Federal Court (Full Court). If a visa applicant wrongly answers a question in a visa application form and in a subsequent visa application freely answers the same question correctly, could the latter answer be said to indicate that the incorrect answer did not involve purposeful falsity for the purpose of PIC 4020? Does the fact that the IELTS exam on which the Appellant's score was 7 suggest that the Appellant knew the meaning of the legal term "conviction"?
The Federal Court (FCA) said as follows:
87 In Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [67], Gummow ACJ, Hayne, Crennan and Bell JJ explained as follows:
An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made.
(Emphasis in original.)
88 We note that in CNY17, Kiefel CJ and Gageler J (in dissent on the primary issue) cast some doubt on the impermissibility of considering the reasons of a decision-maker in determining whether an allegation of apprehended bias is established, stating (at [20]) that “the totality of the circumstances includes the decision and the reasons that the [Tribunal] has given for the decision”. Edelman J (who was part of the majority on the central issue, but wrote separately) said (at [135]) that in some cases, it might be relevant to consider the reasons for decision in assessing apprehended bias:
Apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry. If apprehendedbias is assessed at the conclusion of a hearing, as the appeal in this case requires, then the reasons for decision might revealmatters relevant to the consideration of whether a reasonable apprehension exists. It would be absurd if, on the one hand, remarks made by the decision maker during the course of a hearing could be considered as part of an assessment of the presence of reasonable apprehension of bias but, on the other hand, remarks at the conclusion of the proceeding could not. However, remarks atthe conclusion of a proceeding or in reasons for decision are only one of the circumstances to take into account. In MichaelWilson & Partners Ltd v Nicholls, a joint judgment of four members of this Court cautioned against the error of assuming a reasonable apprehension of a decision maker’s bias and using comments in the reasons for judgment by the decision maker to “confirm, enhance or diminish the existence of a reasonable apprehension of bias”.
(Emphasis added.)
93 At J[13] the primary judge held that he was “unable to give any weight” to the appellant’s evidence regarding the shooting gesture, but in fact what his Honour did was reject that unchallenged evidence on several grounds. In our respectful view his Honourerred in doing so:
(a) at J[13](i), the primary judge said that “[t]he applicant failed to discharge [his] evidentiary onus, in that no acceptable evidence of any weight was elicited as to which two fingers were alleged to have been pointed at the applicant, the way in which such fingers were alleged to have been pointed, nor as to how the pointing of two fingers could reasonably, and in any event, have thereby constituted a shooting gesture”.
The appellant’s evidence, on which he was not cross-examined, was that the Tribunal member “made a shooting gesture by pointing two fingers at me.” ...
Some of the questions to the FCA were as follows:
Question 1: The Appellant started to answer a question asked by the Tribunal with the words "To be very frank I". The Tribunal interrupted him and said "I don’t want you to be anything other than what you swore you would be earlier; just be truthful". May the Tribunal's remark have been suggestive of apprehended bias, as the words the Appellant used are commonplace in everyday speech?
Question 2: If a visa applicant wrongly answers a question in a visa application form and in a subsequent visa application freely answers the same question correctly, could the latter answer be said to indicate that the incorrect answer did not involve purposeful falsity for the purpose of PIC 4020?
Question 3: Does the fact that the IELTS exam on which the Appellant's score was 7 suggest that the Appellant knew the meaning of the legal term "conviction"?
Question 4: Could the Tribunal, without evidence to this effect, find that "it was implausible that the appellant would not know that he had been convicted when he had gone to court, had a hearing before a magistrate, was found guilty, convicted, fined and put on a good behaviour bond"?
Question 5: Is a Tribunal applicant's view that the offence they were convicted of was not serious relevant to whether their answer in a visa application that they had never been convicted of an offence was an innocent mistake for the purpose of PIC 4020?
Question 6: Do the remarks of Kiefel CJ and Gageler and Edelman JJ in CNY17 overturn the decision in Michael Wilson?
Question 7: Was the meaning of the evidence of the Tribunal's gesture given by the Appellant before the primary judge plain, without a requirement for the Appellant to further identify the gesture?
Question 8: The primary judge said that "there was no independent and objective evidence led by the applicant by way of corroboration of the applicant’s claim when such corroboration…could have come from the applicant’s representative", who also attended the Tribunal hearing. Was there a need for the Appellant to "put on evidence to corroborate his account when his evidence was not contradicted by other evidence, and was not challenged in cross-examination"?
Question 9: The primary judge said that it was of "further significance" that "the audio recording does not record any protest having been made by either the applicant, or the applicant’s representative, at the time immediately after the alleged pointing gesture." Might the lack of protest to the alleged shooting gesture be relevant to whether the primary judge should give weight to the gesture if the gesture was made in a way which was hostile and intimidatory?
Question 10: Might the lack of protest to the alleged shooting gesture be relevant to whether the primary judge should give weight to the gesture if the gesture was made merely as a non-verbal explanation of the meaning of "armed robbery"?
The FCA answered those questions as follows: