Xie v Minister for Immigration & Multicultural Affairs

The criteria for a Subclass 450 visa. 21 The criteria for the grant of a Subclass 450 - Resolution of Status - Family Member (Temporary) Visa are set out in Sch 2 of the Regulations. As noted above, a Subclass 450 visa and a Subclass 850 visa are linked together. As is typically the case, a Subclass 450 visa sets out criteria required to be satisfied at the time of the application, and also criteria which must be satisfied at the time of the decision. For present purposes it is sufficient to note that an applicant for such a visa must demonstrate that he is relevantly a "dependent child" of the holder of a Subclass 850 visa. 22 The applicant contends that Ms McCann erred in law in finding that he was not relevantly a "dependent" or a "dependent child" as those terms are defined in reg 1.03 of the Regulations. 23 The terms "dependent" and "dependent child" are defined in reg 1.03 as follows: "dependent, in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support. dependent child means the natural or adopted child of a person (other than a child who is a spouse or engaged to be married), being a child: (a) who: (i) has not turned 18; and (ii) is wholly or substantially in the daily care and control of that person; or (b) who: (i) has turned 18; and (ii) is dependent on that person; or (c) who is wholly dependent or substantially incapacitated for work because of a disability of a kind referred to in paragraphs (a) to (g) of the definition of disability in subsection 4(1) of the Disability Discrimination Act 1992." 24 It is clear that the applicant, having turned 18 long before March 1999, had to bring himself within par (b) of the definition of "dependent child" in order to qualify for a Subclass 450 visa.

The delegate's reasons for decision 25 On 3 March 1999 Ms McCann wrote to the applicant informing him that his application for a Subclass 450 visa had been rejected. She attached to her letter her reasons for decision. 26 After setting out such matters as the personal details of the applicant, the legislative framework, and the definitions of "dependent" and "dependent child" in reg 1.03 and the documents upon which she had relied in arriving at her decision, Ms McCann continued: "At the time of application Mr Xie Song was aged 23 years. In order to satisfy the definition of 'dependent child', Mr Xie needs to demonstrate that he is "wholly or substantially dependent (on his father) for financial, psychological or physical support". To assist in this determination, Mr Xie conducted in [sic] a telephone interview, with an officer of this office, on the 11th February 1999. The record of that interview is held in Iris. During this interview Mr Xie stated that he enrolled in Shanda University in Shanghai in September 1994 and is still currently enrolled. From September 1994 to September 1996 he majored in Accounting, and from September 1996 to February 1999, he majored in Computer Application. During his Computer application studies, Mr Xie applied for leave from September 1997 to February 1998, at which time he applied for a 457 Temporary Business visa to visit his relatives in Australia. When his application was refused, Mr Xie resumed his studies in Computer Application. When asked whether these two courses were related, Mr Xie stated that he thought they were closely related but not part of the one course, and that he had decided to further study to enhance his knowledge and education to allow him a better chance in finding employment. Mr Xie was then asked about any past employment and how he supports himself, to which he answered that he has never held down any employment and that he relies on financial support from his parents in Australia. As both Mr Xie's parents live in Australia, he stated that he has been living with his aunt from January 1995 until 1998 when he moved into his families [sic] apartment which was returned by the government. The Procedures Advice Manual 3 sets down policy guidelines for departmental officers delegated to determine visa applications. In Division 1.2, Reg 1.03 Interpretation - Dependent, it is stated in part that we can consider dependency for an unmarried adult child, under the age of 25 years of age who is generally living in the family home and is a full time student. It is further stated that the profile of a dependent student is one who, has full-time student status and is working towards their first qualification. PAM goes on to say that students who have completed one post-secondary qualification and are continuing with study, whether part-time or full-time, are not considered to be dependent. PAM further states that it is important to establish whether the dependence is by preference, or the person has to rely on another for support and there is no choice involved. I consider that Mr Xie's activities since graduating from Accounting in 1996, (enrolment in a second full-time course and applying for a 457 temp. business visa to Australia) have demonstrated that he has made the decision to remain financially dependent for reasons other than from necessity. I find that, Mr Xie has made an adult decision and chosen not to seek employment but to further study and remain at home to receive financial support from his father, sponsor Xie Huai An. While I accept that Mr Xie probably receives financial support from his father, I consider this to be Mr Xie's choice, and does not prevent him from moving beyond the bounds of childhood dependence. I have considered whether Mr Xie has demonstrated that he is "…wholly or substantially dependent … for … psychological … support". I note that PAM3 states that "… the policy intention is that psychological dependence be related to a mental or emotional impairment or a medical condition which prevents the person from living independently". On the basis of the information provided by Mr Xie, I consider that he and his father share a normal relationship such as exists between family members. I do not consider that Mr Xie has demonstrated that he is wholly or substantially dependent on his father for psychological support. Taking into account all of the above, there is no evidence before me that would indicate that Mr Xie Song is wholly or substantially dependent on his father for psychological or physical support. On this basis I am not satisfied that Mr Xie Song meets the definition of 'a dependent child' set down in regulation 1.03, and therefore find that Mr Xie fails to satisfy subregulation 450.211. 