FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2018] FCA 1718

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding, Mr Gurdeep Singh, has applied unsuccessfully for a Partner (Residence) (Class BS) (Subclass 801) visa. His wife was the sponsor.

2    A delegate of the Minister refused Mr Singh that visa in October 2015. Mr Singh sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”). That Tribunal affirmed the delegate’s decision in November 2016. The Tribunal was not satisfied that Mr Singh and his sponsor had a mutual commitment to a shared life to the exclusion of others and was not satisfied that the relationship was genuine and continuing. The Tribunal concluded that Mr Singh did not satisfy the requirements of cl 801.221(2)(c) of Sch 2 to the Migration Regulations 1994 (Cth), namely the requirement that he be “the spouse … of the sponsoring partner”.

3    Mr Singh then sought review of the Tribunal’s decision by the Federal Circuit Court of Australia. That Court, in an ex tempore judgment delivered in March 2018, dismissed the application: Singh v Minister for Immigration and Border Protection [2018] FCCA 776.

4    Mr Singh now appeals to this Court.

5    The appeal is to be dismissed with costs.

The grounds of review & appeal

6    Before the Federal Circuit Court, Mr Singh claimed that the Tribunal:

    erred in placing reliance on evidence that had no probative value;

    applied the wrong test to the statutory requirement that Mr Singh and his sponsor had a genuine commitment to a shared life as husband and wife;

    wrongly rejected a large amount of corroborative evidence without any rational or logical basis, which was said to give rise to a reasonable apprehension of bias; and

    wrongly rejected a large amount of corroborative evidence without any rational or logical basis, and therefore reached an irrational or unreasonable decision.

These four grounds are substantially repeated on appeal before this Court. The Appellant alleges that the Federal Circuit Court Judge erred in rejecting each of the same arguments.

7    Each of these Grounds overlapped one with the other.

The reasons of the Tribunal & its reservations as to the claims made

8    A consideration of the Grounds of Appeal necessarily starts with the reasons provided by the Tribunal and, more importantly, the reasons of the primary Judge.

9    One of the Tribunal’s reasons which assumed particular relevance was the following:

[46]    The Tribunal has considered all the circumstances of this relationship. The Tribunal has formed the view that the parties had not been entirely truthful in their evidence to the Tribunal. The Tribunal is also of the view that the applicant has not been truthful in his explanations concerning the site visit. The Tribunal accepts that others are aware of the relationship and believe it to be a genuine one. The Tribunal accepts that the parties had socialised together and represent themselves to others as being in a genuine relationship. The Tribunal acknowledges the sponsor’s pregnancies. The Tribunal accepts that the parties live at the same address and do some household chores together and that there is a degree of financial support provided to each other. Against these considerations, the Tribunal has formed the view that the applicant is not a person of credibility and that he is being deliberately untruthful in relation to the circumstances of the site visit. The Tribunal has formed the view that the applicant is using the present relationship solely as a means of obtaining the Australian residence. The Tribunal has formed the view that before the expiry of his Student visa, the applicant decided to seek another option of remaining in Australia and formed this relationship for that purpose only. Although that does not necessarily preclude the existence of a spousal relationship, in the circumstances of this case, the Tribunal is not satisfied that the applicant views the relationship as a long term one or that he has any commitment to this relationship. The Tribunal places significant weight on the fact that the applicant did not inform his family about the relationship at the time of the site visit and made very little effort, if any, to introduce and maintain any relationship between his family in India and the sponsor. The applicant’s conduct supports the Tribunal’s view that he does not view this relationship as a long term one and lacks commitment to it. The Tribunal is not satisfied that the parties rely on each other for comfort and emotional support.

10    Although Mr Singh’s Solicitor in the present case sought to focus attention upon this paragraph, a consideration of the Tribunal’s reasons for decision cannot properly be undertaken without some consideration also being given to the entirety of the Tribunal’s reasons and the repeated reservations expressed by the Tribunal in respect to the claims being made.

11    To construe the reasons of the Tribunal in the present case – including that part of the reasoning process upon which attention was focussed in submissions – divorced from the reservations expressed by the Tribunal as to the evidence being given by Mr Singh would be to impermissibly construe the reasons with an eye attuned to the detection of error (cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ) rather than by a fair and common sense assessment of the reasons in their entirety.

