Federal Court of Australia

Wang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 672

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant be granted leave to file and serve the amended notice of appeal provided to the Court at the hearing on 13 April 2022 and, to the extent necessary, time be extended sufficiently to permit that to occur.

2.    The appeal be allowed.

3.    The orders of the Federal Circuit Court of Australia made on 28 November 2019 in matter no. SYG 613 of 2016 be set aside and in lieu thereof it be ordered that:

4.    The First Respondent pay the Appellant’s costs of the appeal as taxed or agreed.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    The question underpinning this appeal is whether Ms Wang is in a de facto relationship with Mr Barakat. Mr Barakat is an Australian citizen. Ms Wang is not. Ms Wang applied for a visa as Mr Barakat’s de facto partner from the Department of Immigration and Border Protection. The formal name for that kind of visa is presently a ‘Partner (Temporary) (Class UK) Visa’ but in these reasons I will refer to it as a partner visa. As will be seen shortly, its cumbersome formal title has some work to do in this appeal. In any event, Ms Wang’s visa application was refused and an application for a review of that decision on its merits by the Administrative Appeals Tribunal (‘the Tribunal’) was dismissed. Ms Wang then commenced a judicial review proceeding in the Federal Circuit Court but that application was dismissed too: see Wang v Minister for Immigration & Border Protection [2019] FCCA 3445. From the orders dismissing her judicial review proceeding she now appeals to this Court. In an appeal in a migration matter, the appellate jurisdiction of the Court is to be exercised by a single judge unless the Chief Justice determines otherwise. In this case, his Honour has not determined otherwise. The appeal is therefore to be heard by a single judge.

2    The appeal gives rise to three issues:

(1)    Did the Tribunal fail to give proper consideration to the evidence or claims which were before it?

(2)    Did the Tribunal fail to consider matters which it was required by law to consider?

(3)    Were the Tribunal’s actions during the hearing of the case such as to give rise to a reasonable apprehension of bias on its part?

3    Not all of these matters were raised in the Federal Circuit Court and Ms Wang therefore requires a grant of leave before those matters can be pursued in this Court. I would grant that leave for three reasons. First, the Minister did not oppose it other than on the basis that the additional matters were without merit; secondly, the contentions do not require any additional evidence; and thirdly, as will be seen, these matters are not without merit. I have concluded that the first two propositions should be upheld but the third rejected. The consequence is that the appeal must be allowed with costs. My reasons for this are as follows (dealing with the issues in the above order).

Ms Wang’s evidence about the relationship

4    Ms Wang claims to have met Mr Barakat at a party in July 2013 whilst she was a student in Australia. On 23 April 2014, she applied for a partner visa. In Ms Wang’s application, Ms Wang and Mr Barakat gave evidence that they had been living together since 2 January 2014 and that they planned to marry and have a child. In proceedings before the Tribunal, they also provided material which included a number of statements and statutory declarations from supporting witnesses, a residential tenancy agreement, bank statements, utilities bills, pension information, and photographs.

The Issues Before the Court

Issue 1: Failure to Give Proper Consideration to the Evidence or Claims Which Were Advanced Before It

5    The Tribunal will fail to perform its duty of review if it fails to take account of cogent evidence which provides substantial support for an applicant’s case: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 (‘SZMTA’) at [13]. In this case, the Tribunal accepted that:

(1)    Ms Wang and Mr Barakat lived at the same address [13];

(2)    Ms Wang and Mr Barakat had lived together for a number of years [25];

(3)    Ms Wang and Mr Barakat represented themselves to others as a couple [17];

(4)    some of Ms Wang and Mr Barakat’s friends and relatives believed them to be a couple [17]; and

(5)    Ms Wang and Mr Barakat socialised and travelled together [25].

6    The Tribunal did not advert to oral testimony given to it that:

(6)    Ms Wang and Mr Barakat lived in a one bedroom apartment;

(7)    Mr Barakat’s pension had been reduced from $640 to $430 because Ms Wang was living with him when the evidence was that she only earned $75 per week; and

(8)    Ms Wang did not give Mr Barakat money but helped around the house.