5. DECISION Mr Xie fails to satisfy subregulation 450.211 and as this is failed, I refuse the grant of the subclass 450 visa application of Mr Xie Song. ZOE MCCANN Position Number: 5230 03 March 1999" 27 It is clear from these reasons that Ms McCann considered that the applicant satisfied all of the requirements for a Subclass 450 visa save for the requirement that he be "the dependent child" of an applicant for a Subclass 850 visa. 28 Ms McCann's reference to the Procedures Advice Manual 3 was a reference to what are colloquially described as "the PAM Guidelines", or "PAM 3". Those guidelines are a companion to the Regulations. Their main purpose is to provide guidance to departmental officers on the interpretation of the Regulations. They mirror the order and contents of the Regulations and comment on or annotate those thought to require comment, background or policy interpretation. The PAM 3 Guidelines also cover general principles and procedural issues as well as matters arising directly from the Act. 29 The status of the Guidelines is described as follows: "The term "guidelines" is generally used to describe the content of PAM3 documents. However, PAM3 documents are DIMA policy/procedural documents, with status as official instructions within DIMA's centralised instructions system … The guidelines in PAM3 on interpreting the law have the status of departmental policy and as such must be given due weight by delegates of the Minister who are making decisions on visa applications. However, policy cannot be regarded as inflexible and decision makers must not give it the same force as law." 30 The particular PAM 3 Guideline dealing with the interpretation of reg 1.03, to which Ms McCann referred in her reasons for decision, stipulates that in assessing a person's claims to be dependent on another person, officers should take into account the following policy factors: "Nature of dependence 3. To understand the meaning of "dependent" the nature of "dependence" must first be explained. 4. "Dependence" relates to "satisfying the lower order needs" that is, those that are required to be sustained, namely food, shelter and minimal clothing. "Dependence" does not encompass reliance on another person for luxuries and discretionary consumption goods or higher order needs. This is implicit in the common understanding of the term but has also been given judicial recognition. 5. Dependence also means having to rely on someone else for what is needed and excludes choice. For example, a person who chooses not to live in the family home and is living elsewhere independently is considered prima facie not dependent. Dependence is not something to be assumed for the sake of convenience. Rather, it is a state of being unable to live independently. It does, however, recognise that circumstances can force a person to remain dependent without choice, for example, dependence arising from disability." 31 The PAM 3 Guideline continues: "Students 13. If a child progresses to further studies after secondary schooling, Australians would generally accept that the child is still dependent on its parents and dependence has not been terminated (and this is codified in various State/Territory and Commonwealth laws). 14. The questions most asked about students are how long should they be allowed to study and still [sic] considered to be dependent, how should part-time study be regarded and how should employment (full-time or part-time) be assessed. 15. In policy, the profile of a dependent student is one who · has full-time student status; · is working towards their first major qualification; · is under 25; · (generally) lives at home (although this is not appropriate in all contexts); · can provide evidence of some financial dependence; and · may be working part-time. 16. The common theme is that the student should be in full-time study. In Australia, full-time study is commonly taken to mean at least 75% of the normal study load for the particular course. Students who have completed one post-secondary qualification and are continuing with study, whether part-time or full-time, are not considered to be dependent." 32 In her reasons for decision Ms McCann concluded that by his actions since graduating in Accounting in 1996, namely enrolling in Computer Application, a second full-time course of study, and applying for a Subclass 457 visa to enter Australia, the applicant had demonstrated that he had made the decision to remain financially dependent upon his father "for reasons other than necessity". She found that the applicant had made "an adult decision" not to seek employment, but to engage in further study while continuing to receive financial support from his father. She concluded that there was nothing to prevent the applicant from ending his reliance upon his father for financial support, should he choose to do so. The applicant's contentions regarding "dependence". 33 The applicant contended before me that Ms McCann's reasons for decision demonstrate that, rather than approaching the PAM 3 Guidelines as though they were Departmental policy, she had applied the Guidelines as though they contained the words of a statute - see Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 540-1 per Sheppard J (with whom Beaumont J agreed) and at 542 per Burchett J. She had treated the Guidelines as though they provided specific criteria all of which had to be satisfied in order for the applicant to make good his case for the visa sought. Having failed to satisfy the second criterion set out in par 15 of the Guidelines, namely that he was still working towards his "first major qualification", the applicant was treated as being thereby excluded from being a "dependent child". Ms McCann's approach to the Guidelines had led her to interpret the language of reg 1.03 in a manner which was unduly restrictive, and not in accord with its ordinary and natural meaning. 34 The applicant also contended, in the alternative, that the respondent had failed, pursuant to s 54 of the Act, to "have regard to all of the information in the application". That contention was only faintly pressed. It is, in any event, so clearly untenable having regard to the detail set out in Ms McCann's reasons for decision that nothing further need be said about it.

