FEDERAL COURT OF AUSTRALIA
Zaki v Minister for Immigration and Border Protection [2019] FCA 1822
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Application for extension of time granted.
2. Application to adduce fresh evidence dismissed.
3. Appeal dismissed.
4. The appellant pay the first respondent's costs to be assessed, if not agreed, by a Registrar of this Court on a lump sum basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BANKS-SMITH J:
1 Mr Zaki originally came to Australia on a student visa in 2011 which was due to expire on 30 October 2013.
2 In August 2012, Mr Zaki met the sponsor, an Australian citizen. They married in September 2013, and there is no question that the marriage was lawful. The sponsor then sponsored Mr Zaki's application for a partner (temporary) (class UK) visa. That application has proceeded in a somewhat convoluted manner.
3 The partner visa application was rejected by a delegate of the Minister in 2014. An application for review by the Tribunal was originally refused on jurisdictional grounds, but by order of the Federal Circuit Court the application was remitted to the Tribunal.
4 On the remittal, Mr Zaki was assisted by a representative before the Tribunal. Evidence by way of statutory declarations, photos and letters was also provided. The Tribunal conducted a hearing at which Mr Zaki and a number of other witnesses gave evidence.
5 The Tribunal affirmed the decision of the delegate to refuse the partner visa application.
6 Mr Zaki sought review from the Federal Circuit Court. He was not represented at that point. His grounds of review comprised unparticularised allegations as to jurisdictional error and allegations of apprehended bias on the part of the Tribunal. That review application was unsuccessful.
7 Mr Zaki then instituted this appeal. The Court adjourned the listing of the appeal so that Mr Zaki could obtain legal advice. Mr Zaki was able to obtain some assistance from direct access counsel, but the assistance was limited to the preparation of an amended proposed notice of appeal and written submissions.
8 In the meantime Mr Zaki returned to Pakistan as he had no current visa. He has pursued this appeal from Pakistan, sought to provide additional documents to the Court, attended hearings by telephone and maintained regular contact with the Court by email. I note these matters because although self-represented and appearing from abroad, he has actively participated in the proceedings.
Some preliminary matters - applications
9 Mr Zaki filed his application in this Court 47 days out of time. An extension of time is therefore required. Mr Zaki also sought leave to adduce new evidence on appeal. However, it was directed (and accepted by the Minister) that the hearing proceed on the basis that if an extension were to be granted, then the appeal was to be determined. Accordingly, I heard full argument on the extension application, the application to adduce new evidence and the appeal proper.
10 In considering whether to grant an extension of time for an appeal, the court will be guided by the following factors: the length and explanation for the delay, any prejudice that the respondent might suffer due to delay and the prospects of the case succeeding if an extension were granted. There are many authorities to this effect: see in particular Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349; and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. The proposed appeal should have such prospects of success so as not to render the extension of time an exercise in futility: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9].
11 The application to adduce new evidence was twofold. First, Mr Zaki sought to tender the transcript of the hearing before the Tribunal. The transcript was not before the primary judge. The importance of the transcript in the context of Mr Zaki's bias submissions was self-evident. The Minister did not oppose leave being granted to rely on the transcript, and the transcript and audio of the interview were tendered and received in evidence. Second, Mr Zaki prepared a large bound volume of additional documents (some 500 pages) plus two disks said to contain photos/videos, and said to evidence his relationship with the sponsor. None of those materials were before the Tribunal or primary judge. For reasons addressed below, I have declined the application to receive them as new evidence on the appeal.
Partner visa criteria
12 The criteria for a partner visa are set out in Schedule 2, Part 820 of the Migration Regulations 1994 (Cth).
13 At the date of the application, under cl 820.211(1)(b), an applicant was required to meet the requirements of any of subclauses (2), (5), (6), (7), (8) or (9).
14 Relevantly, subclause 2 provides:
An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
…
(c) the applicant is sponsored:
(i) if the applicant's spouse or de facto partner has turned 18 - by the spouse or de facto partner;
…
15 'Spouse' is defined under s 5F of the Migration Act 1958 (Cth), which provides as follows:
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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 The Migration Regulations set out arrangements for the determination of the requirements in s 5F(2) at reg 1.15A. Under reg 1.15A(2), the Minister or his delegate must consider all of the circumstances of the relationship, including the matters set out reg 1.15A(3). Regulation 1.15A(3) provides:
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.
17 The effect of this framework is that in addition to being satisfied that an applicant is legally married, the Tribunal was required to conclude that the marriage was genuine, having regard to the factors set out in the extensive and inclusive list in reg 1.15A(3).
Some principles when considering criteria
18 Regulation 1.15A(3) requires that the Tribunal 'consider' each of the matters it covers. Such an express statutory requirement to 'consider' imports an obligation to give proper, genuine and realistic consideration to the relevant matters, and involves an active intellectual process directed at the relevant matters: see Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 at [43]; and Tickner v Chapman (1995) 57 FCR 451 at 462. It gives rise to a more precisely defined duty than the general duty of the Tribunal to consider matters in connection with satisfying itself that a decision should be made: Tickner v Chapman at 462.
19 The requirement that the Tribunal consider the particular circumstances set out in reg 1.15A(3) was addressed in detail in He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41. The following extract is instructive:
[76] In our opinion, the requirement that the Tribunal 'consider' the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of 'the nature of the household', the Tribunal must ask:
(i) whether there are children and whether there is any joint responsibility for their care and support;
(ii) what the living arrangements of the persons are; and
(iii) whether and to what extent there is sharing of the responsibility for housework.
The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a 'married relationship'. In some cases, the Tribunal's answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.
[77] So far, we have discussed the requirement for the Tribunal to make findings in respect of the specific matters in reg 1.15A(3) numbered with Roman numerals. It is also necessary to consider whether findings are required in respect of the principal matters in paras (a)-(d), namely the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons' commitment to each other. These matters are expressed broadly and it is less obvious that they pose questions that are required to be answered. Nevertheless, they should be seen as doing so, having regard to the questions that are then immediately posed in connection with each of the principal matters. In our opinion, the requirement to 'consider' the principal matters means that a decision-maker must make findings upon each of them. In many cases, the requirement to make findings upon the principal matters may be satisfied by the course of making findings upon the specific matters. For example, the Tribunal may make a finding that the nature of the household is one where the parties have no children, they live together and they share responsibility for housework equally.
20 It is not necessary for the findings to be structured in a manner that formulaically addresses each of the relevant matters in turn: He at [82].
21 If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3), it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to 'consider' all of the circumstances of the relationship, including all the matters set out in reg 1.15A(3).
22 However, where the Tribunal sets out no express finding as to a matter, it may be possible to draw an inference from the Tribunal's reasons as a whole that the Tribunal did make a finding on that matter: He at [85]-[86].
Before the Federal Circuit Court
23 Mr Zaki raised three grounds of review before the Federal Circuit Court. These were:
(a) an unparticularised ground asserting that the Tribunal and delegate made errors in their interpretation of the law;
(b) that the Tribunal member was biased against Mr Zaki and his relationship, leading the decision and reasons to be unfair; and
(c) important points in the applicant's submissions, including legal evidence and witness statements, were not considered by the Tribunal.