12    The reservations expressed by the Tribunal included the following:

    its assessment that “the timing of this relationship [was] problematic” and it not being prepared to accept that the date of the marriage on 13 March 2012 and the expiration of Mr Singh’s student visa on 15 March 2012 was “a matter of pure coincidence” (at para [8]);

    its “concerns [being] exacerbated by the speed with which [the] relationship developed”, with Mr Singh and his sponsor first meeting in August 2011 and Mr Singh’s claim to have committed to the relationship in December 2011 (at para [9]); and

    its “view that the parties had been less than truthful in their evidence” and there being “significant inconsistencies in their oral evidence” which were then detailed (at para [10]).

In addition to these reservations:

    para [46] itself exposes further reservations as to whether Mr Singh and his sponsor had been “entirely truthful”.

These reservations form part of the backdrop against which the Tribunal reached its ultimate conclusion.

13    That backdrop assumes particular importance given the need for the Tribunal to make an assessment of the reliability of what was being said by Mr Singh and the woman sponsoring his application and of how “genuine” their relationship was. That assessment was informed not only by reference to the documents before the Tribunal but also by reference to their account of their relationship and what they were saying about the genuineness of that relationship.

The definition of spouse – s 5F

14    Central to the decision made by the Tribunal was the question of whether Mr Singh was the “spouse” of his “sponsoring partner”. That question involved a consideration of s 5F of the Migration Act 1958 (Cth) and reg 1.15A of the Migration Regulations as they stood at the time the Tribunal made its decision.

15    Section 5F of the Migration Act provided as follows:

Spouse

(1)    For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

(2)    For the purposes of subsection (1), persons are in a married relationship if:

(a)    they are married to each other under a marriage that is valid for the purposes of this Act; and

(b)    they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(c)    the relationship between them is genuine and continuing; and

(d)    they:

(i)    live together; or

(ii)    do not live separately and apart on a permanent basis.

(3)    The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

16    Regulation 1.15A of the Migration Regulations provided as follows:

Spouse

(1)    For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

(2)    If the Minister is considering an application for:

(a)    a Partner (Migrant) (Class BC) visa; or

(b)    a Partner (Provisional) (Class UF) visa; or

(c)    a Partner (Residence) (Class BS) visa; or

(d)    a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

(3)    The matters for subregulation (2) are:

(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 person in the relationship owes any legal obligation in respect of the other; and

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

(b)    the nature of the household, including:

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

(ii)    the living arrangements of the persons; and

(iii)    any sharing of the responsibility for housework; and

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

(i)    whether the persons represent themselves to other people as being married to each other; and

(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; and

(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.

(4)    If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

A spousal relationship – cl 801.221(2)(c)

17    In Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5, (2016) 236 FCR 303 at 305 (“Angkawijaya”), Kenny and Griffiths JJ commenced their analysis of what constitutes a “genuine spousal or de facto relationship” by reference to lyrics made famous by Frank Sinatra: “Love and marriage, love and marriage / Go together like a horse and carriage”. Another assessment is that of Abraham Lincoln. When asked where he was going by his landlord’s son as he was dressing for his marriage to Mary Todd in 1842, he is said to have replied, “To hell, I suppose”: Donald DH, Lincoln (Simon & Schuster, 1995) p 93.

18    For present purposes, however, the task of the Tribunal was the far more mundane task of applying the statutory language relevantly found in the Migration Act and Migration Regulations.

19    Section 65(1)(a)(ii) of the Migration Act required the Minister to be satisfied (inter alia) that a visa applicant satisfied the “criteria … prescribed by this Act or the regulations”.

20    The criteria in need of satisfaction in the present case were the criteria set out in cl 801.221 of Sch 2 to the Migration Regulations. Clause 801.221(2)(c) imposed a requirement that “the applicant is the spouse or de facto partner of the sponsoring partner”.

21    A principal Ground of Appeal agitated in the present proceeding is whether the Tribunal applied the “wrong test” when concluding that Mr Singh did not meet the requirement imposed by cl 801.221(2)(c) and that the Federal Circuit Court Judge erred in not so concluding. Clause 801.221(2)(c), it was submitted, required an assessment to be made as at the date of decision as to whether an applicant is the “spouse” of the “sponsoring partner”.

