FEDERAL COURT OF AUSTRALIA

Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885

IMMIGRATION – Migration Review Tribunal – whether decision affected by actual bias – whether actual bias to be inferred from reasoning of Tribunal.

Migration Act 1958 (Cth), s 476.

Migration Regulations 1994 (Cth), reg 1.15A; Sch 2, Part 100.

Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, applied.

Abebe v Commonwealth (1999) 197 CLR 510, cited.

Re Gooliah and Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224, cited.

Jia v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556, applied.

Li v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 125, cited.

Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited.

Crock, “Of Fortress Australia and Castles in the Air: The High Court and the Judicial Review of Migration Decisions” (2000) 24 Melb Uni LR 190

SOVAN YIT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 443 OF 2000

SACKVILLE J

27 JULY 2000

SYDNEY

THE COURT ORDERS THAT:

1.      The application be dismissed. 

2.      The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE PROCEEDINGS

1                     In Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (FC), Wilcox J pointed out that the limitations imposed by s 476 of the Migration Act 1958 (Cth) (“Migration Act”) on the grounds of review available in the Federal Court encourage disappointed migration applicants to search amongst the few available statutory grounds of review for an arguable basis on which to challenge the administrative decision refusing their application.  His Honour remarked presciently that (at 122):

“[i]t will not be surprising if, in their disappointment at the Tribunal’s decision, many claim actual bias.  The result will be to substitute for an inquiry into the character of the decision an inquiry into the character of the decision-maker”.

The present case is an illustration of the tendency foreseen by Wilcox J.

2                     The applicant in this Court (the “sponsor”) seeks review of a decision made by the Migration Review Tribunal (the “Tribunal”) on 19 April 2000.  The Tribunal affirmed a decision of a delegate of the respondent (“the Minister”) refusing the applicant’s wife, Somarlime Nut (“the visa applicant”), a Spouse (Migrant) (Class BC) Subclass 100 (Spouse) visa.  The visa applicant is a citizen and resident of Cambodia.  The sponsor is a citizen and resident of Australia.

3                     When the proceedings were commenced in this Court, the sponsor was not legally represented.  His application to this Court did not identify any ground of review available under the Migration Act.  At the hearing, however, the sponsor was represented by Mr McHugh of counsel.  Mr McHugh did not seek to file an amended application, but relied on written submissions.  Those submissions identified two grounds specified in s 476(1) of the Migration Act on which the sponsor relied, namely

(a)                that the decision “involved an error of law” (s 476(1)(e)); and

(b)               that the decision was “affected…by actual bias” (s 476(1)(f)).

4                     In the course of argument, Mr McHugh abandoned the contention that the decision of the Tribunal involved an error of law.  The sole issue, therefore, is whether the decision of the Tribunal was affected by actual bias.

FACTUAL BACKGROUND

5                     The visa applicant applied for a Subclass 100 (Spouse) visa on 29 October 1996.  She had married the sponsor the previous day (that is, on 28 October 1996) in a ceremony in Cambodia.  At the time of the ceremony the visa applicant was a widow aged 36, with two children.

6                     The sponsor was born in Cambodia in 1924.  He arrived in Australia in 1982 and became a citizen in 1985.  He holds legal qualifications obtained in Cambodia.  According to the Tribunal, the sponsor has been married three times.  He was first married in Cambodia in 1947.  There were seven children of this marriage, of whom four were living at the time of the Tribunal’s decision.  One of these children resides in Australia.  The sponsor’s second marriage took place in Australia in 1993.  The third was the marriage to the visa applicant.  The sponsor has also had at least two de facto relationships.

7                     The sponsor sponsored two of his previous partners to become permanent residents of Australia.  The first sponsorship occurred in the 1980s and resulted in the sponsor’s then de facto wife gaining permanent residency in Australia.  The second occurred in 1993, and involved the sponsor’s then wife, Ms Tim.  The sponsor and Ms Tim separated in 1995 and divorced in September 1996.

8                     The sponsor arrived in Cambodia for a visit on 6 December 1995.  He married the visa applicant some ten months later.  It is not clear from the Tribunal’s reasons whether the sponsor remained in Cambodia throughout the ten month period. The Tribunal found, however, that he remained in Cambodia for seven months after his marriage to the visa applicant, returning to Australia in May 1997.  The sponsor did not see his wife at any time between May 1997 and the date of the Tribunal’s decision in April 2000.

