission also refers to [57] of the Tribunal's reasons and in particular to the reference to "No evidence from independent and authoritative sources about the risk of [Mr Veliu] repeating his past conduct was relied upon by his legal representatives during the hearing of this matter." It is submitted that the Tribunal did not refer to the absence of any charges, convictions or complaint about Mr Veliu's conduct since he left Australia. It is submitted that the fact that his being absent from Australia since 2011 led to a logical inference, absent any evidence of any convictions or criminal charges in that period or any other evidence of wrongdoing after leaving Australia, that Mr Veliu had not engaged in any character concern conduct. It is submitted that the reference to 11.1.2(3) of the Direction was relevant in the context of the risk of recidivism but was "not conclusive and against a positive finding of rehabilitation in the absence of character references and the undertaking of courses of rehabilitation." It is submitted that the evidence of a cessation of the character concern conduct was self-evident. To that extent, it is submitted, it was not open to the Tribunal to in effect ignore Mr Veliu's present good conduct. 30 The Minister submits that, subject to one point, the complaint was about the weight given to particular matters, which was a matter for the Tribunal. 31 The one point was that the applicant's argument that the Tribunal failed to have regard to Mr Veliu's Albanian Police certificate which, the applicant contended, was evidence of Mr Veliu's recent conduct that the Tribunal was required to take into consideration, proceeded on the incorrect factual premise that the Tribunal failed to have regard to that Police certificate. Reference was made to [16] of the Tribunal's reasons, as follows: 16. Convictions. There is no evidence that Mr Veliu has any recorded convictions in Australia23 or Albania24. It is not necessary, however, for the purposes of a visa refusal under section 501(1), that the conduct relied upon by the Minister must result in prosecution and/or conviction. The 'past and present general conduct provision' provides for a broader view of a person's character. In that regard, Mr Veliu's use of a fraudulent identity, despite not resulting in charges or convictions, is relevant in assessing whether he passes the character test. Footnote 24 was to Exhibit R1, pp.168-170, the certificate the applicant submits the Tribunal failed to consider. 32 The Minister submits that Mr Veliu failed the character test on grounds other than past convictions. The Tribunal's reasons made clear that the Tribunal was aware that he had never been convicted, but still considered that his conduct was such that he did not satisfy the character test. The discussion at [39] and [54]-[57], read in context, referred to an absence of evidence of conduct of the type discussed in [38] and [39] or the evidence of good character discussed in [38]. None of this suggested any error on the part of the Tribunal.

Analysis 33 I reject the submission that the Tribunal did not give any consideration or weight to Mr Veliu's Albanian Police certificate. The Tribunal took that certificate into account but was not proceeding by reference only to convictions. There was no legal error in the Tribunal stating that Mr Veliu's use of a fraudulent identity, despite not resulting in charges or convictions, was relevant in assessing whether he passed the character test. 34 I do not accept that the Tribunal was legally bound to proceed on the basis that Mr Veliu was presently of good conduct. 35 The Tribunal's reasoning was that it was not necessary for the conduct in question to result in prosecution and/or conviction and that Mr Veliu's use of a fraudulent identity, despite not resulting in charges or convictions, was relevant in assessing whether he passed the character test: see the Tribunal's reasons at [16]. The Tribunal also referred, at [23], to Mr Veliu's concocted marriage which continued until 26 July 2011 when he obtained a divorce order, again using his fraudulent identity. The Tribunal returned to this matter at [38]-[41] as follows: [38] … He not only used a fake passport to enter Australia, but continued to use the fraudulent identity for almost 15 years. The last occasion he used it in an immigration document was his application for a Bridging Visa in May 2009. Although I accept he subsequently 'came forward' as submitted by his solicitor and used his real name in a subsequent Bridging Visa application dated 1 June 2009 and in subsequent visa applications, the evidence shows he used the fraudulent identity after this time. He renewed his licence using the fraudulent identity and held it in that name until 30 June 2014. VicRoads records confirm that no driver's licence has been issued in his real name. He also obtained a Divorce Order from the Federal Magistrates Court in 2011, dissolving the marriage in the name of his fraudulent identity and Ms Talevska. During the hearing, Mr Veliu conceded he also held other identifying documents in the fraudulent identity, including a Tax File Number, bank and superannuation accounts. Mr Veliu also maintained the fraudulent identity in his dealings with fellow citizens in the community for the vast majority of his stay in Australia. 39. In relation to 'recent' or 'present' conduct, I have no evidence before me about Mr Veliu's conduct since leaving Australia and nor is there any onus of proof requiring him to provide such evidence. I sim2ply observe that after using a fraudulent identity for almost 15 of his 17 years in Australia, Mr Veliu left for Albania approximately two years after disclosing his real identity and I am unable to make any reliable conclusions or findings about his conduct after that time. I accept there is no evidence that Mr Veliu has attempted to repeat his immigration misconduct by once again seeking to gain entrance to Australia or any other country using the fraudulent identity. 40. I have had due regard for the positive things said in support of Mr Veliu by his family and in witness statements, particularly in relation to his volunteering, his valued contribution to the Albanian community, and his expressions of remorse. I acknowledge his evidence, that of his family and the submissions of his representative that if granted a visa, he intends to live a law-abiding life in Australia with his wife and amongst his children and grandchildren. 41. I am satisfied that Mr Veliu's conduct for almost 15 years of his 17-year stay in Australia reflects a prolonged, self-serving deceit, which shows a lack of enduring moral quality. Mr Veliu contends that '… so many people…' in Australia '… know me for all the right reasons.' But while the evidence reveals his valued community involvement and standing, the unavoidable fact is that for almost 15 years, that involvement and the reputational endorsement it attracted, was undertaken in a false name. That cannot be regarded, to paraphrase Lee J in Godley, as continuing conduct '… according to moral principle.' Mr Veliu's prolonged and deceptive conduct in Australia represents a serious, continuing breach of immigration law and is sufficient to outweigh any consideration of good conduct after he started to use his real identity in mid-2009 and beyond. I therefore find that Mr Veliu does not pass the character test. Having made that finding, I must make a supervening determination regarding the discretion granted by section 501(1) of the Act, which requires application of the considerations in Part B of the Direction, to the specific circumstances of his case. 36 The Tribunal reasoned that it was unable to make any reliable conclusions or findings about Mr Veliu's conduct after he left for Albania. Further, in light of the Tribunal's reasoning, or otherwise, the absence of charges, convictions or complaint does not lead logically to an inference that Mr Veliu had not engaged in any character concern conduct. Neither do I accept the submission that the evidence of a cessation of the character concern conduct is self-evident. 37 In my opinion, Ground 2 fails. The submissions on behalf of the applicant impermissibly seek to dispute on judicial review inferences available to be drawn by the Tribunal from the material before it.