24 The primary judge found that as the first ground was not particularised, it lacked meaningful substance and dismissed that ground.
25 As to the second ground, the primary judge noted that it was not particularised, and so did not meet the requirement that an allegation of bias should be distinctly made and clearly proved: see Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69]. Additionally, Mr Zaki had not filed a copy of the transcript of proceedings in the Tribunal before the primary judge. Placing reliance on the decision in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67] the primary judge held that he could not make a finding of apprehended bias purely on the basis of the Tribunal's reasons. Accordingly, the primary judge dismissed this ground.
26 As to the third ground, the primary judge similarly noted that no particulars had been provided. Having regard to the Tribunal's reasons and Mr Zaki's oral submissions, the primary judge was unable to identify any relevant considerations that the Tribunal failed to take into account in such a way as might have affected the outcome of the review. Accordingly, the primary judge dismissed this ground and the application.
The ground of appeal
27 The amended ground of appeal upon which the appeal proceeded seeks to echo the apprehended bias claim made before the primary judge, although with more particularity:
The Federal Circuit Court erred in failing to find that the second respondent's decision to affirm the refusal of the appellant's application for a Partner visa was made in circumstances such that a fair minded lay person might reasonably have apprehended that the second respondent might not have been bringing an impartial and unprejudiced mind to the decision.
Particulars
During the hearing of the application on 18 February 2016 the second respondent:
(a) Without any evidentiary basis and close to the commencement of the hearing, before any detailed evidence had been provided, said to the appellant (Hearing Transcript at pp. 3-6):
• could it be that you only entered this relationship in order to secure permanent residency in Australia because you couldn't afford to study?
• the signs to me are that this seems to be based on a desire to achieve for your family a migration outcome, and possibly solely a migration outcome.
• what I need to be satisfied of is that you haven't entered this relationship for the sole purpose of getting residency. Do you understand what I'm saying? That would meant that your whole relationship - if I found that I would find that your relationship is fraudulent, and that you only married [the sponsor] to get permanent residency, to get your parents here as well.
• You may want to save your family from there. I - I - I don't know. It's - I'm not saying you're selfish. You could be doing it for a higher good, so to speak.
• that's why I keep asking you ... whether this could have been simply a means for you to remain in Australia. [The sponsor] is not of your culture, she's not of your faith, so, why did you think that she would be a suitable spouse for you? Was there some other reason, like getting a visa?
• Well, look, I - I - that's - I'm sorry, but, I don't give any weight to that. (that the sponsor had a tattoo of Mr Zaki's name). Anybody can put anything on a tattoo, and then have it removed.
(b) Suggested that the appellant had used Facebook to find a wife for the purposes of securing a visa (Hearing Transcript at pp 7-8).
(c) Suggested that the appellant had given his mobile telephone number to his sponsor when they first met because:
... you had a motivation for entering this relationship to start a relationship just to get a visa to secure your residency in Australia. Otherwise, wouldn't you be a bit more cautious and say, 'Well, I really - it's going - if I meet this person, and we start a friendship that goes deeper, then, I'm a - from a different background' (Hearing Transcript at p. 10).
(d) Queried whether a person of the appellant's cultural background would have a platonic relationship with a female (Hearing transcript at p. 14).
(e) Criticised the appellant and his sponsor for failing to undergo assisted reproductive technology to have a child (Hearing transcript at pp. 22-23).
(f) Without evidence, accused the appellant of misleadingly painting a 'fairy-tale' picture of his relationship with his sponsoring wife when in fact the appellant had been explicit in his evidence that there had been difficulties in the relationship because of his wife's depression (Hearing transcript at p. 43).
(g) Commented that, while the Tribunal thought that the sponsor was being honest, she was not sure that the appellant was being honest (Hearing transcript at p. 71).
28 By way of counsel's written submissions, Mr Zaki submitted that the claim of apprehended bias is based on both the conduct of the hearing before the Tribunal and aspects of the written decision. Further, it was made clear in those submissions that Mr Zaki had concerns as to the manner in which corroborative and other evidence was allegedly rejected by the Tribunal. So much can be seen from the following extract from the submissions:
90. The appellant had provided the Tribunal with a chorus of witnesses who attested to the genuineness of their relationship and to the fact that they had been living together. … Yet the Tribunal quite unfairly asserted, at [80], that - other than the statements made by the appellant and [the sponsor] - little further probative evidence had been submitted that they had at any time shared a household as spouses.
91. Even if some of the witnesses may not have provided a great deal of detail about the relationship, they were firm that the relationship was long-standing and genuine, and that the appellant and [the sponsor] had lived together as spouses. The Tribunal could not have rejected this evidence without finding that nine people had lied to the Tribunal.
29 Counsel for the Minister made written and oral submissions including as to whether the Tribunal had properly made findings and as to the Tribunal's entitlement to reject evidence. It was also confirmed during the hearing that Mr Zaki was concerned that the Tribunal did not believe the corroborative witnesses. Therefore, the manner in which the Tribunal dealt with such evidence was in issue, although perhaps somewhat initially clouded by the manner in which Mr Zaki focussed on bias in enunciating his appeal ground. To ensure that the Minister could address the question of credibility of corroborative evidence in the context of jurisdictional error, I invited the Minister to file supplementary written submissions and he did so.
The Tribunal's record
30 It is important to note that at the time of the hearing before the Tribunal (February 2016), Mr Zaki and the sponsor were not living together. According to the supplementary written submissions before the Tribunal, they had lived together three or four days a week from shortly after they met in 2012 until they married in September 2013. It was said that they then lived together at three different addresses until March 2015, at which time they started living separately for reasons that were said to be connected to what was considered at that time to be in the best interests of the sponsor's daughter.
31 As the Tribunal properly noted, the fact that parties to a marriage may live separately for a finite period does not deny a party status as a 'spouse', as is clear from the statutory definition. However, in the circumstances it was important as part of its consideration that the Tribunal consider whether the couple were living separately and apart on a permanent basis.
32 After outlining the background and relevant statutory framework, the Tribunal recounted Mr Zaki's and the sponsor's version of the relationship before analysing the relationship under the headings of the four principal matters under reg 1.15A(3).
Financial aspects
33 The Tribunal first considered the financial aspects of the relationship. It stated that Mr Zaki had submitted little information about how the parties managed their combined resources, even though it stated that it had steered Mr Zaki towards the sort of evidence that might have assisted the Tribunal. It had serious concerns that Mr Zaki and the sponsor had been living separately and apart on a permanent basis; but it said that even if that were not the case, it 'would have expected that since the time of application they would have been able to indicate in a concrete manner how the troubled household has been sustaining itself over the years' (para 62).
34 The Tribunal noted that the sponsor said in her statutory declaration that when he is financially able to, Mr Zaki contributes toward the rent, food, petrol and general requirements of the household and that he had assisted with items such as car insurance.
35 The Tribunal records:
65. The evidence above demonstrates that after the time of application the applicant has worked. Presumably the sponsor also receives some Centrelink payments for the upbringing of her child, although this is unclear. The Tribunal does not, however, have before it, evidence that the income earned by the applicant and sponsor has been pooled together for their mutual benefit and everyday living expenses.