THE LEGISLATIVE REQUIREMENTS

9                     It was common ground that the criteria for the Subclass 100 (Spouse) visa were set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth), as they stood at the date of the original application (29 October 1996).  The relevant criteria were the following:

“100.21           Criteria to be satisfied at time of application

  100.211(1)    The applicant meets the requirements of subclause (2)….

(2)         The applicant meets the requirements of this subclause if:

(a)               the applicant is a spouse of an Australian citizen;…

100.22                      Criteria to be satisfied at time of decision

100.221                  The applicant continues to satisfy the criterion in clause 100.211.

100.222                  The sponsorship referred to in clause 100.212 has been approved by the Minister and is still in force.”

10                  The expression “spouse” was defined in Migration Regulations 1994, reg 1.15A(1):

“1.15A(1)        For the purpose of these Regulations, a person is the spouse of another person if:

(a)               the 2 persons are:

(i)                 married to each other under a marriage that is recognised as valid for the purposes of the Act; or

(ii)               de facto spouses of each other, as set out in subregulation (2); and

(b)               the Minister is satisfied that:

(i)                 the 2 persons have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii)               the relationship between the 2 persons is genuine and continuing; and

(c)               the Minister is satisfied that the 2 persons are:

(i)                 living together; or

(ii)               not living separately and apart on a permanent basis.”

11                  Regulation 1.15A(3) provided as follows:

“(3)     In forming an opinion for the purposes of paragraph (1)(b) and (c) in relation to an application for a visa of subclass 100…, the Minister must have regard to all the circumstances of the relationship, including, in particular:

(a)               the financial aspects of the relationship, including:

(i)                 any joint ownership of real estate or other major assets; and

(ii)               any joint liabilities; and

(iii)             the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv)             whether one party to the relationship owes any legal obligation in respect of the other; and

(v)               the basis of any sharing of day-to-day household expenses;

(b)               the nature of the household, including:

(i)                 any joint responsibility for care and support of children, if any; and

(ii)               the parties’ living arrangements; and

(iii)             any sharing of responsibility for housework;

(c)                the social aspects of the relationship, including:

(i)                 whether the persons represent themselves to other people as being married or in a de facto relationship with each other;

(ii)               the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

(iii)             any basis on which the persons plan and undertake joint social activities;

(d)               the nature of the persons’ commitment to each other, including:

(i)                 the duration of the relationship; and

(ii)               the length of time during which the persons have lived together; and

(iii)             the degree of companionship and emotional support that the persons draw from each other; and

(iv)             whether the persons see the relationship as a long-term one.”

THE TRIBUNAL’S DECISION

12                  The major questions identified by the Tribunal were whether it was satisfied that the sponsor and the visa applicant had “a mutual commitment to a shared life as husband and wife to the exclusion of all others” (reg 1.15A(1)(b)(i)) and that the relationship between them was “genuine and continuing” (reg 1.15A(1)(b)(ii)).

13                  The Tribunal noted that a number of Cambodian citizens, in addition to the sponsor himself, had provided declarations in the English language supporting the genuineness of the marriage relationship.  It found that the weight to be attributed to those declarations was “reduced”, in part because the statements had been drafted in Australia and the declarants had not used their own words. 

14                  The Tribunal considered that doubt was cast upon the sponsor’s claims because the same claims had been made in order to secure an Australian visa for his second wife, Ms Tim, also a person much younger than the sponsor.  Moreover, the sponsor had not returned to Cambodia to visit his wife.  The Tribunal found that the sponsor had

“no desire to live with the [visa applicant] if she cannot come to Australia and his commitment to her is a shallow one based on his wanting [her] to come to Australia to look after him”.

Accordingly, the Tribunal was not satisfied that the sponsor and the visa applicant had a mutual commitment to a shared life as husband and wife or that their relationship was genuine and continuing.

15                  The Tribunal noted that reg 1.15A(1)(b)(ii) also required that it be satisfied that the parties did not live separately and apart on a permanent basis.  According to the Tribunal, the sponsor had given no indication that he would live with the visa applicant if she did not come to Australia.  There was no compelling evidence that the sponsor and visa applicant had lived together for the seven months the sponsor remained in Cambodia.  On the contrary, Departmental inquiries in Cambodia had revealed that several of the visa applicant’s neighbours denied seeing the sponsor in or near her home.

16                  Having reached these conclusions, the Tribunal went on to find that the claims of the sponsor and visa applicant were “not credible”.  The Tribunal observed that the sponsor

“did not display the least concern for his wife or her two daughters.  He has entered into several unsuccessful prior relationships and has sponsored other wives.  This circumstance does not improve the credibility of his claims in this case.”