Ground 3 38 The applicant submits that the Tribunal did not apply the correct standard with respect to the likelihood of the risk of repeat conduct on the part of Mr Veliu. The relevant test is submitted to be "unacceptable/acceptable risk". It is then submitted that Mr Veliu's absence from Australia since 2011 and the absence of any further impositions on the Commonwealth were overall suggestive of a significant change in his behaviour which was the subject of submissions at the hearing. 39 The submission is that the Tribunal erred in the following paragraph: 61. As the Direction implicitly acknowledges, the Australian community's expectations include the acceptance of some risk in relation to the conduct of non-citizens, depending on its seriousness. The Australian community also expects that people will be given a chance to redeem themselves and realign their behaviour with expected social norms. That is evident from provisions in Australia's criminal justice system and the rehabilitative opportunities it provides. But in Mr Veliu's case, I find that the risk of him repeating the conduct for which his character has been called into question is not insignificant, particularly given that self-interest was the prime motivator for his previous and prolonged misconduct. I am not satisfied that Mr Veliu wouldn't resort to further misconduct in the future if he considered it was to his advantage to do so. 40 In particular, it is submitted that the Tribunal fell into legal error by shifting the focus from "an acceptable" risk to "him (Mr Veliu) repeating the conduct for which his character has been called into question is not insignificant". 41 I also set out the immediately following paragraph of the Tribunal's reasons: 62. Mindful of the framework principles and after considering the nature and seriousness of Mr Veliu's conduct, coupled with an assessment of the risk he poses to the Australian community, I find that the primary consideration of protecting the Australian community weighs in favour of refusing his visa application. 42 The Minister submits that this Ground proceeded upon a misreading of the Tribunal's reasons. 43 In [61] of the Tribunal's reasons, the Tribunal was discussing the likelihood of Mr Veliu repeating the conduct for which his character had been called into question. The Tribunal was not satisfied that he would not engage in similar conduct again. 44 The Tribunal's discussion of risk of further misconduct on the part of Mr Veliu at [61] was to be read in the context of its earlier discussion of the extent of the potential detriments to the Australian community of any repetition of that conduct at [56]. Those detriments were said to include the cost to the Australian community of managing the consequences of a person who intentionally used a fraudulent identity for almost 15 years. At [62] there was a synthesis of those matters: the significance of the possible harm to the Australian community, together with an assessment of the risk that that harm would eventuate. That was the "risk [the applicant] poses to the Australian community" to which the Tribunal there referred. Having regard to those matters, the Tribunal concluded that the "consideration of protecting the Australian community" weighed in favour of refusing the visa. That is, it determined that the relevant risk was "unacceptable".

Analysis 45 In my opinion, contrary to the tendency of the submissions on behalf of the applicant, this issue must be addressed as a matter of substance and not of mere language. 46 The Tribunal first set out the relevant paragraph of the Direction, 11.1.2, at [53] of its reasons. In my opinion, the Tribunal was assessing the risk of the relevant conduct in the future as part of its assessment as to whether, as a matter of its evaluation, the risk of harm was unacceptable. The risk of harm is the matter specifically addressed from [53] and following of the Tribunal's reasons. At [61], the Tribunal referred to "the acceptance of some risk … depending on its seriousness." The Tribunal then went on to find that the risk of Mr Veliu repeating the conduct was not insignificant. In substance the Tribunal finds that the risk he poses to the Australian community is unacceptable and applies that principle. The Tribunal also referred, at [62], to the framework principles and to the assessment of risk. It is for the Tribunal to make that evaluation, which it did. I refer also to what the Tribunal said at [82]. 47 In my opinion, the Tribunal did not fall "into legal error by not applying the correct standard" with reference to the Direction. 48 It is unnecessary to decide whether the claimed departure from the terms of the Direction could establish judicially reviewable error on the part of the Tribunal: see Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [55] and compare YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39]. 49 I reject Ground 3.

Conclusion 50 The application is dismissed. The applicant should pay the first respondent's costs, as agreed or taxed. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.