66. The Tribunal accepts that two parties to a marriage may have some periods of conflict and may choose to separate for a finite period. However, if the commitment was ongoing despite the separate living arrangements, and if the relationship had ever been genuine and continuing, there would be evidence to demonstrate how the applicant does indeed support his wife and daughter financially.
67. Unfortunately, many assertions in writing and verbally have been provided to the Tribunal about how the parties support each other and that the applicant has purchased insurance and assisted with payment of a car service for the sponsor, but little evidence has been provided to demonstrate that this is the case.
68. The parties have been married since 1 September 2013 - for well over 2 years. The Tribunal is not satisfied that the evidence submitted is consistent with two parties who have maintained a continuing genuine relationship, even if the parties were forced to spend some time living separately and apart on a temporary basis as claimed.
36 The Tribunal drew no adverse inference from the fact that Mr Zaki and the sponsor could not purchase a home together and had no major assets (para 70). However, the Tribunal did not have before it evidence that Mr Zaki and the sponsor had pooled their income for mutual benefit. It said that they had failed to produce convincing evidence that they had shared household expenses (para 71). Although they had produced evidence of rental agreements, the Tribunal found they did not demonstrate where the rent for the properties was coming from and how each of the parties contributed to the payment of rent (para 72).
37 The Tribunal noted that the sponsor's daughter was entitled to a legacy of $225,000 and that her maternal grandparents acted as trustee of that fund, which was for her maintenance, education and advancement.
38 On this matter, the Tribunal concluded:
75. In the circumstances, the Tribunal considers that the [applicant] plays a limited role, if any, by way of financial support, and relatedly, emotional support to the sponsor and her daughter, despite the applicant's repeated claims that he does so. The Tribunal places little weight on the applicant's and sponsor's assertions to this effect.
Nature of the household
39 As it foreshadowed when considering the financial aspects of the relationship, the Tribunal was not satisfied that Mr Zaki and the sponsor were not living separately and apart on a permanent basis. It found that although cohabitation is not a requirement of being in a genuine and continuing spousal relationship, given the paucity of evidence that would show that the parties were ever in such a relationship or that they have maintained a mutual commitment as spouses even during the times when they were living apart, it was not satisfied that they were not living separately and apart on a permanent basis.
40 The Tribunal noted the submission by Mr Zaki's migration agent, which stated that Mr Zaki and the sponsor lived together full-time between September 2013 and March 2015, but lived apart from March 2015 to the time of the decision in April 2016. The submission was to the effect that Mr Zaki continued to contribute financially and emotionally to the running of the households even while living apart. The Tribunal further noted that the submission 'virtually concedes that the assertions and claims made by the parties are only supported by their own statements', and that 'little further probative evidence has been submitted that they have at any time shared a household as spouses'.
41 The Tribunal referred to letters from the sponsor's parents in which they stated that the parties were happily married and lived together as a 'normal loving family'. The Tribunal placed some weight on those statements but noted that they provided little insight into the parties' daily lives. It also referred to some evidence suggesting that they had at times lived together.
42 The Tribunal stated:
90. Even if the parties may have shared residences at times, and the evidence is limited, the Tribunal is not satisfied that they have done so as parties in a mutually committed relationship and as spouses as defined in s.5F of the Migration Act. The fact that two persons may have lived at the same residence for some periods, does not of itself convince the Tribunal that they did so as spouses with common goals and a shared future. Persons routinely share premises without necessarily being in a spousal relationship for purely financial reasons.
91. Overall the Tribunal is not persuaded that the parties have ever, or are currently, living together as spouses and as a family unit in which the applicant plays a significant role in the life of the sponsor and her daughter as claimed. The evidence does not support these assertions.
Social aspects
43 The Tribunal referred to a letter by Mr Zaki's parents, handwritten in English and dated 15 August 2013. The Tribunal stated:
93. The Tribunal has reservations about the degree to which it is reflective of parents whose son is about to marry a woman who is older than the applicant and already has a child from a previous relationship, and furthermore, is not of the Islamic faith. The letter states, among other things, 'glad about your wedding' and that the wedding would be celebrated in Pakistan also. The applicant's parents' claimed letter states that they could not attend because of their work commitments.
94. Of course there may be instances where it is entirely acceptable for a young Pakistani Muslim man to marry a Western woman who is older than him and has a child. In this case, however, given the paucity of evidence of the genuine and continuing nature of the relationship, the Tribunal questions any superficial claims by the applicant at hearing, that it was simply love and this assisted them to transcend any cultural differences.
95. The Tribunal also notes that the letter has not been verified by any authority in Pakistan as having been written by the applicant's parents, and therefore the Tribunal also has concerns about its origins and places limited weight on it.
44 The Tribunal placed some weight on evidence of gifts sent to Mr Zaki and the sponsor early on in their marriage as evidence of outside parties being aware of the marriage (para 97).
45 The Tribunal noted that Form 888s were filed at the time of the application (statutory declarations of supporting witnesses) and that it also received oral evidence. It received oral evidence and a statement from the sponsor, oral evidence from her daughter, oral evidence and statements from Mr Zaki's two sisters and oral evidence from a friend of the brother, Mr Jaffar. The Tribunal recounted the evidence of Mr Zaki's various witnesses, as follows:
(a) a Form 888 was provided by Mr Adnan, a family friend who considered the relationship 'long lasting';
(b) Ms Urooj, Mr Zaki's sister, who stated that she had 'observed that they want to pursue a future together and that she observed them at social functions'. The Tribunal placed 'some weight' on Ms Urooj's evidence, but noted that her knowledge of the parties' alleged difficulties was 'limited';
(c) Ms Rubab, Mr Zaki's other sister, who stated that she socialises with the parties and they are a 'beautiful and honourable couple', that she considered that they 'are genuine and they respect each other', and that they would like to visit Pakistan in the future. The Tribunal stated that her evidence was comprised of 'general statements' (para 104);
(d) Mr Jaffar, a friend of Mr Zaki's brother, who stated that Mr Zaki and the sponsor had a 'good and ongoing relationship' but that he had no information about what their commitment was based upon (para 106);
(e) statements by the sponsor's parents, who provided a series of letters in which the sponsor's father stated that Mr Zaki and the sponsor were a 'happily married couple who have created a loving home together'; that they were very much in love and that they paid a total of $3,250.00 for the rent of a property from the sponsor's parents. The Tribunal considered that these statements provided very little insight into the parties' everyday lives as a family unit and did not shed any light on how the parties maintained a commitment to one another in light of the difficulties they faced;
(f) oral evidence from the sponsor's daughter. The Tribunal considered that the daughter's comments 'appeared somewhat rehearsed stating that they loved each other and the relationship was genuine'. The daughter gave evidence that Mr Zaki lived with her and the sponsor; that he had 'not really' participated in her school life; and that her teachers had not met him. The Tribunal recorded that given the daughter's age it made no adverse findings in respect of her evidence.