The respondent's contentions. 35 The respondent submitted that Ms McCann had done no more than recognise that implicit within the terms "dependent" and "dependent child" in reg 1.03 is the concept of "real need". He relied for this proposition upon Minister for Immigration and Multicultural Affairs v Pires (1998) 90 FCR 214 where Mansfield J, at 219-220 provided the following analysis of reg 1.03: "The definition of "dependent" contains within the definition the word which is itself being defined. The definition thus requires some meaning to be attributed to the phrase "wholly or substantially dependent". In my view, that expression is not unambiguous. It is an expression capable of describing simply the practical state of affairs as a matter of fact, namely that a person is relying upon some other person for financial support. It is an expression which is also capable of describing a state of need, namely that a person has to rely upon some other person for financial support. In Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177, the question of dependency for the purposes of the Workers Compensation Act 1927 (Tas) was required to be addressed. Gibbs J recognised the inherent ambiguity in the expression "dependent" in the following passage (at 187-188): 'The word "dependent" is not defined in the Act, although there is a definition of "dependants" which does not assist in deciding the present question. However, in its relevant sense, the adjective "dependent", as defined in the Oxford English Dictionary, means that a person to whom it is applied "depends or has to rely on something else for support, supply, or what is needed". The word, as this definition shows, is capable of different shades of meaning. It may mean "relying for support", so that it connotes actual reliance, or "having to rely for support", so that it connotes not only reliance in fact but a need to rely for support. The question whether a woman who has property or income of her own but who is in fact entirely supported by her husband can be said to be wholly dependent upon his earnings, involves the further question in which of those senses the word is used in the Act.' In my view, those observations are equally apt to the definition of dependent in the Act. I have come to the conclusion that the expression "wholly or substantially dependent" in the relevant definition was intended to convey that the visa applicant has a need to rely upon another person for financial support, rather than simply describing the fact that another person is providing that financial support. It is appropriate to explain my reasons for that conclusion. The definition identifies that the dependency may involve the need for financial, psychological or physical support. It is clear that there is contemplated some real need on the part of the visa applicant for that support. Put at its lowest level, by way of example, it would not sensibly fulfil the purposes of the Act if a visa applicant was able to choose not to cook or clean, and allowed a state of fact to develop where some other person was providing that physical support. Indeed, as the expression "psychological support" has been interpreted (as discussed below), it involves an identifiable need for that type of support. It is therefore likely that the concept of "physical support" in context also was intended to convey that the visa applicant has a need for financial support, and not simply that as a fact such support was being provided." (emphasis added) 36 The respondent submitted that underlying Mansfield J's judgment was the principle that "choice" is the antithesis of "dependence". 37 Ms McCann had referred specifically to the applicant having chosen, after he had majored in Accounting, to undertake a second course of study in Computer Application. She had concluded that it was the applicant's choice to continue studying which made it necessary for him to continue to rely on his father for financial support. It had been the exercise of that choice that precluded him from demonstrating that he was relevantly "dependent". 38 The respondent also submitted that nothing in Ms McCann's reasons for decision supported the contention that she had applied the policy embodied in par 15 of the PAM 3 Guidelines in an inflexible manner, as though the matters set out therein were statutory requirements which had to be strictly proved. Rather, the respondent submitted, Ms McCann had simply taken a broad overview of the applicant's situation. She had concluded, on the material before her, that the applicant could reasonably have found acceptable employment after he had majored in Accounting, but had chosen to undertake further studies in the hope of securing a better job in the future. That had been his choice, and it had been a free and effective choice.