22    On the facts of the present case, the Tribunal was satisfied that Mr Singh and the sponsor of his application “were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a)” (at para [7]). But it was not satisfied that Mr Singh and his sponsor had “a mutual commitment to [a] shared life to the exclusion of other” and was not satisfied that “their relationship is genuine and continuing” (at para [47]). These findings mirror the language of s 5F(2)(b) and (c) of the Migration Act.

23    The error said to have been committed by the Tribunal in reaching its state of dissatisfaction as to the relationship had two limbs, namely that the Tribunal:

    made an assessment of the motivation on the part of Mr Singh in initially entering into the relationship and that that assessment thereafter “poisoned” its conclusions as to whether the relationship was “genuine and continuing” as at the time of decision; and

    failed to assess the genuineness of the relationship as at the time of its decision.

The findings made by the Tribunal as to events surrounding the commencement of the relationship between Mr Singh and his sponsoring partner, it was submitted, were such that the Tribunal applied the “wrong test” by not focusing its consideration on the nature of the relationship as at the date of its decision.

24    The Tribunal was clearly sceptical of the reasons why Mr Singh initially entered into the marital relationship, hence its finding (for example) that the date of marriage on 13 March 2012 and the date of expiration of his existing visa on 15 March 2012 was not “pure coincidence” (at para [8]). The Tribunal was of the view that Mr Singh was “using the present relationship solely as a means of obtaining the Australian residence” (at para [46]).

25    Each of the limbs to the present argument should be separately considered.

26    As to the first limb, no error is exposed in the Tribunal taking into account the motivation of Mr Singh in entering into the relationship as part of its reasoning process in not being satisfied that Mr Singh “views the relationship as a long term one or that he has any commitment to this relationship” (at para [46]).

27    In Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon (unreported, Northrop, Wilcox and French JJ, 8 May 1990) (“Dhillon”) their Honours observed:

The primary judge referred in his reasons to the concept of marriage in Australian law, citing the remarks of Street C.J. in R. v. Cahill [1978] 2 N.S.W.L.R. 453 at p.458. As his Honour there pointed out, people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as ‘community expectations’. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others. Mr Jolly never addressed that question. Accordingly, it seems to us that he failed to take into account a relevant consideration. This was the view of the learned primary judge, his Honour concluding that Mr Jolly “did not duly consider the nature of a marriage relationship and misdirected himself as to the nature of the discretion to be exercised by him.”

28    Subsequently, in Angkawijaya the Full Court dismissed an appeal from a decision in which it had been held that the Tribunal had erred in imposing “its own value judgment in applying the relevant legislative provisions”: [2016] FCAFC 5 at [6], (2016) 236 FCR at 305 per Kenny and Griffiths JJ. Allsop CJ concluded that a “couple may have a commitment to each other to a shared life together as partners in the absence of what one might call emotional or romantic love”: [2016] FCAFC 5 at [3], (2016) 236 FCR at 304. Kenny and Griffiths JJ considered the earlier decision in Dhillon and concluded that in that case the “Court found … that it was not necessarily inconsistent with a genuine relationship that one or both parties entered into it with the hope of becoming eligible to reside in Australia”: [2016] FCAFC 5 at [44], (2016) 236 FCR at 315. Provided that “the relevant time is firmly kept in mind”, their Honours saw “no reason why the decision-maker should not take into account, together with all other relevant circumstances of the relationship, the motivation of one or both of the parties for entering into the relationship”: [2016] FCAFC 5 at [64], (2016) 236 FCR at 320.

29    As to the second limb to the present argument, it is concluded that the Tribunal did not permit its findings as to the initial motivation on the part of Mr Singh in entering into the marital relationship and the “coincidence” as to the expiration of the visa and the date of marriage to later “poison” its conclusion as to whether at the time of decision there was a genuine relationship. Both at the outset of its reasons and in its concluding remarks the Tribunal acknowledged that cl 801.221(2)(c) “requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’” (at para [5]). Similarly, at para [47] the Tribunal expressly stated that it was “not satisfied that at the time of this decision the parties are in a spousal relationship”.