7    Matters (6) and (7) had to be dealt with. The fact that there was only one bedroom in Ms Wang and Mr Barakat’s residence was not evidence which could be ignored. If Ms Wang and Mr Barakat were sharing a bed then this militated strongly against the proposition that they were merely sharing a house. It may well have been open to the Tribunal to reject this evidence and conclude that one of them slept on the couch. The Tribunal may have found that there were two single beds in the bedroom (although there was no evidence to this effect before it). It may even have been able to find that although they slept together in the same bed, it was not in a conjugal fashion but just as a convenience forced upon them by circumstance. What it could not do was ignore this evidence. Mr Kay Hoyle, Counsel for the Minister, submitted in writing that the Tribunal had asked Ms Wang and Mr Barakat about their personal life. I accept that this is so, however, the Tribunal did not drill down any further on this topic except to find that they lived in a one bedroom apartment. It is true that the Tribunal asked both Mr Barakat and Ms Wang whether there was anything else they wished to tell it about the relationship and neither added to what they had already said. But in circumstances where they had both given evidence that they were trying to have a baby, there was perhaps not much more that needed to be said. I do not accept, therefore, that these matters provided a basis for not adverting to the significance of the fact that there was only one bedroom in their residence.

8    In the same vein, the evidence that Mr Barakat’s pension had been reduced because he and Ms Wang were cohabiting was strongly inconsistent with the Tribunal’s eventual conclusion that they were not in a committed a relationship. Ms Wang and Mr Barakat both gave evidence that his pension was reduced, with Mr Barakat saying that it had been reduced from $640 to $430 because of the cohabitation. Ms Wang’s earnings from washing dishes at a restaurant were $75. The Tribunal’s view was that Ms Wang’s motivation in applying for the visa was purely that she could stay in Australia and earn money. Yet on the evidence from Mr Barakat, this would make no sense. Such an arrangement was costing him a significant amount of money even if one accounts for the additional $75 per week earnt by Ms Wang. This is even before one has regard to the fact that Mr Barakat gave evidence that Ms Wang did not pay him this money but did the housework instead. There may well have been answers to this that the Tribunal could have alighted upon, but that is not the present point. This was material which needed to be confronted and which the Tribunal could not ignore.

9    Consequently, I conclude that the Tribunal failed to deal with this cogent evidence. The first proposition is made good.

10    Mr Godwin, Counsel for the Appellant, advanced a number of other matters with which he said the Tribunal had failed to deal. Principal amongst these was evidence that: (a) Ms Wang and Mr Barakat had been ‘crushing’ on each other from the time of their first date; (b) Ms Wang got the flu and Mr Barakat looked after her; (c) Ms Wang’s parents initially disapproved of the relationship but would now accept it; (d) Mr Barakat had been teaching her English; and (e) Ms Wang knew the number of grandchildren that Mr Barakat had.

11    I am satisfied that the Tribunal did not refer to this evidence. I am not, however, satisfied that this gave rise to a failure on its part to consider that evidence. As Mr Kay Hoyle with respect correctly submitted, it is apparent from the Tribunal’s reasons that it took as its point of departure that Ms Wang had elicited a considerable body of evidence that they were in a relationship. The bulk of the Tribunal’s reasons lies in its explanation of why it did not think that they could be in a relationship notwithstanding that evidence. Whilst it would no doubt have been better, from the perspective of good administration, for the Tribunal actually to have made findings about these matters, it is, I think, apparent that it did not do so because it did not accept them.

12    Mr Godwin also submitted that the Tribunal had failed to deal with evidence that Mr Barakat’s children attested to the genuineness of the relationship and that they had a joint bank account. The Tribunal dealt with both of these matters so the submission must be rejected: see as to the former [16]-[17] and as to the latter [18] of the Tribunal’s reasons.

Issue 2: Failure to Consider Mandatory Considerations

13    There are many requirements for the grant of a partner visa but the central one, perhaps unsurprisingly, is that the applicant for the visa should be the de facto partner of an Australian citizen, both at the time that the application is made and also at the time that the visa application is decided: see cll 820.211(a) and 820.221 in Schedule 2 of the Migration Regulations 1994 (Cth) (the ‘Regulations’). The expression ‘de facto partner’ is defined in s 5CB of the Migration Act 1958 (Cth) in these terms:

5CB De facto partner

De facto partners

(1)     For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

De facto relationship

(2)      For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

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

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

(c)      they:

(i)     live together; or

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

  (d)     they are not related by family (see subsection (4)).

(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.