46 The Tribunal also had regard to documentary evidence including cards and photos of the parties' marriage ceremony and a small photo album depicting the parties at various locations including with the daughter (para 110). It said it placed some weight on these photos as an indication that Mr Zaki's mother was aware of the marriage (para 111).
47 The Tribunal concluded:
114. While the Tribunal accepts that third parties are aware that the couple married, the Tribunal is not convinced that these outside parties have provided insight into their beliefs that the relationship will continue into the future.
Mutual commitment to one another
48 By way of initial summary, the Tribunal wrote:
115. While the Tribunal does not have concerns that the parties are not living together or may have undergone some difficulties, the Tribunal is left with many questions about whether the parties have a shared life to the exclusion of others and whether their living arrangements are not in fact a reflection of the lack of commitment as spouses.
49 The Tribunal considered that the sponsor and the daughter have 'clearly undergone some sort of trauma' and that the sponsor has undergone treatment. It stated that it 'would have expected' that any counselling conducted by the sponsor would include her relationship with Mr Zaki, and that an independent counsellor would have been able to provide evidence about how the sponsor was overcoming difficulties, any supportive role Mr Zaki was playing and whether the parties were working towards living together again.
50 The Tribunal recorded:
119. Little evidence has been submitted about very serious matters and the Tribunal is not convinced by the superficial statements made by the parties themselves and members of their family, that couple had a genuine bond and would live together as spouses into the future. The Tribunal has concerns that even though it was suggested at hearing, no independent statement by an expert in family matters, has been provided and that this is because the parties are attempting to conceal the true nature of their relationship which the Tribunal is not satisfied is in existence as spouses.
51 The Tribunal expressed disquiet about the sponsor's evidence that the parties had no legal arrangements in place for what would happen to the daughter should something adverse happen to her. It stated that there was limited evidence that Mr Zaki would have any legal role in caring for the daughter in such an event and that this weakened the parties' claims that Mr Zaki is considered the daughter's step-father and that the parties have a mutual commitment to one another.
52 The Tribunal found that Mr Zaki's statements about having a child were 'implausible' as little evidence was submitted that suggested he and the sponsor were taking decisive action on the matter. It was unconvinced by his stated justification for not investigating reproductive technology on the basis that it was inconsistent with his beliefs. It noted that the possibility of adoption was raised but said that there was little concrete evidence of investigations having been made by the parties about adoption. However, the Tribunal went on to state:
123. It is not a requirement that two persons in a genuine and continuing spousal relationship have a child/ren. What is of concern, however, is that the parties felt the need to state that they wanted a child even though clearly they had made no evidence to show this was a joint commitment, although the Tribunal accepts that the sponsor stated that it was not a priority for her. Even so, the Tribunal gained the impression from hearing that there was an expectation that he would have a child and that he did want to be a father, leading the Tribunal to have questions about why the applicant would have entered into a relationship with a woman who would find it hard to conceive and naturally as he stipulated.
53 The Tribunal then considered the inception of the relationship. It wrote:
124. In terms of the inception of the relationship, the Tribunal is not concerned that the parties may have met as friends on Facebook. The Tribunal understands that this is entirely and commonly possible. Rather, the Tribunal has concerns about how the parties developed a love relationship from a friendship with rapidity. Furthermore, the Tribunal is not altogether satisfied about the applicant's claimed motives to have connected with the sponsor because he liked her photo, given that the sponsor herself stated that it could appear that he was in fact looking for a wife.
125. The Tribunal acknowledges that in writing the applicant had referred to the separate living arrangements even if at hearing he gave no indication that anything serious had occurred in the relationship. Nonetheless, the Tribunal is concerned that very little evidence was submitted that the parties would live together on a permanent basis into the future.
126. The Tribunal has had regard to the information submitted after the hearing which shows the parties' conversations on Facebook. In August 2012 the sponsor expresses how impressed she was with the applicant's Facebook page as she was touched by the beauty of the images and words. In September 2012 the parties were discussing meeting and by October 2012 the correspondence had shifted towards never leaving each other; referring to each other as 'purest love' and that they were building beautiful and strong foundations for their future together. Poems were also written. There is evidence of the parties announcing their engagement on Facebook as well as of the sponsor having tattooed the applicant's name in Urdu on her body.
127. The Tribunal places some weight on this communication [sic - information] but considers that in isolation it is not compelling evidence of the parties having been in a genuine and continuing spousal relationship for over two years.
54 In looking for material relevant to a shared family relationship, the Tribunal noted a drawing by the sponsor's daughter headed 'Best Dad's Award to Zaki'. It found that even if it had been prepared by the daughter at some point, it did not reflect the relationship at the time of the decision, as the relationship had ruptured since then.
55 The Tribunal concluded:
129. Even if the Tribunal were to be satisfied that the rupture had occurred in the context of a genuine and continuing relationship (and the Tribunal has reservations), the Tribunal has limited evidence that indicates that the parties are not living separately and apart on a permanent basis.
130. Given these findings the Tribunal is not satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship.
First issue - did the Tribunal consider the circumstances as required by s 5F(2) and reg 1.15A(3)?
56 The Minister submitted that the reasons reveal that the Tribunal made findings as to each element of the definition of 'spouse' in s 5F(2). Mr Zaki did not raise this point. However, as it was raised and addressed by the Minister, it is appropriate to consider whether the manner in which the Tribunal undertook its statutory task disclosed jurisdictional error. This task also raises the issue of the rejection of corroborative evidence, an issue that was raised by Mr Zaki. The Minister has addressed each subclause and I will follow that course.
Consideration - Financial aspects
57 As to reg 1.15A(3)(a)(i), there was an express finding that the parties did not own real property or other major assets jointly and this does not seem to be in issue (para 70).
58 As to reg 1.15A(3)(a)(ii), the Minister submitted that there was a finding that there was a lack of sufficient evidence as to shared liabilities and relies upon the lack of information about payment of rent. Although the Tribunal's dismissal of the value of the letter from the sponsor's father as to receipt of rent may be seen as harsh, it is to be read in the context of the Tribunal's quest for information about joint financial contribution, and the letter does not disclose whether the rent was paid by one or both parties.
59 I note that Mr Zaki submitted that documentary evidence had been provided to the Tribunal. The Tribunal records Mr Zaki's evidence that he 'paid the rent, the groceries and gave [the sponsor] gifts'. It is clear that the Tribunal was seeking receipts, bank record payments, credit card entries or other normal supporting documents of this nature that would show transactions actually being paid, as distinct from obligations being incurred. It was not satisfied with mere assertion in circumstances where it considered supporting documentary evidence ought to have been available. To the extent Mr Zaki was claiming error in this approach, there is no error disclosed. The Tribunal did not ignore his assertions, but did not consider they carried sufficient probative weight. I note that only two rental receipts were in evidence and they covered a three-week period.
60 As to reg 1.15A(3)(a)(iii), it is clear that the Tribunal considered and thought about the issue of pooling of finances and had regard to the references to the evidence that had been provided, but was not satisfied that there was sufficient evidence of pooling.