Conclusion regarding the applicant's "dependence" upon his father. 39 I am unable to accept the applicant's submission that Ms McCann's reasons for decision demonstrate that she applied the PAM 3 Guidelines inflexibly, as though the words used in those Guidelines were the words of a statute. It seems to me that Ms McCann certainly had regard to the concept of "real need" when she considered whether the applicant had demonstrated that he was wholly or substantially dependent on his father for financial support. Her reasoning in this regard is closely aligned to that of Mansfield J in Pires (supra). 40 Ms McCann's finding that the applicant did not act out of necessity ("real need") in undertaking a second major course of study was a finding of fact which, it seems to me, was open to her. It was, in any event, a finding of fact which, in my view, is not properly open to challenge before me. 41 It is obvious that a rigid application of a "real need" test when determining dependence in the context of an adult child who is a student is capable of producing various anomalies. In one sense, it is always matter of "choice" as to whether or not a young person who has finished his or her schooling goes on to further studies rather than seeking out such employment as is available. However, the PAM 3 Guidelines contemplate that there may still be "dependence" in such circumstances provided that the young person is working towards his or her first major qualification. The policy underlying the Guidelines is presumably that young persons should be encouraged to continue their studies beyond normal school leaving age but, having acquired a first major qualification, there is no "real need" to pursue any additional qualification thereafter. 42 The distinction between a person who is still working towards a first major qualification and a person who considers it necessary or desirable to pursue a further course of studies is, of course, one grounded in policy, and not in logic. There is nothing in the language of reg 1.03 which provides any direct warrant for such a distinction. The PAM 3 Guideline is difficult to apply in practice, given the myriad of meanings which may attach to the concept of a "first major qualification". Is a professional practice course undertaken by a law graduate as a prerequisite to admission part of that "first major qualification", or is it a second course of study? Is a Diploma of Education undertaken after a Bachelor of Arts degree sufficiently linked to that degree to make it part of a "first major qualification", or is it separate and distinct, transferring the student undertaking that course instantly into non-dependent status? 43 If I were of the view that Ms McCann had rejected the applicant's claim for a Subclass 450 visa automatically, simply because he had enrolled in a second course of study, I would not hesitate to set aside her decision. That would be to elevate a policy which is itself difficult to comprehend into an inflexible and binding vehicle governing the interpretation of reg 1.03. However, I do not interpret her reasons for decision in that way. In my view her approach was neither so simplistic, nor so rigid. The true basis of her decision was that the applicant had made a free and informed choice to remain financially dependent upon his father. That finding of choice led her to conclude that the applicant had failed to demonstrate the necessity implicit in dependence, and led her, therefore, to reject his claim.