14    For reasons which do not warrant setting out, the effect of reg 1.09A(2) of the Regulations is that, in assessing the answer to the questions posed by s 5CB(2), the delegate ‘must consider all aspects of the relationship’ ‘including the matters set out in subregulation (3)’. The word ‘must’ should be noted. What were the matters set out in reg 1.09A(3)? They were as follows:

(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 in a de facto relationship with 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.

15    For the purpose of the second matter (i.e. the matters set out in subregulation (3)), only two of the items in this list are pertinent. They are:

(i)    The requirement for the Minister to assess the nature of the household including ‘any sharing of responsibility for housework’: reg 1.09A(3)(b)(iii); and

(ii)    The nature of Ms Wang and Mr Barakat’s commitment to each other including ‘the degree of companionship and emotional support that the persons draw from each other’: reg 1.09A(3)(d)(iii).

16    As I have said, the Tribunal concluded that Ms Wang was not the de facto partner of Mr Barakat. Ms Wang submitted that in reaching this conclusion the Tribunal did not make any explicit findings about the extent to which the couple shared the housework or the degree of companionship and emotional support that they provided to each other. This led Ms Wang to submit to the Federal Circuit Court that the Tribunal had failed to take into account the matters in reg 1.09A(3)(b)(iii) and (d)(iii) which, by 5CB(2), the Tribunal was mandatorily required to take into account.

17    The Federal Circuit Court was not persuaded that the Tribunal had failed to take these two matters into account. It thought that when one surveyed the Tribunal’s entire decision, it was clear that it must have considered these matters even if it did not expressly refer to them. In so far as the Tribunal failed to advert to ‘any sharing of responsibility for housework’ (reg 1.09A(3)(b)(iii)), the Federal Circuit Court reasoned this way:

64.     While the Tribunal did not expressly make a finding about any sharing of responsibility for “housework” (reg.1.09A(3)(b)(iii)), I accept that, as the First Respondent submitted, this matter was subsumed in the Tribunal’s more general finding that it was not convinced that the couple had established a joint household. Further, the Tribunal considered discrepancies in the couple’s evidence relevant to the nature of the household and responsibility for housework in relation to where and when they did grocery shopping. The Tribunal referred to differences in their evidence about when and where they shopped, including the fact that while the sponsor stated that they “normally shop at Woolworths”, the Applicant’s evidence was that they “rarely” shopped at the big shops. The Tribunal’s approach to this inconsistency underpinned its finding that the couple had not established a joint household as “if the couple did establish a joint household, they should be more familiar with such arrangements ”.

65.     The Tribunal was clearly of the view that the evidence was insufficient to satisfy it that there was a joint household. It is clear that it gave consideration to the living arrangements and the nature of the household in circumstances where the Applicant and the sponsor lived at the same address. It made those findings in light of concerns about their lack of adequate knowledge of or communication with each other as well as specific discrepancies in their oral evidence about their living arrangements, including in relation to grocery shopping (which can be seen as an aspect of housework). I accept that, reading the Tribunal’s reasons as a whole, it should not be inferred that it failed to make a finding on the prescribed matter in reg.1.09A(3)(b)(iii) “as part of its mental process in making its decision” (see He at [85] - [86]).

18    Insofar as the Tribunal failed to advert to ‘the degree of companionship and emotional support that the persons draw from each other’ (reg 1.09A(3)(d)(iii)), the Federal Circuit Court reasoned this way:

68.     In addition, the Tribunal sufficiently considered (in paragraphs 12, 13, 15, 24 and 25) the nature of the persons’ commitment to each other (reg.1.09A(3)(d)). It acknowledged that the “relationship” had existed for a number of years and accepted the claim that the Applicant and sponsor lived at the same address (regs.1.09A(3)(d)(i) and (ii)). It can be inferred that the Tribunal accepted the evidence about the length of time they had lived at the same address. The Tribunal found, however, that the parties did not adequately communicate with each other, that they had little knowledge of each other and that they did not take sufficient interest in each other. Given what the Tribunal saw as their limited capacity to communicate, it was not satisfied that they drew on each other for comfort and emotional support (reg.1.09A(3)(d)(iii)). In light of its finding about their inadequate communication, knowledge and interest in each other, the Tribunal was not satisfied that they viewed their relationship as a long term one (reg.1.09A(3)(d)(iv)).