The evidence led the Tribunal to restate its finding that the marriage was not genuine and continuing.

17                  Finally, the Tribunal addressed the circumstances identified in reg 1.15A(3)(a), (b) and (c).  It made the following findings:

·        Neither the sponsor nor the visa applicant had provided objective evidence to show that they had joint assets or liabilities or that they had pooled their finances (sub-par (a)).

·        There was little reliable evidence that the sponsor and visa applicant had established a household together.  There was evidence from the visa applicant’s daughter that the sponsor had stayed at a hotel and had never stayed overnight at the visa applicant’s house (sub-par (b)).

·        The investigations made in the local community had suggested that neighbours believed that the visa applicant had not remarried (sub-par (c)).

The Tribunal found that the parties had “not satisfied it of the matters required to be taken into account according to reg 1.15A(3)”.

THE SPONSOR’S SUBMISSIONS

18                  Mr McHugh argued that the Tribunal had overlooked or misstated the effect of the evidence.  While each mistake of itself did not demonstrate bias, the cumulative effect suggested that the Tribunal member had closed her mind to the possibility that the sponsor may have given truthful evidence.  Mr McHugh pointed out that the authorities suggest that actual bias need not involve malevolence or bad faith, since it can occur subconsciously.  Moreover, an inference of actual bias can be drawn from objective facts and circumstances.  On this basis, Mr McHugh invited me to infer that the Tribunal member must have been actually biased.  He identified four specific matters that warranted such an inference.

19                  First, the Tribunal stated in its reasons that the sponsor had provided telephone bills covering much of 1997 and again for late 1998.  It also said that the telephone number of the visa applicant did not appear as frequently as other numbers.  In fact the telephone bills showed that many calls had been made to the visa applicant during the calendar year 1998 and in the first half of 1999.

20                  Secondly, the Tribunal found that the sponsor had no desire to live with the visa applicant if she could not come to Australia.  It stated that the sponsor had given no indication that he would live with the visa applicant if she did not come to Australia.  Yet the sponsor, in a letter sent to the Tribunal in February 1999, had said that

“[i]f everything stays stagnant, I have to be with my wife in the disastrous and dangerous country.”

21                  Thirdly, the Tribunal claimed that the sponsor had said, in a letter dated 4 September 1999, that he had never stayed at his wife’s home for reasons of comfort.  According to Mr McHugh, the sponsor in fact said that he did not stay overnight at his wife’s home because of “many factors”, although one of the two factors specifically mentioned was that “my wife’s house is not up to the standar[d] of Aust. Living”.

22                  Fourthly, the Tribunal attached little weight to statutory declarations by relatives and friends in Cambodia because they had “obviously [been] drafted in Australia” and had been faxed to the declarants from Australia in order to be executed in English.  The Tribunal had overlooked evidence that, prior to the typing of the statutory declarations in Australia, at least some of the declarants had apparently prepared certificates in the Khmer language which had been transmitted to Australia.  According to Mr McHugh, these certificates provided the basis for the statutory declarations ultimately signed in Cambodia.

23                  Mr McHugh sought to attach special significance to the fact that a document in the form of a draft statement of decision and reasons contained passages ultimately adopted in whole or in part by the Tribunal member.  He submitted that this showed that the Tribunal member had formed concluded views as to the credit of the sponsor prior to the hearing.

REASONING

THE TEST OF ACTUAL BIAS

24                  In Abebe v Commonwealth (1999) 197 CLR 510, a majority of the High Court upheld the constitutionality of Part 8 of the Migration Act, insofar as it restricts the jurisdiction of the Federal Court to review decisions made under the Act.  The consequence of this decision is that in certain important respects the jurisdiction conferred on the Federal Court under Part 8 of the Migration Act is narrower than the jurisdiction conferred on the High Court under s 75(v) of the Constitution, narrower than the scope for review of administrative action at common law and narrower than the grounds for review of administrative action set out in the Administrative Decisions (Judicial Review) Act 1977 (Cth): Abebe v Commonwealth, at 522, per Gleeson CJ and McHugh J.  See M Crock, “Of Fortress Australia and Castles in the Air: The High Court and the Judicial Review of Migration Decisions” (2000) 24 Melb Uni LR 190, at 202-203.  More specifically, the statutory scheme precludes the Federal Court from reviewing a Tribunal’s decision on the ground of apprehended bias.  In a case where bias is alleged, the Court can grant relief only if the decision is affected by actual bias.