61 As to reg 1.15A(3)(a)(iv), the Minister submitted that there was an inferred finding that there was a lack of sufficient evidence as to whether one person owes legal responsibilities to the other, having regard to the lack of evidence of joint financial commitment and having regard to the finding of insufficiency of evidence that Mr Zaki has any legal role with respect to his step-daughter. Whilst one could argue that a lack of supporting evidence as to Mr Zaki's financial support of the daughter was not surprising in circumstances where there was evidence the daughter was financially supported in other ways, it does not follow that the Tribunal's assessment of lack of financial commitment was illogical or in error. I accept it can be inferred that the Tribunal found there was insufficient evidence to establish mutual legal obligations.
62 As to reg 1.15A(3)(a)(v), the Tribunal made findings that there was insufficient evidence in respect of the basis of any sharing of day to day expenses as is reflected in its reasons extracted above.
Consideration - nature of the household
63 As to reg 1.15A(3)(b)(i), the Tribunal made an express finding that there was no joint responsibility for the care of children (par 75). That finding was clearly open to it on the evidence.
64 As to reg 1.15A(3)(b)(ii), the Tribunal made an express finding as to living arrangements (paras 90-91 included above).
65 As to reg 1.15A(3)(b)(iii), the Minister submitted it can be inferred that the Tribunal made a finding as to the sharing of responsibility for housework because of its consideration at paras 90-91. In the circumstances of this case, where there were periods of separate residences and periods where the parties resided together, it is apparent that the Tribunal gave careful thought to living arrangements and I accept the Minister's submission that the issues were subsumed in this regard.
Consideration - social aspects
66 As to reg 1.15A(3)(c)(i), there were express findings as to the couple representing themselves as being married to each other (for example, paras 97, 111 and 114 included or referred to above).
67 As to reg 1.15A(3)(c)(ii), there were also express findings about the opinions of others as to the nature of their relationship at para 114 (included above).
68 As to reg 1.15A(3)(c)(iii), the Minister submitted that a finding about the question of joint social activities was to be inferred from the fact that the Tribunal considered the evidence of the other witnesses as to the parties' involvement in joint social activities, referring in particular to the evidence of Mr Zaki's sister as to family dinners and photos taken of the parties with others at their wedding and also in different locations with the daughter. I accept that the Tribunal considered the extent to which there was evidence of joint socialising and it is to be inferred that it found the evidence to be insufficient to come to any particular conclusion on the matter, an approach consistent with that discussed in He at [76].
Consideration - nature of the commitment
69 As to reg 1.15A(3)(d)(i), an express finding was made as to the duration of the marriage (para 69).
70 As to reg 1.15A (3)(d)(ii), there is no doubt that the Tribunal had regard to the time during which the parties lived together and sought clarity about that matter during the course of the hearing. It can be inferred from its stated serious concerns as to whether the parties were then living apart on a permanent basis that it considered there was insufficient evidence to make a precise finding as to time periods. Admittedly, such findings were made in the context of considering the financial aspects of the relationship, but there is a clear overlap between these matters.
71 As to reg 1.15A(3)(d)(iii) and the question of the degree of companionship and emotional support that the persons draw from each other, the Minister relies on an express finding at para 75 (quoted above at [38] above).
72 In my view, there is difficulty in relying solely on this finding. It is made, oddly, in the part of the reasons dealing with financial commitments. It is not clear to me how lack of financial support by Mr Zaki logically supports a finding of lack of emotional support. However, there are other references to material that relates to support and in the context of this matter, the question of the nature of the current relationship was heightened. For example, the Tribunal refers to Mr Zaki's evidence as to the sponsor seeking counselling and that he supported her when she needed it. It refers to his evidence that the sponsor also supports him 'from the first day'. There is also undoubtedly an overlap in the matters relevant to this consideration and the matters considered in the context of the following consideration (long-term future). I am satisfied that if the express finding is considered together with these other matters, it can be inferred that the Tribunal found there was insufficient evidence of the mutual emotional support that it would have expected to see in a genuine and continuing relationship.
73 As to reg 1.15A(3)(d)(iv), the Tribunal records that it is concerned that very little evidence was submitted that the parties would live together on a permanent basis into the future. This is a finding of insufficiency of evidence as anticipated by the reasons in He at [76]. The question of commitment to a long-term relationship was examined by the Tribunal in considering relevant issues such as plans to overcome the issue as to the sponsor's mental health and difficulties with the family living together; the question of children; and Mr Zaki's relationship and role with the daughter. The Tribunal's questions as to the qualitative nature of such evidence is addressed below in the context of the alleged rejection of corroborative evidence.
'Rejection' of corroborating evidence
74 It is convenient at this point to consider Mr Zaki's allegation of the rejection of the corroborative evidence.
75 There were a number of witnesses who, Mr Zaki asserts, attested to the genuineness of their relationship and to the fact that they had been living together.
76 The principles that apply with respect to rejection of corroborative evidence are established. A tribunal will not have committed error by treating corroborative evidence as of no weight because a party's credibility has been weakened such that 'the well has been poisoned beyond redemption', such as where the tribunal is satisfied that the party's case comprises lies: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 at [49]. In order for this to be the case, however, the tribunal must be taken to have entertained no real doubt about the falsity of the applicant's claim: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [36]. However, it is not necessary to find expressly that a party has lied before concluding that a piece of evidence which might corroborate the party's account should be rejected: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [30].
77 This is not a case of a 'poisoned well'. Nor is this a case such as Singh v Minster for Home Affairs [2019] FCA 1790 where corroborative evidence was not properly considered. To the contrary, the Tribunal addressed the evidence of the corroborating witnesses but considered it lacked qualitative content. It considered that the evidence was by way of general statements that did not condescend into a level of detail that provided additional information of substance about the relationship of the parties.
78 The Tribunal records its view that the information provided by the parties is superficial and deficient. It is in that context that the Tribunal clearly looks for, assesses and invites further evidence. It does not make any findings of dishonesty. Rather, it is concerned as to the lack of substance to the evidence and the generalised nature of that evidence, as well as identifying certain inconsistencies.
79 An example of the Tribunal's approach can be seen in the conclusion it expressed based on the evidence of most of the corroborating witnesses at para 114 where it said:
While the Tribunal accepts that third parties are aware that the couple married, the Tribunal is not convinced that these outside parties have provided insight into their beliefs that the relationship will continue into the future.
80 Clearly it accepted the evidence insofar as it revealed a level of knowledge that the couple were married, but it was not satisfied that other evidence provided by the witnesses was of a nature that assisted in persuading the Tribunal as to the nature of the commitment between the parties.
81 The Tribunal's main discussion of the evidence of corroborating witnesses is in the context of the social aspects of the relationship. The Tribunal firstly discusses evidence of the applicant's family's knowledge of his relationship. As noted above, the Tribunal placed limited weight on a letter from the applicant's parents in support of his marriage because:
The Tribunal had reservations as to the degree to which the letter is reflective of parents of a son who is about to marry an older woman who is not of the Islamic faith and who has a child from a previous relationship; and
The letter had not been verified by any authority in Pakistan as having been written by the applicant's parents.
82 The Tribunal noted evidence of gifts sent to the applicant and sponsor from his family in the United States and places some weight on this as indicating that outside parties were aware of the marriage.