19    In this Court, Ms Wang placed reliance upon the Full Court’s decision in He v Minister for Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41 (‘He’). That case was concerned with an identically expressed regulation dealing with the question of whether a married rather than a de facto couple was in a genuine relationship: reg 1.15A. Under reg 1.15A(3), the matters which are germane to the question of whether a marriage is genuine are precisely the same as those which are germane to the question of whether a de facto relationship exists. What He has to say about the correct approach to reg 1.15A(3) is therefore directly applicable to the position under reg 1.09A(3) for they are relevantly identical. This was accepted to be so by Mr Kay Hoyle.

20    The Full Court in He held at [76] that the delegate was required to make a finding about each of the matters appearing next to a lower case Roman numeral. At [77], it concluded that it was necessary also for a delegate to make findings about the more general matters next to the letters (a) to (d). These observations formed the basis for the submission, advanced by Mr Godwin, that because the Tribunal had not made any findings about the matter in regs 1.09A(3)(b)(iii) and (d)(iii), it followed that the Tribunal had failed to comply with its obligations to take them into account.

21    The Federal Circuit Court was not persuaded by this submission and neither am I. Despite its statement at [76] and [77] that the Tribunal must make findings about each of the matters set out in reg 1.09A(3), the Full Court in He also accepted that even where the Tribunal failed to do so, it be possible to infer that these matters were considered. At [79], it said:

If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, 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    It was upon this passage that the Federal Circuit Court relied. It did so before it embarked on its consideration of the issues about reg 1.09A(3)(b)(iii) at [64]-[65] and reg 1.09A(3)(d)(iii) at [68]. I reject therefore Ms Wang’s submission that the Federal Circuit Court has misapplied He. In his address, Mr Godwin sought to emphasise a difference between the facts in He and the facts in this case. This difference was that, in this case, the Tribunal accepted that Ms Wang and Mr Barakat were cohabiting, whereas in He the Tribunal had concluded that the spouses in question were not.

23    Accepting that Mr Godwin’s submission about the difference is correct, I nevertheless do not think that this makes the reasoning in He inapplicable. In a case where the Tribunal has not explicitly dealt with a matters in reg 1.09A(3), the question for the judicial review court is whether it can be inferred that nevertheless the Tribunal did consider them. That is the relevant principle. Whilst it may be accepted that the fact that Ms He and her husband did not live together was part of the process of reasoning which led the Full Court to conclude that it was open to infer that the matters in reg 1.09A(3) had been considered, even if they were not the subject of express findings, it does not follow that this is a general principle.

24    It does, however, emphasise that it is a factual question for the judicial review court whether it may be inferred that the matters in regs 1.09A(3)(b)(iii) and (d)(iii) were considered if they were not the subject of an express finding. In this case, the Federal Circuit Court concluded, having identified the correct principles in He, that the inference should be drawn that the matters had been considered: see [64]-[65] and [68] of the Federal Circuit Court’s reasons above.

25    The role of an appellate court on the hearing of an appeal such as the present is the correction of error. Here, the suggested errors are an error by the Federal Circuit Court in inferring that the Tribunal considered the matters in regs 1.09A(3)(b)(iii) and (d)(iii) even though it did not expressly advert to them. There was certainly no error of principle since the Federal Circuit Court faithfully applied what the Full Court said in He at [79].

26    Where the court below draws an inference on facts which are not in dispute (which is the case here), the appellate court stands in the same position as the trial court in its ability to draw the inference. However, before it embarks on that process, it must be satisfied that an error has occurred: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 (‘Aldi’) at [47]-[48]. In this case, error will only be shown if this Court has the view that it would not have drawn the inference and it is of the view that the difference of opinion between it and the court below is such that it bespeaks the presence of error rather than mere disagreement: Aldi at [49].

27    In relation to reg 1.09A(3)(b)(iii), Mr Godwin submitted that once the Tribunal concluded that Ms Wang and Mr Barakat cohabited, the Federal Circuit Court should have inferred that it had not considered that matter from the failure by the Tribunal to advert to the question of whether the couple shared the housework.

28    The Tribunal reasoned this way:

12.     The Tribunal questioned the applicant about the living arrangements. The applicant thought they lived in a public housing property but she said she was not sure because she does not understand Australia. The Tribunal notes that the applicant does not need to “understand Australia” to be able to speak to her partner to ask about their place of residence. The applicant then said that she has limited English to be able to communicate with the sponsor and they only talk about simple matters. Putting aside the Tribunal’s view that a conversation about a place of residence is a simple one, the Tribunal is concerned by the applicant’s claimed inability to communicate with her partner on any matter of complexity. The Tribunal is not convinced that a couple is able to form a mutual commitment to a relationship in circumstances where they are limited to very basic conversations.