25                  In Sun v Minister, a majority of the Full Court (Burchett and North JJ; Wilcox J not deciding) held that a Tribunal’s decision had been affected by actual bias.  Burchett J pointed out (at 126) that actual bias, like any other conclusion of fact, may be established as an inference from the circumstances.  His Honour continued (at 126-127):

“I think [the Court] should interpret the words of s 476(1)(f) in their natural sense.  The use of the word ‘actual’ strongly suggests that the legislature was endeavouring to get away from the somewhat special concept of bias which is immanent in the case law.  The cases use expressions such as ‘real likelihood of bias’ in a sense designed to ensure ‘that it is not necessary that actual bias should be proved”: R v Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers’ Association [1960] 2 QB 167 at 187, per Devlin LJ.  In Australia, ‘real likelihood’ has itself been abandoned in favour of an even more special test, based on the principle that justice should be undoubtedly seen to be done, of ‘whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case’: Webb v The Queen (1994) 181 CLR 41 at 47; Gaisford v Hunt (No 2) (1996) 71 FCR 187.  The doctrine that has been developed, however it is stated, is commonly called the rule of apprehended bias.  In my opinion, the statute, when it used Devlin LJ’s expression ‘actual bias’, submitted 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 [v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281], 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.”

26                  North J stated (at 134) that

“[a]ctual 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.”

His Honour relied on a Canadian authority (Re Gooliah and Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224 (Man CA)) to support two propositions (at 135):

“proof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment.  It is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias.

Gooliah also demonstrates that actual bias does not necessarily involve deliberate, knowing, or wilful prejudice against an applicant.”

27                  North J considered that since a finding of actual bias may be made without a judge being aware of his or her prejudices or prejudgments, any “special reticence” in pursuing a case of actual bias should be diminished.  His Honour characterised (at 136) an unintended prejudgment as an error similar to other appellable errors, involving no impropriety or misconduct on the part of the decision-maker.  He stated that applicants “should not feel restricted by the nature of the complaint from pursuing” the ground of actual bias.

28                  There seems to be a significant difference of emphasis between the judgments of Burchett J and North J, although both stated the primary test of actual bias in similar terms.  Both judgments also seem to accept that errors in reasoning and fact-finding may be so egregious as to warrant an inference that the decision-maker has prejudged the case to the point of being unable to decide it impartially.  Burchett J nonetheless regarded a finding of actual bias as a “grave matter”, different from “mere error, or even wrong-headedness”.  North J, extrapolating from the notion that decision-makers may not recognise their own prejudices, appears to suggest that the boundaries are less clear. On one view, his Honour’s judgment extends an invitation to practitioners to challenge poor quality decision-making by invoking “unintended actual bias” as a ground of review.  If taken up, the invitation may require this Court to examine closely the factual findings made by the decision-maker in order to determine whether there are errors and, if so, whether their cumulative effect is to suggest unconscious prejudice or irreversible pre-judgment.

29                  Later decisions have not needed to resolve the apparent differences between the majority judgments in Sun.  They have, however, tended to emphasise that actual bias involves a closed mind or an unalterable pre-judgment.  In Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556, a majority of the Full Court held that the Minister’s decision to cancel a visa was affected by actual bias in consequence of statements he had made about the particular case he had to decide.  Spender J considered (at 566) the test of actual bias to be “plain”:

“A decision-maker is biased if the decision-maker has made up his or her mind on the matter to be decided.  If a decision-maker has prejudged the matter, a decision giving effect to that prejudgment is a biased decision.”

R D Nicholson J, the other member of the majority, after considering the judgments in Sun v Minister, stated the principle this way (at 598):

“for actual bias to be established there must be evidence of ‘a closed mind to the issues raised’, ‘preliminary views incapable of alteration’, prejudgment of the case at least in some respect, real although not necessarily intentional.”

30                  In Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125, Drummond J summarised the effect of the authorities as follows (at 133-134):

(a)                Actual bias exists where the decision-maker has prejudged the case against the applicant, or has 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.

(b)        The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation.

(c)        Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias.  Such bias may be subconscious, provided it is real.

(d)       It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party’s position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings.  Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case.”  (Citations omitted.)

31                  It is not necessary in the present case to explore the significance of the differences in emphasis between the majority judgments in Sun v Minister.  As will be apparent, I think that on the most generous view of “actual bias” the present applicant has failed to establish it.  But I wish to associate myself with the distinction drawn by Burchett J between actual bias and “mere error, or even wrongheadedness, whether in law, logic or approach”.