The applicant's contention of actual bias 44 Section 476(1)(f) of the Act provides that this Court can set aside a "judicially-reviewable decision" if that decision was "induced or affected by fraud or by actual bias". Apprehended bias is not available in this Court as a ground of review. 45 There are many authorities which deal with what may constitute actual bias. Several helpful statements of principle are set out in the judgment of the Full Court in Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71. Wilcox J said at 123: "Lindgren J referred to a comment by North J in Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, North J, No VG451/1994, 24 June 1996) that s 476(1)(f) requires an applicant to show "that the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case". That approach was followed by Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Lockhart J, No 902/96, 18 October 1996). He made three points. First, 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. Second, any particular matter relied on as showing actual bias must be considered in the context of the whole hearing. Third, it is not enough that the decision-maker displayed irritation or impatience or even used sarcasm." 46 Burchett J said at 127: "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." 47 North J said 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…" 48 In Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281, Finkelstein J observed, at 289: "There are very few cases in the law reports where a finding of actual bias has been made against a judge. This no doubt reflects well on our system of justice. To some extent, however, it is also a reflection of the fact that where a finding of presumed or constructive bias can be made there is no need to consider the much more serious allegation of actual bias. Where the courts have considered the question of actual bias the focus of the inquiry has been whether the decision-maker has brought a "closed mind" to the inquiry: see, for example, Re Gooliah and Minister for Immigration and Citizenship 63 DLR (2d) 224 at 229 and Vakauta v Kelly (1989) 167 CLR 568 at 576; 87 ALR 633. There are conflicting decisions on what needs to be shown to establish that a decision-maker has a "closed mind". One view is that expressed by Devlin LJ in R v Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167. His Lordship said (at 187) that: The court might come to the conclusion that there was such a likelihood [of bias] without impugning [the statement of the decision-maker] that he was not in fact biased. Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so. This passage was cited with approval by Lord Goff in R v Gough [1993] AC 646 at 659. On this view actual bias need not be wilful. Another view is that to make out a case of actual bias it is necessary to show that the decision-maker's mind was intentionally closed. 49 His Honour then considered Anderton v Auckland City Council [1978] 1 NZLR 657 at 687 where that other view was expressed and continued, at 290: "It is hard to see why this approach is correct. I accept that most often actual bias will result from an intentional state of mind. But this will not always be so. For so long as the possibility exists that bias may be unconscious there is no reason in principle why a claim should not succeed in that circumstance. The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point in so far as the validity of the decision is concerned." See also Jia Le Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951 per Spender and RD Nicholson JJ. 50 It need hardly be said that a finding of actual bias will not lightly be made. Indeed, a person affected by a decision who asserts bias of this type must demonstrate that there are "strong grounds" for that contention - R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116. See also Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 317. In the first place, the difficulties of proof will often be insuperable. Even if a decision-maker is affected by actual bias, he will seldom include in his reasons for decision any overt displays of bias. Rather, actual bias will have to be inferred. It may be that such an inference can be drawn from statements made by the decision-maker to others. Such statements may relate to the individual case before him, or they may be of a more general nature. It may also be possible, in a particular case, to demonstrate actual bias by other means as, for example, where a decision-maker consistently, and over a long period of time, finds in favour of, or against, one type of litigant. 51 In the present case I am invited to infer actual bias on the part of Ms McCann by reason of the history of Dr Xie's past dealings with the Department. It is said that Dr Xie had become such a thorn in the Department's side over many years that the Department, and therefore Ms McCann, would have had a strong motive to exact "revenge" upon him. 52 I am also invited to infer actual bias on the part of Ms McCann because she may have become aware from having read the applicant's file that he had on several prior occasions sought unsuccessfully to come to this country, and may also have become aware of the views of Mr Simpson, and of "Harry", that the applicant was not relevantly a "dependant" of Dr Xie. 53 For the purpose of dealing with this submission I am prepared to assume, contrary to the respondent's submission, that the evidence establishes that when Ms McCann determined this application she had before her all previous files and computerised records relating to the applicant's earlier attempts to come to Australia, and had read them. These files recorded the views of previous officers of the Department who had rejected the applicant's earlier applications. They included, in particular, the letter written by Mr Simpson on 22 March 1998, and the computerised file note of 23 February 1999 prepared by "Harry". 54 There is, in my view, no foundation for the allegation that Ms McCann's decision was induced or affected by actual bias. I do not accept the submission that I should find that Ms McCann approached the applicant's claim upon the basis that it should be rejected in order to punish his father for the difficulties which he had caused the Department over many years. There is no evidence upon which any such conclusion could properly be based. 55 There is also no evidence to suggest that Ms McCann was improperly influenced, whether consciously or subconsciously, by what she knew of the applicant's previous attempts to enter this country. Nor is there any evidence to suggest that she was improperly influenced, or overborne, by the opinions expressed by Mr Simpson or by "Harry" regarding the applicant's claim to be a "dependent child". There is nothing to suggest that, even assuming that she was aware of these opinions, she deferred to them, and did not form her own independent judgment as to whether or not the applicant was relevantly "dependent" upon his father. 56 This ground of review must also be dismissed.

Conclusion 57 My conclusion that the applicant has failed to demonstrate legal error in the reasoning of Ms McCann, and also that he had failed to demonstrate actual bias on her part, leaves me with no alternative but to dismiss this application. 58 The applicant must pay the respondent's costs. I certify that the preceding fifty -eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Solicitor for the Applicant: Erskine Rodan & Associates

Solicitor for the Respondent: Australian Government Solicitor