13.     The Tribunal is prepared to accept that the applicant and the sponsor live at the same address. However, the Tribunal is not convinced that they have established a joint household because the Tribunal is not satisfied that they have adequate knowledge about each other or that they have adequate communication with each other. There were discrepancies in the couple’s oral evidence to the Tribunal that caused the Tribunal to question the nature of their living arrangements. For example,

a.     The Tribunal asked both parties about the applicant’s last day of work. The sponsor said she started 8.30 pm and finished about 4 am or 5 am. The applicant said she started at 10 pm and finished at 3 am. The sponsor said he picked her up from work, so he might be expected to be aware when the applicant was at work. The applicant said that she spent time cleaning and talking to friends and her time at work was extended but the Tribunal’s question was about the time she had spent at work, not about the nature of the work.

b.     The applicant informed the Tribunal they do grocery shopping on Sundays and Thursdays. The sponsor said they shop on Mondays or sometimes on Sundays and Thursdays. The applicant said they shop at the Chinese shops at Auburn, including meat shops and vegetable shops, but rarely at the big shops. The sponsor said they normally shop at Woolworths.

14.     The Tribunal is of the view that if the couple did establish a joint household, they should be more familiar with such arrangements.

29    The evidence of Mr Barakat was that Ms Wang did not pay him money but that she did do the housework. As I have explained above, Mr Barakat’s evidence that his pension had been reduced for cohabiting with Ms Wang strongly suggested that it would be economically irrational for Mr Barakat to support Ms Wang’s application for the visa by cohabiting with her and pretending to be her de facto partner. If the Tribunal had actually considered the question of who did the housework, and in return for what, it would been forced to confront the significance of this evidence.

30    I therefore do not think that it is open to infer from [12]-[14] that the Tribunal did consider the matter in reg 1.09A(3)(b)(iii). Whilst giving due deference to the views of the Federal Circuit Court to the contrary, I am persuaded that the difference of opinion on this issue which exists bespeaks the presence of error in the court below. Consequently, I conclude that the court below erred in drawing the inference that it did. Further, for the reasons just given, the failure to advert to this matter was material: cf. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40.

31    Turning then to the question in reg 1.09A(3)(d)(iii), that is to say, ‘the degree of companionship and emotional support that the persons draw from each other’, Mr Godwin submitted that the Tribunal had not made a finding about this matter. I do not accept this submission. At [24], the Tribunal made this finding:

24.     The applicant also repeatedly informed the Tribunal that her English is poor and that as a result, her ability to communicate with the sponsor is limited. The Tribunal has formed the view that the parties do not adequately communicate with each other and have little knowledge about each other. The Tribunal acknowledges the submission from the applicant’s representative that the inability to communicate should not be fatal to this application and does not preclude the existence of a genuine relationship. The representative submits that the level of communication is sufficient for their purposes. In the Tribunal’s view, ability to communicate with one’s partner, while not determinative, is a very significant aspect of the relationship. That is, the Tribunal is not convinced that the parties were able to form a genuine and mutual commitment to this relationship if they are unable to effectively communicate with each other and their communication is limited to very basic matters, as the applicant repeatedly stated to the Tribunal. The Tribunal is not satisfied there is a mutual commitment to the relationship. The Tribunal is not satisfied the couple view their relationship as a long term one. Given their limited capacity to communicate, the Tribunal is not satisfied they draw on each other for comfort and emotional support.

32    The last sentence of this is a finding of the matter in reg 1.09A(3)(d)(iii). It is true that the words used do not precisely match the wording of (d)(iii), but the issue is to be considered as one of substance and not form and, as a matter of substance, the last sentence is a finding about the subject matter of reg 1.09A(3)(d)(iii).

33    It follows that Ms Wang’s complaint about reg 1.09A(3)(b)(iii) should be upheld but not her complaint about (d)(iii).

Apprehended Bias

34    Here the question is whether a hypothetical fair-minded lay observer, properly informed about the proceedings, might reasonably apprehend that the decision-maker might not bring an impartial mind to bear in making the decision. There are two stages in this test: first, what might lead the decision-maker to decide a case other than on its legal and factual merits; and, secondly, a logical connection between the identified thing and the feared deviation from deciding the case on the merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (‘Ebner’) at [8]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at 98-99 per Nettle and Gordon JJ.