32                  One of the foundations of judicial review of administrative action in Australia is, in the words of Brennan J in Attorney-General v Quin (1990) 170 CLR 1, at 36, that

“the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone”.

In my view, it would threaten that principle, as well as do violence to the restrictive language of s 476(1)(f) of the Migration Act, to make the leap too readily from factual error or faulty reasoning (even serious factual error or misconceived reasoning) to a finding of actual bias. Such a finding implies a closed mind on the part of the decision-maker, or an irreversible prejudgment of some aspect of the case such as to make the decision-maker unable or unwilling to decide the case impartially.  The fact that the decision-maker does not realise that he or she has acted in this way does not detract from the seriousness of the finding.

33                  It is also important to appreciate, as Drummond J pointed out in Li v Minister, at 134-135, that a claim of actual bias must take into account the legislative framework within which tribunals operate.  In a court the impartiality of the judge is protected and preserved by rules limiting his or her involvement in the forensic process, including the gathering of evidence.  By contrast, tribunals have a variety of fact finding and information gathering functions that are characteristic of an administrative decision-making process.  They are often required to play an active role not only in eliciting information but in testing the reliability of evidence presented or relied upon by a particular applicant.  Their procedures necessarily differ from those of courts.

34                  The point can be illustrated by the present case.  Division 5 of Part 5 of the Migration Act, confers a variety of powers and imposes a variety of duties and limitations on the Tribunal: see s 359 (power to seek relevant information); s 359A (duty to give to the applicant particulars of information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review); s 360 (the applicant must be invited to appear and give evidence); s 361 (the applicant may request witnesses to be called, but the Tribunal is not bound to comply); s 366D (a person is not entitled to examine or cross-examine any person appearing before the Tribunal to give evidence).

35                  In accordance with the requirements of s 359A of the Migration Act, the Tribunal in the present case sent a letter to the sponsor on 19 August 1999.  The letter specified allegations that had been made against him and outlined evidence adverse to his claim to have maintained a genuine marital relationship with the visa applicant.  To an observer unfamiliar with s 359A of the Migration Act, or with the functions of the Tribunal, this procedure might perhaps suggest that the Tribunal had already formed an adverse view of the sponsor’s claims.  Certainly, the role performed by the Tribunal is not one that a court exercising judicial functions would be expected to perform.  But it cannot be indicative of actual bias to follow the very procedure mandated by the statute.

36                  There may, of course, be cases where the decision-maker exhibits such overt partisanship or hostility towards a person as to warrant an inference that the decision-maker has a closed mind or has prejudged the case.  In the absence of such partisanship or hostility, however, I think that considerable care should be taken before inferring from errors in reasoning or fact finding that a claim of actual bias has been made out.  I agree with Burchett J that such cases are likely to be truly exceptional.

THE PRESENT CASE

37                  Mr McHugh did not seek to show that the Tribunal had displayed overt partisanship or hostility towards the sponsor.  Rather, his contention was that the omissions or errors in the Tribunal’s reasoning were explicable only on the basis that the Tribunal had closed its mind to the issues and had formed intractable views adverse to the sponsor.  The matters identified by Mr McHugh, however, fall a long way short of warranting an inference of actual bias.  In essence, they amount to criticisms of the reasoning process of the Tribunal on factual issues that were within its province.  As I have endeavoured to explain, faulty analysis of the evidence by the decision-maker does not of itself establish that the decision was affected by actual bias.

38                  Of the four matters relied on by Mr McHugh to establish actual bias, one can be set aside.  Mr McHugh criticised the Tribunal for recording the sponsor’s statement that he had never stayed at his wife’s home in Cambodia because it lacked comfort.  In fact, the sponsor gave lack of comfort as one of two reasons for not staying in his wife’s home.  It is true that the sponsor also identified a second reason (alleged security considerations), but this did not nullify the first, which the Tribunal correctly recorded.  The significance of the sponsor’s reasons for not staying at his wife’s home was a matter for the Tribunal to assess.