83 The Tribunal noted the Form 888s that had been provided and summarised the evidence of the witnesses given at the hearing, and gave an example of the type of vague evidence lacking in specifics set out in those forms:
Several Forms 888 were also submitted at the time of application. For instance, by Rasool Adnan, a family friend declaring he considers the relationship long lasting as he attended the marriage and engagement and so he strongly believes that they 'gona live happily in future'.
84 The Tribunal also referred in detail to the evidence given at the hearing by the corroborating witnesses. The Tribunal expressed some concern in its reasons that the witnesses were not able to provide any specific details of the relationship between the applicant and the sponsor. An example was:
When the Tribunal took evidence from Ms Urooj it had hoped to elicit realistic information about how the parties conducted their relationship in the face of differing cultures. Ms Urooj gave superficial responses, however, stating that they were happy and they had understanding and love. When pressed to say what their mutual understanding was, she responded in generalities stating that they took care of their responsibilities in their ups and downs in life. If someone were sick, for example they took care of each other.
85 The Tribunal was entitled to accord to the evidence of the daughter the weight it considered appropriate, having regard to her age and experience. There is no error revealed in its conclusion in that regard.
86 The Tribunal also placed weight on photographs and on the letters from the sponsor's parents. It considered the letters from the sponsor's parents (under the heading the nature of the household) and placed some weight on the statements, but found that they provide little insight into the everyday lives of the applicant and sponsor as a family unit. It did not reject such evidence out of hand. It is clear that the Tribunal was looking for more than generalised statements that people were of the opinion that the parties were in a genuine relationship, and was seeking by its inquiry to ascertain what people meant by that expression (or similar expressions) and the basis for their views.
87 In summary, it was open to the Tribunal to be concerned by the lack of detail in the evidence from corroborating witnesses. Only some of the corroborating witnesses gave evidence at the hearing and the Tribunal endeavoured to question them to obtain further detail, but its reasons record that it continued to be dissatisfied with the lack of detail in the responses.
88 The Tribunal's reasoning in this regard does not demonstrate any jurisdictional error. The Tribunal was assessing the evidence of the corroborating witnesses in circumstances where it considered that there were deficiencies in the evidence of the applicant and the sponsor, and where it considered more documentary evidence than was provided should have been available had they shared a genuine and continuing spousal relationship.
89 Moving from the corroborating witnesses to the position of Mr Zaki and the sponsor, the Minister submits that the Tribunal's concerns as to the evidence of Mr Zaki and the sponsor were that there was a lack of probative evidence or material to support their assertions about their relationship, and that there were inconsistencies in their evidence.
90 On a reading of the reasons as a whole, I consider the Minister's summary of the Tribunal's concerns about the evidence of Mr Zaki and the sponsor to be accurate. This was a case where the Tribunal considered there was insufficient probative material or evidence to satisfy it as to the definition of 'spouse'. The conclusion of the Tribunal is not that the parties are dishonest or seeking to mislead the Tribunal in some manner, but that the evidence of Mr Zaki and the sponsor is simply too superficial and not persuasive.
91 For completeness, however, I note that there is one aspect of the reasons where at first blush it might appear that the Tribunal makes an adverse credibility finding.
92 The Tribunal commenced its consideration of the nature of the parties' mutual commitment to one another by addressing the fact that the sponsor and her daughter had undergone some sort of trauma in the past and that the sponsor was being treated for depression and was seeing a counsellor.
93 Having noted the importance of the issues being considered, the Tribunal then says (at para 119) that it 'has concerns' that the reason why the parties did not provide 'an independent statement by an expert in family matters' is 'because they are attempting to conceal the true nature of their relationship'. The sentence is badly expressed. The Tribunal does not know the reason for absence of a report. It does not make a finding that the reason is to conceal the relationship. Rather, it has concerns that concealment might be the reason. Therefore, it does not rise to the level of an adverse credibility finding, but records a 'concern'. There was no apparent reason to assume that any failure to provide such a report was in fact in order to conceal relevant information. However, the Tribunal makes the comment in the context that it has sought information to fill the evidentiary gaps as to the nature of the relationship and how the relationship might work in the future; it considers that one manner by which that gap might have been filled is a report from a counsellor; and it speculates as to why that did not occur. But no definitive adverse credibility finding is made (and Mr Zaki did not contend otherwise in his submissions).
94 In Pharikan v Minister for Home Affairs [2019] FCA 49, Gleeson J similarly considered a 'concern' about an appellant's willingness to be untruthful when seeing a visa, distinguishing it from an explicit adverse credibility finding: at [38]-[39]. I have also had regard to the Full Court's summary of the relevant principles as to credibility findings in DAO16 at [30].
95 Having carefully reviewed the transcript, I can find no reference by the Tribunal to a suggestion that an expert report be provided, although there is no doubt the Tribunal offers to both Mr Zaki and the sponsor the opportunity to provide further material. Mr Zaki's representative does not address this point in his post-hearing submissions, despite addressing other specific requests for evidence (for example, Facebook message extracts). However, no point as to procedural fairness was taken at any point by Mr Zaki or his counsel arising from the matters mentioned at para 117.
Determination - consideration of elements
96 It must be noted that the Tribunal's reasons are not a model of well-written reasons. The manner in which they have been drafted has increased the difficulty for the parties and the Court in understanding the manner in which the Tribunal undertook its task. There is an absence of express findings where they could have been made, such that it has been necessary to consider whether findings are to be inferred. To the extent there are express findings, on occasion they are present but disconnected from the reasons upon which they are based. Having regard to the fact that Mr Zaki was unrepresented at the hearing, I have considered carefully the Minister's submission that (regardless) the reasons indicate that the appropriate questions required by the statute to be considered by the Tribunal were in fact considered.
97 In undertaking that task, I have taken into account the impressionistic and evaluative nature of the Tribunal's task when drawing implications from its reasons, and, further, that it is well established that such reasons are not to be construed minutely and finely with an eye attuned to the perception of error: as summarised in Singh v Minister for Immigration and Border Protection [2017] FCA 1298 at [20].
98 For the reasons set out above I am of the view that the Tribunal has made findings as to the matters referred to in s 5F(2) and reg 1.15A(3) in accordance with the principles set out in He, and no jurisdictional error is established in that regard.
Second issue - the apprehended bias claim
Principles
99 Establishing an allegation of apprehended bias requires that a hypothetical fair-minded lay person who was properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to the an apprehension of bias, might reasonably have apprehended that the Tribunal might not bring an impartial and unprejudiced mind to that review: Johnson v Johnson (No 3) [2000] HCA 48; (2000) 201 CLR 488 at [11]; and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27].
100 A claim for actual or apprehended bias must be 'distinctly and clearly proved': Jia Legeng at [69].
101 The inquisitorial nature of proceedings before a tribunal as compared to the adversarial nature of curial proceedings must also be taken into account: Re Refugee Tribunal; Ex parte H at [29]. Where credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. The need to ensure that a person who will be affected by the decision is accorded with procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question: Re Refugee Tribunal; Ex parte H at [30]-[31].
102 An informed and instructed hypothetical person would know that the tribunal is an inquisitorial body, and is not required uncritically to accept an applicant's claims: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 596.