35    Mr Godwin’s submissions on apprehended bias had one central proposition and several illustrations for colour and movement. The submissions were based on the transcript of the hearing. The central proposition was that the Tribunal showed itself during the hearing to be entirely committed to the idea that a couple, who could barely communicate could not be in a committed relationship. Whilst it was true that the Tribunal acknowledged in its reasons that an inability to communicate might not be ‘fatal’ to the existence of a de facto relationship (see [24]), this was not the impression it gave at the hearing.

36    Ms Godwin instanced this exchange at CB492 line 5 – CB493 line 26:

Member:     You don’t take very much interest about your husband’s affairs or your husband or the way he survives. You don’t really know what kind of pension he’s getting, you don’t know what accommodation he’s living in, you don’t know where or when he’s stopped working or why he’s stopped working. What information do you know about him?

Applicant:     Well because after we come together I have been looking after him. And about what happened previously because my English is not really good so I haven’t really ask.

Member:     How do you form a committed relationship with someone before you are able to communicate? I’m not asking anything complicated. I’m asking fairly basic questions about very basic aspects of life and you… you can’t communicate with him because of poor English. How do you form a relationship without communicating?

Applicant:     We lived together and about this kind of issue we didn’t really pay attention to it. And mainly his doing everything and he know that [inaudible] give me single idea.

Member:     My question is how are you able to have a committed relationship with someone if they are not able to communicate?

Applicant:     [inaudible]

Member:     When a poor relationship it’s not just about the simple things I mean when you form a relationship you need to know about the other person to actually be able to like them, for them to be able to like you. You do need to have complex conversations to survive. It’s not only about simple conversations. It’s not enough for you to say we can talk about simple things.

Applicant:     How do I put it I said it again I can’t really remember.

Member:     I’m finding it very difficult how you’re able to form a committed relationship with someone with when you are not able to communicate.

Applicant:     Simple thing we can communicate.

Member:     Yes, but my point is when you’re in the relationship with someone, when you have a powerful relationship you need to be able to communicate on more than just the simple things. Simple things in life aren’t really enough if you’re forming a relationship with someone.

Applicant:     Well if my English not good so occasionally we would have some conflicts, small conflicts.

Member:     Ms Wang, I do have to consider whether you do have a committed and genuine relationship with your partner so far from what I’ve heard from you I’m having great doubts that that is the case.

Applicant:     Well like you said I actually made an affirmation and I am telling the truth. We do live together and we have this relationship. I’m too nervous.

Member:     Ms Wang it’s not much telling me all the time you’re very nervous. I’m not asking you anything remotely complicated, I’m asking you very simple things about your and your partner’s daily lives. This shouldn’t affect that…

Applicant:     I don’t know. I’m just nervous.

37    Whilst this kind of hectoring examination is to be deprecated, I do not think that the Tribunal’s mind was closed on the issue. Whilst it may be accepted that it is possible for a committed relationship to exist in circumstances where communication between the parties is difficult because of language difficulties, it is certainly an uncommon occurrence. A degree of scepticism on the part of the Tribunal was justified and it was entitled to explore the limits of the proposition robustly. I do not accept, by itself, that this makes good a case of apprehended bias.

38    Moving then to Mr Godwin’s ancillary submissions: what these drove at was that, when one looked at a number of exchanges between Ms Wang and the Tribunal, they together revealed a degree of animus towards Ms Wang that was sufficient to give rise to a reasonable apprehension of bias. The existence of such an animus would certainly satisfy the second limb of the Ebner test. The question therefore is whether the transcript provides sufficient material to justify the conclusion that a hypothetical fair-minded lay observer, properly informed about the proceedings, would think the animus existed. I will shorten that expression to a ‘reasonable apprehension’ in what follows.

39    Worth mentioning are the following five examples. First, at CB486 lines 5-10, this exchange occurred:

Member:    Why do you have your address and your husband’s name and date of birth on a piece of paper in front of you? Why do you need your husband’s name and date of birth on a piece of paper in front of you Ms Wang?

Applicant:     She said because she’s really nervous. She go to the toilet already three times.