39                  It is by no means obvious that a second matter relied on by Mr McHugh constituted an error by the Tribunal.  Mr McHugh criticised the Tribunal’s statement that the sponsor had given no indication that he would live with the visa applicant in Cambodia.  It is not at all clear that the Tribunal intended to assert that the sponsor had never said that he would never live in Cambodia.  A fair reading of the Tribunal’s reasons suggests that it intended simply to point out that there was no objective “indication”, over and above the sponsor’s self-serving statements, that he was prepared to join his wife in Cambodia.  This reading is consistent with the Tribunal’s earlier comment that “it seems that [the sponsor] has no desire to live with [the visa applicant] if she cannot come to Australia”.  In any event, it is difficult to regard the cryptic comment made by the sponsor in his letter of 18 February 1999 as an unambiguous statement of his intention, if necessary, to live with his wife in Cambodia.

40                  Mr McHugh correctly pointed out that the Tribunal, when outlining the evidence of the mutual commitment of the sponsor and the visa applicant, appears to have overlooked the fact that the telephone bills for 1998 and the first part of 1999 show that the sponsor had frequently made calls to the visa applicant during that period.  The evidence does not explain the reason for the error, but there is nothing to suggest that it was anything other than an oversight.  It is fair to say that the frequency of the sponsor’s telephone calls to the visa applicant played a relatively minor part in the Tribunal reaching its conclusion that the marriage was not genuine and continuing.

41                  Mr McHugh’s fourth criticism of the Tribunal’s reasoning concerned its grounds for rejecting the statutory declarations completed by persons in Cambodia.  Once again, however, what the Tribunal says about the provenance of the statutory declarations appears to be substantially accurate.  The declarations submitted to the Tribunal seem to have been drafted in Australia and faxed to Cambodia for execution.  Mr McHugh correctly noted that the Tribunal did not mention that there was evidence that at least some of the declarants had prepared certificates in the Khmer language and that these had been transmitted to Australia prior to the statutory declarations being drafted in English.  But that does not show that the Tribunal’s analysis was misconceived, much less that it was the product of a closed mind or prejudgment.

42                  When the English translations of the Khmer certificates are examined, it becomes readily apparent that there are significant differences between the content of those certificates and the statutory declarations ultimately made by the declarants.  Mr McHugh did not suggest that the evidence before the Tribunal explained why the changes had been made.  There is no requirement that the Tribunal trace in detail the provenance of every document to which it refers in its reasons.  Nor is there any basis for thinking that the Tribunal chose to ignore the Khmer language certificates.  It may well simply have taken the view that the differences between the certificates and the statutory declarations in their final form were such as to justify its scepticism about the reliability of the declarations.  Such a view was open to it.

43                  In my opinion, the criticisms made by Mr McHugh of the Tribunal’s reasons if taken at their highest, suggest merely that the Tribunal failed to refer to documentation that may have been relevant to some of the factual issues in the case.  The obvious explanation for such an omission is that the Tribunal, acting in good faith and without prejudging the issues, overlooked that material.  There is nothing in the evidence to support a contention that the Tribunal was systematically selective in its treatment of evidence with a view to giving effect to a preconceived judgment on the factual questions before it.  Nor is there anything to suggest that it was unconsciously prejudiced against the sponsor so as to be unable to give impartial consideration to his claims.

44                  The present is a different case than Sun v Minister.  In that case, Burchett J inferred actual bias from what he described (at 127) as

“the repeated drawing of extremely adverse conclusions against the appellant on what, upon examination, turn out to be the flimsiest grounds”.

His Honour characterised the Tribunal’s reasoning, leading to the conclusion that the appellant had fabricated his claims, as “quite absurd”, “extraordinary”, and “astonishing”.  It is perhaps not without irony that Burchett J considered it significant that the Tribunal had employed “highly coloured language” to reject the appellant’s claims.  According to Burchett J, the Tribunal’s errors were so numerous and so extreme as to suggest overwhelmingly that the Tribunal member

“proceeded to consider the case from a preconceived opinion and a fixed opinion so adverse to the [appellant] that he could not obtain a fair hearing.”

In my opinion, the circumstances of the present case do not allow any similar conclusion to be drawn.

45                  Finally, I referred earlier to Mr McHugh’s reliance on the fact that draft reasons were prepared by or for the Tribunal before its decision was handed down.  It is clear enough that the draft was prepared with the assistance of a group known as “the case team”.  It is also clear enough that the draft was prepared in conjunction with the letter sent to the sponsor pursuant to s 359A of the Migration Act.  Far from the draft indicating that the Tribunal had a fixed and preconceived view of the sponsor’s credibility, it formed part of the process, mandated by statute, whereby the sponsor was given an opportunity to comment on matters apparently adverse to him.

CONCLUSION

46                  The application must be dismissed.  The sponsor must pay the Minister’s costs.

Associate:

Dated:              27 July 2000