103 The content of the questioning and answering in the tribunal must be considered as a whole rather than being dissected: SZLUD v Minister for Immigration and Citizenship [2009] FCA 549 at [30].
104 The expression of a preliminary view, even on a critical matter, does not establish bias: Minister for Immigration and Citizenship v MZXPA [2008] FCA 185 at [15]. Nor does the expression of scepticism by the tribunal. That does not equate to a determination to prove the falsity of the claim: SZLUD at [39]. Even if the Tribunal’s transcript gives rise to impressions of impatience and irritation, justified or otherwise, this will not be sufficient to amount to disqualifying bias: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [31]-[32] (Flick J), [100] (Robertson J).
105 As explained in Jia Legeng, an assertion that a decision-maker had pre-judged an issue contains four distinct elements at its roots (at [185]):
(a) the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case;
(b) the decision-maker will apply that opinion to that matter in the case;
(c) he or she will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case; and
(d) the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
Transcript of hearing
106 At the request of Mr Zaki I have read the transcript of the hearing and listened to pertinent parts of the audio recording. The Minister did not oppose the tender of those materials. I am therefore in a different position to that of the primary judge.
107 The first point to note is that a comment when read in the two dimensional transcript and without the colour of tone and timing may appear somewhat harsh. For example, the words 'fairy tale' (as used by the Tribunal) without more may appear sarcastic or suggestive of insincerity, but having listened to the audio recording, the words were used without any ridicule, sarcasm or similar tone. The questioning by the member was at all times polite and calm. The tone of the questioning was entirely reasonable. I do not discern any basis for apprehended bias based on the manner in which the hearing was conducted.
108 Nevertheless, it is important to address the other arguments relied upon by Mr Zaki.
109 Mr Zaki submits through his written submissions that matters drawn from both the transcript of the hearing and the decision record support a claim of apprehended bias on the part of the Tribunal. The submissions repeat and expand upon the matters particularised in the grounds of appeal.
Matters from the hearing
110 Mr Zaki submits that at the hearing, the Tribunal:
(1) took a hostile and adversarial approach, warning him that the remittal of the case did not mean that it had to accept that the relationship was genuine and continuing;
(2) inaccurately and unfairly suggested that not a lot of information had been submitted to the Tribunal;
(3) disingenuously suggested that there was some difficulty in understanding the narrative of the relationship, and how it started and developed when both Mr Zaki and the sponsor had given detailed evidence of how they had met;
(4) repeatedly asserted that Mr Zaki's claim was concocted for the purpose of remaining in Australia;
(5) made an 'offensive' suggestion that the sponsor was not of his culture or faith and queried why she would be a suitable spouse, and that there may have been another reason, 'such as getting a visa';
(6) insensitively dismissed Mr Zaki's evidence that the sponsor had tattooed his name on her body, and suggested that 'Anybody can put anything on a tattoo, and then have it removed';
(7) suggested that Mr Zaki was on Facebook looking for a wife, despite his evidence that when he was on Facebook the sponsor's profile had 'popped up' as a suggested friend, and that as he liked her photo he sent a friend request to her;
(8) suggested that Mr Zaki gave his mobile telephone number to the sponsor a few days after they had met on Facebook, because he 'had a motivation for entering this relationship, to start a relationship just to get a visa to secure your residency in Australia';
(9) queried whether 'in your culture you have platonic friendships with females?';
(10) suggested that the romantic relationship Mr Zaki was presenting was sounding like a 'fairy tale;
(11) asked whether 'in your culture', 'in the Islamic culture', 'in Pakistan', it is acceptable to live together without getting married, a query that was without foundation;
(12) doubted the parties' plans to have children, a doubt that flew in the fact of the evidence given at the hearing; and the question as to why Mr Zaki would have entered into a relationship with a woman who would find it hard to conceive was offensive, unfair, and misunderstood the evidence that they had given on this issue;
(13) suggested to Mr Zaki that he had not mentioned the day-to-day issues that he had been having with the sponsor when they had temporarily separated for the wellbeing of their daughter, and in the hearing he had talked about the sponsor's mental health issues; and
(14) said during closing representations that, 'the sponsor has been honest. I'm not sure that the visa applicant was so honest', a statement that would have confirmed to an onlooker that the Tribunal had not been moved from its opening view that the relationship had been concocted.
Matters from the decision record
111 It was further submitted that the Tribunal's reasons found an apprehended bias claim because the Tribunal:
(1) made findings that were arbitrary, capricious and unjust, and appeared to reflect an approach by the Tribunal to discount 'hard' evidence;
(2) unfairly asserted that, other than the statements made by Mr Zaki and the sponsor, little further probative evidence had been submitted that they had at any time shared a household as spouses;
(3) unfairly rejected the evidence of the other witnesses, including the daughter;
(4) purported to discount the letters from the sponsor's parents although they emphasised that the relationship was genuine and that Mr Zaki and the sponsor had been living together as spouses;
(5) suggested that the parties may have been housemates rather than spouses;
(6) discounted the letter of congratulations for the wedding from Mr Zaki's parents;
(7) inferred that Mr Zaki may have instigated the trauma experienced by the sponsor and did not accurately state the evidence given in the hearing; and
(8) expressed concern about the lack of independent evidence from a counsellor or expert in family matters and suggested that no such evidence had been provided 'because the parties are attempting to conceal the true nature of their relationship which the Tribunal is not satisfied is in existence as spouses', a suggestion that was unwarranted.
Consideration of the particulars of alleged bias
112 Mr Zaki's complaints can be grouped. I have already noted that I found nothing untoward or 'hostile' in the Tribunal's approach during the hearing.
113 Mr Zaki complains about what he contends were direct and explicit allegations that his evidence was concocted for the purpose of obtaining a visa. Although the word 'concocted' is not used by the Tribunal during the hearing (or in the reasons), there is no doubt that the Tribunal challenged Mr Zaki's evidence on a number of occasions. The Tribunal asked Mr Zaki to explain how the relationship with the sponsor developed in the context of his statement that he had met her on Facebook and that he was at that time 'using credit'. An inference properly arises that the Tribunal was affording Mr Zaki procedural fairness by giving him an opportunity to respond about the circumstances of the commencement of the relationship.
114 Nor can it be seen that questioning about the basis of an application for a visa and whether a marriage might be for residency purposes is indicative of bias: such questioning is hardly surprising in the context of such a hearing.
115 The Tribunal comments at various stages during the hearing about the lack of documentary evidence on file that evidences the relationship. The Tribunal's suggestion that there was very little evidence 'on file' of the relationship is to be construed taking that into account. For example, it is not surprising that the Tribunal would have expected to see receipts, bank record payments, credit card entries or other such supporting documents of this nature when it must address the questions of financial participation of the parties. They would show transactions actually being paid, as distinct from obligations being incurred. It is not the case that other evidence that was provided was ignored (as becomes clear in the reasons). The Tribunal also states at the end of the hearing that information about the 'turbulent period' is very general and suggests to the sponsor that further information might be provided. Such interactions are not indicative of bias.