40    Although the record of the proceedings records this exchange as having occurred between Ms Wang and the Member, I infer that it was in fact between the Member and Ms Wang’s agent or her interpreter. Which of these is so it is not certain. Regardless, while the Member’s words are certainly aggressive, without knowing what was on the piece of paper it is difficult to say that it was inappropriate. I do not think that it gives rise a reasonable apprehension, at least not by itself.

41    Secondly, at CB486, the member asked Ms Wang whether the apartment that she and Mr Barakat resided in was public housing. This exchange took place at CB486 line 21 to CB487 line 2:

Member:     Is the property a public housing apartment?

Applicant:    Should be. Member.

Member:     Well you should know that.

Applicant:     Well because I already stay in Australia and I know that every week I pay money.

Member:     Well you have to understand in Australia you might need to ask your husband, your partner whether or not this is a public housing or private property. You need to understand that in Australia.

42    This is certainly at least patronising and even perhaps, as Mr Godwin submitted, a little strange. However, I do not think that it gives rise a reasonable apprehension, at least by itself.

43    Thirdly, Mr Godwin relied on this exchange at CB492 lines 5-10:

Member:     You don’t take very much interest about your husband’s affairs or your husband’s or the way he survives. You don’t really know what kind of pension he is getting. You don’t know what accommodation you’re living in, you don’t know where or when he stopping working or why he stopped working. What information do you know about him?

    [Errors in original]

44    Mr Godwin says this is unfair which I think may to an extent be well-founded. Ms Wang had given evidence about the reduction in Mr Barakat’s pension. And, fairly viewed, a tenable reading of her evidence was that she did know it was public housing. However, even so, I do not think that, by itself, this gives rise to a reasonable apprehension.

45    Fourthly, Mr Godwin relied on a passage at CB493 lines 19-26:

Applicant:     Well like you said I actually made an affirmation and I am telling the truth. We do live together and we have this relationship. I’m too nervous.

Member:     Ms Wang it’s not much telling me all the time you’re very nervous. I’m not asking you anything remotely complicated. I’m asking you very simple things about your and your partner’s daily lives. This shouldn’t affect that…

Applicant:     I don’t know. I’m just nervous.

46    Again, whilst this is robust, I do not think it gives rise by itself to a reasonable apprehension.

47    Fifthly, Mr Godwin relied upon this exchange at CB505 lines 14-26:

Member:     Ms Wang, I’m not finding what you are telling me very convincing especially when some purpose for you coming to Australia, whether it’s to find a partner or stay here by other means, stay here to work I don’t know but what you’re saying does not make any sense.

Applicant:     Then I can’t really do anything because I am telling the truth.

Member:     And I’m also wondering what your motivations are in entering this marriage because at times to me as if you spend all of somebody else’s money to come to Australia. You really wanted to stay in Australia to be able to repay the debt and make some money and the easiest way to do that was to marry someone and apply for a partner visa.

Applicant:     I have never thought about it that way.

48    The gravamen of this appears to be the suggestion that Ms Wang had borrowed heavily to come to Australia. She therefore needed to stay in Australia to be able to repay the debt and make some money. The easiest way to do this was to enter into a de facto relationship with someone and apply for a partner visa. That was a legitimate matter to put to Ms Wang. Her motivations in coming to Australia were relevant to the questions at hand. However, as with the matters above, the tone of this exchange is regrettable. By itself, however, I do not think that this gives rise to a reasonable apprehension.

49    It is useful to consider these matters cumulatively. With some considerable hesitation, I have come to the view that cumulatively they do not give rise to a reasonable apprehension. The Tribunal expressed itself vigorously as being opposed to the idea that there could be a genuine relationship in which communications were difficult because of language problems. But it was permitted to do this. Whilst the manner in which the Tribunal thereafter questioned Ms Wang is to be regretted I do not think that it gives rise to a reasonable apprehension of bias.

50    The third contention is therefore rejected. For completeness, Mr Godwin canvassed a number of other matters in the transcript but I do not think any rose as high as the above. Lest it be thought I have not considered them, I have.

Result

51    To the extent necessary, leave should be granted to file the amended notice of appeal handed up on the day of the hearing and, if necessary, time should be extended too. The appeal should be allowed with costs. The orders of the Federal Circuit Court should be set aside and in lieu thereof orders should be made quashing the decision of the Tribunal and remitting the matter to the Tribunal, differently constituted, for fresh determination. The Minister should pay Ms Wang’s costs in this Court and, to the extent there are any, in the court below.

Associate:

Dated:    10 June 2022