30    No error, it is concluded, is discernible in the Tribunal (for example) taking into account its assessment that Mr Singh was “using the present relationship solely as a means of obtaining the Australian residence” (at para [46]). That was but one of the considerations it took into account, albeit an important consideration, when reaching its ultimate assessment of the “mutual commitment” of Mr Singh and his sponsor and its assessment of whether their relationship was “genuine and continuing”. So much is apparent from the Tribunal’s acknowledgment (at para [46]) that what it concluded were attempts made by Mr Singh “to seek another option of remaining in Australia” did not “necessarily preclude the existence of a spousal relationship”. This is an express recognition on the part of the Tribunal that circumstances may change from those prevailing at the date of the marriage in March 2012 and at the date of the Tribunal’s decision over three years later in November 2016.

31    On the facts of the present case, the task entrusted to the Tribunal was to make findings of fact and to reach conclusions directed to (inter alia) s 5F(2)(b) and (c) of the Migration Act. Relevant to that conclusion was (inter alia) an assessment of whether Mr Singh was “using the present relationship solely as a means of obtaining the Australian residence”. Also of relevance was an assessment of the genuineness of the relationship “at the time of [the] decision”. A finding was made adverse to the claims made by Mr Singh. But it was a finding open to be made on the evidence available and was a finding of relevance to an ultimate conclusion being reached as to whether Mr Singh satisfied the requirements imposed by s 5F(2)(b) and (c) of the Migration Act and thereafter the requirement imposed by cl 801.221(2)(c) of Sch 2 to the Migration Regulations.

32    The Tribunal, it is concluded, did not apply the “wrong test”. It clearly acknowledged that an assessment of the genuineness of the relationship had to be made “at the time of this decision” (at paras [5] and [47]) and that was the assessment it made. The assessments it made of the conduct of Mr Singh at the outset of the relationship did not thereafter “poison” the Tribunal’s later deliberations such that it did not in fact focus its attention upon the nature of the relationship as at the date of its decision. There is no error discernible in the primary Judge reaching a like conclusion: [2018] FCCA 776 at [23] to [26].

A reasonable apprehension of bias & unreasonableness

33    Separate from the challenge made to the Tribunal having applied the “wrong test” when considering cl 801.221, and assuming that such an argument were to be rejected, it was argued on behalf of Mr Singh that the Tribunal had manifest a reasonable apprehension of bias in approaching its task. The alternative argument was also advanced in terms of the decision of the Tribunal being manifestly unreasonable. Such arguments clearly overlapped with the submission (for example) that the Tribunal’s assessment of the motivation of Mr Singh in entering into the marriage “poisoned” the Tribunal’s consideration of later events.

34    It was contended on behalf of Mr Singh that a reasonable apprehension of bias or unreasonableness emerged in respect to either or both of the Tribunal’s findings in respect to:

    the weight to be given to a report of a site visit prepared by two officers of the Department of Immigration and Border Protection (“Department”) gathered during a visit to Mr Singh’s village and his home in India in April 2015 (“Site Visit Report”); and/or

    the manner in which it made findings of fact when considering the “circumstances of the relationship” as required by reg 1.15A(2) and (3) of the Migration Regulations.

Each of these arguments should also be considered separately.

35    It is nevertheless prudent to recall at the outset that an argument that a decision-maker has manifested a reasonable apprehension of bias is an allegation that must be “firmly established”: Re JRL, Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. See also (1986) 161 CLR at 364 per Wilson J; at 371 per Dawson J. That which is required of a decision-maker is a mind “open to persuasion”: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, (2001) 205 CLR 507 at 531 to 532. Gleeson CJ and Gummow J there observed:

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

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

(Footnote omitted.)

36    It is also prudent to recall at the outset that any argument that an administrative decision is vitiated by reason of it being unreasonable in a legal sense is an argument which necessarily has to recognise that there is an area of “decisional freedom” which remains a matter for the decision-maker alone: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [62], (2016) 240 FCR 158 at 171 per Allsop CJ, Griffiths and Wigney JJ. As French CJ said in Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 at 351, unreasonableness as a ground of judicial review:

[30]    … is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.

See also: [2013] HCA 18 at [66], (2013) 249 CLR at 363 per Hayne, Kiefel and Bell JJ.

The site visit – para [46]

37    Two officers from the Department, Ms Karen Brettle and Mr Deepak Balan, visited Mr Singh’s home village in April 2015.