116 The Tribunal made some comments during the hearing about Facebook which indicated that it had misunderstood the manner in which Facebook operates and misunderstood the significance of posting personal details. The Tribunal had wrongly assumed that Facebook was a dating site. It later accepted that was not the case. It properly understood the position during the course of the hearing and prior to writing the reasons. On two occasions (based on the transcript) the Tribunal says it has 'moved on' from (in effect) its initial concerns about Facebook. It also said that the sponsor's evidence had clarified aspects of their early relationship.
117 The comment about the tattoo might be seen by some as gratuitous but that is a matter upon which people might quite reasonably have different views: the Tribunal's comment and its decision to accord the tattoo no weight could not be seen as improper or so significant as to reasonably give rise to an apprehension of bias.
118 Questioning about Pakistani culture and religion was not inappropriate or indicative of bias in a scenario where the sponsor had raised such matters in her own evidence. For example, the sponsor gave evidence throughout the hearing, such as:
And, I remember clearly at that stage, looking back, he didn't want his brother to know of me, which is fair enough. I think they're quite strict in their marital arrangements, or dating.
…
I suppose then also there were cultural aspects, perhaps expectations from Zaki of what I should be, and I expectations of him, what he should be. And, we thought maybe we weren't able to meet those.
119 It was open to the Tribunal to inquire as to how such matters influenced the relationship and were accommodated, as part of testing its genuineness. The Tribunal's expressions of scepticism during the course of the hearing did not, in my view, evidence bias or pre-judgment but invited comment from Mr Zaki which might inform the nature of the relationship.
120 Even if a lay-minded observer were to conclude that the Tribunal might have brought pre-conceived notions of Mr Zaki's culture, they would not conclude that these pre-conceived notions directed a particular outcome or caused the Tribunal to fail to give the matter fresh consideration, as it was open to the Tribunal to make the same findings based on the sponsor's own evidence that addressed such matters.
121 It was open to the Tribunal to question Mr Zaki and the sponsor as to the issue of how and when the partners might have a child against a backdrop where Mr Zaki had indicated a desire to have a child. The issue was relevant to the question (at least) of whether the parties see the relationship as a long term one. Whilst one can fairly say that the questions might have been asked with more sensitivity, particularly as Mr Zaki also said he had in mind adoption rather than IVF assistance, the line of questioning does not suggest an apprehension of bias. Mr Zaki indicated he wished to be a father and so the line of questioning was relevant.
122 It was open to the Tribunal to assert that Mr Zaki had not previously disclosed relevant issues that had arisen between the parties in the relationship. Mr Zaki had filed three statements. In one of those he had touched on the separate living arrangements, but otherwise he had not disclosed the greater difficulties that were raised by Mr Zaki and the sponsor during the hearing, including the mental health issues of the sponsor. Again, it was a topic upon which the Tribunal was entitled to ask questions and does not suggest an apprehension of bias. Similarly, the Tribunal's statement during the hearing to the effect that it was 'not so sure about Mr Zaki's honesty' is to be viewed against that issue of disclosure and where the reluctance to make further disclosure was explained only in the later post-hearing submissions. It does not of itself suggest that the Tribunal had made a pre-determination from which it would not be moved upon reflection and consideration of the issues and submissions prior to finalising its decision.
123 I am not satisfied that the Tribunal's conduct at the hearing was such that a fair-minded observer might think the Tribunal might not give the matter fresh consideration when considering the evidence, assessing the matters to which it must have regard for the purpose of reg 1.15A, or recording its reasons. This is particularly due to the Tribunal's requests for further evidence which it thought might assist in its determination, and the invitation for further submissions.
124 Furthermore, the reasons indicate that the Tribunal did in fact undertake the task of correcting its misapprehensions. For example, it moved on from its misunderstanding as to the use of Facebook as a dating site during the course of the hearing and in its reasons.
125 As to the complaint of apprehended bias said to arise from the nature of the reasons, when they are read as a whole they do not indicate that 'hard' evidence was improperly accorded reduced weight. The weight to be accorded to material or evidence was a matter for the Tribunal, and Mr Zaki in complaining about findings seeks to delve into merits review. It may be that a Tribunal differently constituted may have formed different views about some of the material before it, but that does not establish that the Tribunal in this case acted unreasonably or in a manner that suggests apprehended bias. It was entitled to test the evidence and it did so.
126 The complaints as to the treatment of corroborative material have been addressed above. The approach of the Tribunal was to test the content of the material, a course that was properly open to it.
127 The suggestion that the parties may have been 'housemates' was not inappropriate when the Tribunal was obliged to consider not just whether the parties resided together but the nature of their relationship in doing so.
128 The complaint that the Tribunal inferred that Mr Zaki had caused the trauma suffered by the sponsor is not made out: on a clear reading of the reasons the Tribunal refers to a trauma that triggered her depression, and that the sponsor said the relationship difficulties aggravated that depression. The reference to aggravation cannot properly be construed as a reference to instigation.
129 The issue relating to the comment about lack of independent evidence from an expert has already been addressed. In the context of the Tribunal's repeated requests for additional evidence, the comment was not, to my mind indicative of bias, particularly where no definitive adverse credibility finding was made and the evidence of Mr Zaki was considered inadequate for other reasons.
130 Therefore, taking the entirety of the transcript as a whole and the entirety of the Tribunal’s reasons into account, in my view, the serious allegation of reasonable apprehension of bias cannot be made out. There was no error in the primary judge's decision to dismiss the review ground based on apprehended bias.
Application to adduce fresh evidence
131 Mr Zaki sought to file a bundle of documents some 500 pages long for the purpose of the appeal. This bundle contains a large number of documents that may go towards the criteria outlined in s 5F, such as invoices and bank documents, messages, medical records, and insurance and superannuation documents. Some of these documents predate the Tribunal hearing and either were presented to the Tribunal or were not (but presumably could have been presented), whilst others post-date the Tribunal hearing.
132 The Minister opposed the admission of the bundle of documents on the basis that it is being tendered to refute a finding of fact made by the Tribunal, contrary to the ruling in MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] (cited in, for example, AIM15 v Minister for Immigration and Border Protection [2017] FCA 734 at [31]). The Minister asserts that the documents are only relevant to the merits of Mr Zaki's partner visa application, as opposed to being relevant to any allegation of jurisdictional error.
133 I accept that the documents relate to the issues of fact determined by the Tribunal and that Mr Zaki would be seeking merits review in inviting this Court to make determinations based on those documents and it would be inappropriate to admit them: Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 at [55]. The documents were not before the Tribunal and do not provide any basis for alleging error on the part of the Tribunal.
Determination
134 Taking into account some of the difficulties to which I have alluded with the manner in which the Tribunal's reasons were written and the difficulty of some of the matters raised by Mr Zaki, it was appropriate that the extension of time application be dealt with at the same time as the appeal proper. It cannot be said that the appeal had no prospect of success. I would grant the extension of time but the appeal is otherwise dismissed.
135 The Minister has provided an affidavit in support of a lump sum costs order. The amount is not insignificant. I consider it appropriate that the matter be referred to a Registrar to be assessed on a lump sum basis if not agreed.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith. |