38    According to the Site Visit Report, during that visit the officers introduced themselves to the “village head” and thereafter to Mr Singh’s brother, sister-in-law and mother. The “village head” knew of Mr Singh’s family and had heard of Mr Singh. He advised that he had “never … heard of the marriage of [Mr Singh], in India or overseas” and that to his knowledge Mr Singh had never returned to India after he had left for overseas. The family members told the two officers (inter alia) that they had “no knowledge of what [Mr Singh] does at present, working or studying” and that Mr Singh “has never been married, in India or Australia”. They also said that they were “confident” that if he “gets married he will inform them”. The family members “confirmed that they were able to comprehend everything [the officers] asked and told them”.

39    Mr Singh was thereafter advised by letter dated 12 May 2015 that the Department had “received unfavourable information which does not support your application”. The contents of the Site Visit Report were then put to Mr Singh and his comments were invited. A response was provided on 10 June 2015. Mr Singh maintained that he had spoken to his sister-in-law who denied saying that he lived in Melbourne. An explanation of some of the information in the Site Visit Report was also provided.

40    Questions directed to the Site Visit Report were also asked during the course of the hearing before the Administrative Appeals Tribunal. One course of questioning advanced by the Tribunal Member was directed to the statement in the Report that the family members understood what they had been asked and told. The Tribunal Member at one point told Mr Singh that he was “not convinced by the explanations that you are giving to me” as they “don’t sound plausible to me”.

41    In its reasons for decision the Tribunal placed “significant weight on the fact that the applicant did not inform his family about the relationship at the time of the site visit and made very little effort, if any, to introduce and maintain any relationship between his family in India and the sponsor” (at para [46]).

42    Before the primary Judge, it was submitted on behalf of Mr Singh that the Report was unreliable because it contained “obvious inaccuracy”, namely:

    a statement that Mr Singh’s mother and brother said he was living in Melbourne.

The reliability of the Report was also challenged by reason of:

    the officers from the Department speaking a different language to that of the villagers and family members, the officers speaking Hindi and English and the villagers and family speaking Punjabi; and

    the fact that Mr Singh’s mother was worried about his safety because she was not sure who the officers were and that she thought they were asking whether Mr Singh and his wife had been married in India. The mother was also said to have been “deeply concerned at receiving a visit from a ‘white lady’ given the recent news of violence against Indian students in Australia”.

43    It was also submitted on behalf of Mr Singh to this Court that the Report was inaccurate because it contained:

    an error as to the family composition, the Report recording a family composition not consistent with that disclosed in the original application form completed by Mr Singh and submitted to the Department in March 2012.

44    The written submissions filed on behalf of Mr Singh in this Court stressed that the case sought to be advanced was “not that the Tribunal should have given the site visit report less weight than it did, but rather that a reasonable decision maker could not have given it any weight”. It was submitted that “the site visit report had no probative value”. It was submitted that the Tribunal made:

    “assumptions about the visit that were not supported by the evidence”; and

    assumptions about “how the interviewees would behave during and after the visit that took no account of cultural and educational differences”.

To give the Site Visit Report any weight, it was submitted, exposed that the Tribunal acted on evidence that was of no probative value, a reasonable apprehension of bias on the part of the Tribunal or legal unreasonableness as to the conclusion reached.

45    The difficulty with that submission is at least twofold, namely:

    Mr Singh was given repeated opportunities to make submissions as to the manner in which the information contained in the Site Visit Report should be assessed and he availed himself of those opportunities, including when he was before the Tribunal. The concerns the Tribunal had about the arguments being put by Mr Singh were squarely raised. But one of the concerns raised by the Tribunal with Mr Singh during the course of the hearing was that “[n]obody said during the interview that they didn’t understand” and that the family members “proceeded with the interview, they agreed to answer questions”; and

    whatever reservations different decision-makers may have expressed in respect to the Site Visit Report, no submission can be accepted that any decision-maker would manifest a reasonable apprehension of bias or would be acting unreasonably unless they placed the Report entirely to one side.

In entertaining submissions as to how it should approach the Report, the Tribunal in its reasons for decision manifested a mind open to what (if any) weight it should give to it. The Tribunal entertained submissions made on behalf of Mr Singh and resolved those submissions.

46    Although procedural fairness requires both an opportunity to be heard and an opportunity to be heard before a decision-maker with a mind open to persuasion, a conclusion not open on the present facts is that the hearing before the Tribunal – a hearing which has all the hallmarks of one conducted in a procedurally fair manner – was nevertheless a hearing before a Tribunal Member whose mind was not genuinely pursuing lines of inquiry with a view to properly understanding the facts presented. Although there may be a factual context which would dictate a contrary conclusion, it is difficult to conclude that an administrative hearing which has been conducted in a manifestly procedurally fair manner – and during which a party had been given an opportunity to comment upon the evidence presented and an opportunity to advance submissions as to the weaknesses of such evidence – was nevertheless one conducted by a decision-maker not interested in genuinely considering the information communicated during the course of that hearing.

47    The submissions advanced on behalf of Mr Singh are rejected.

The circumstances of the relationship – Regulation 1.15A

48    Regulation 1.15A of the Migration Regulations provides that “all of the circumstances of the relationship” are to be taken into account when forming a view as to whether (inter alia) the condition in s 5F(2)(c) of the Migration Act exits. Regulation 1.15A(3) sets forth, in a non-exhaustive manner, some of those “circumstances”.

49    The Tribunal in the present case considered each of the “circumstances” there set forth. But in doing so, so it is again said on behalf of Mr Singh, it discharged its task in such a manner as to manifest a reasonable apprehension of bias or acted in a legally unreasonable way.

50    When considering the way in which the Tribunal considered the “circumstances” sets forth in reg 1.15A(3), essentially three things are said on behalf of Mr Singh, namely:

    that the findings made by the Tribunal, with limited exceptions, were “either favourable or neutral in respect of the … claims”;

    there was “a substantial amount of documentary evidence” which corroborated the claims being made but which was dismissed by the Tribunal; and

    the material was said to be “compellingly corroborative”.

The materials supporting the claims, it was said, were weighed by the Tribunal against “alleged discrepancies in minor details of evidence”. It was submitted on behalf of Mr Singh that:

On a fair reading of the Tribunal’s reasons it is clear that a reasonable lay observer could apprehend that the Tribunal had a closed mind as to the Appellant’s intention in forming the relationship and was prepared to dismiss any evidence to the contrary as part of a well-planned scheme.

(Footnote omitted.)

51    Even if it were to be accepted that there was a substantial amount of corroborative material available to the Tribunal, and even if it were to be accepted that a contrary conclusion to that presently reached and a conclusion reached in favour of Mr Singh was open to the Tribunal, the decision in fact reached by the Tribunal and the findings and reasons it provided do not expose any basis for a contention that it manifested a reasonable apprehension of bias or acted unreasonably. The findings and reasons of the Tribunal in respect to the “considerations” set forth in reg 1.15A expose a careful and balanced consideration of the evidence available. No conclusion is open that those findings and reasons are anything other than a fair and balanced assessment of the evidence before it. None of the findings made by the Tribunal expose anything other than the Tribunal making findings of fact relevant to the “circumstances of the relationship” and the “matters” set forth in reg 1.15A.

CONCLUSIONS

52    Although the manner in which the oral submissions unfolded on appeal departed somewhat from the written submissions which had been filed, and did so in a manner which rather helpfully focussed attention on the substance of the Appellant’s case, it is concluded with reference to the Grounds of Appeal that:

    the evidence before the Tribunal, including the Report of the site visit in April 2015, had “probative value”, and was not such that the placing of reliance upon the evidence exposed an apprehension of bias or that the Tribunal acted unreasonably;

    the Tribunal did not apply the “wrong test” and committed no error in the manner in which it construed and applied s 5F(2) of the Migration Act;

    the decision of the Tribunal was not affected by a reasonable apprehension of bias; and

    notwithstanding the extent of the corroborative evidence supporting Mr Singh’s claim as to the “genuineness” of his relationship, the making of the findings of fact by the Tribunal, including those findings made in respect to reg 1.15A of the Migration Regulations, do not expose any irrationality or unreasonableness.

The Federal Circuit Court Judge was correct in rejecting much the same arguments.

53    There is no reason why costs should not follow the event. Mr Singh should pay the costs of the Respondent Minister.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:

Dated:    13 November 2018